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Document
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P-946
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File #
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P-9400778
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Institution/HIC
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Ministry of Consumer and Commercial Relations
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The Ministry of Consumer and Commercial Relations (the Ministry) received a request for general information relating to franchising in Ontario, as well as to the possibility of creating franchising legislation in the province. The requester also sought access to specific information related to a named franchisor (the Franchisor) involved in a dispute with some of its franchisees. The requester is a reporter with an interest in these issues. The Ministry initially granted access to several records and denied access to others, either in whole or in part. At that time, the Ministry advised the requester that, pursuant to section 28 of the Act , it was notifying a number of third parties whose interests might be affected by disclosure of several additional records on which it had yet to make an access decision. The requester appealed the denial of access. In his letter of appeal, the appellant claimed that there was a public interest in the disclosure of the records. The Ministry subsequently notified a total of 11 individuals, companies, committees and associations (the affected parties). Upon receiving the consent of five of these parties and the partial consent of another, the Ministry forwarded some additional documentation to the appellant. The Ministry denied access to those records related to the two affected parties who objected to the disclosure of records affecting their interests and a portion of the records for which limited consent had been received. The Ministry advised the appellant that it had not received a response from three of the affected parties and would be making a decision on the relevant records in 30 days. It did not do so. A Notice of Inquiry was sent to the Ministry, the appellant and six of the affected parties whose interests in the records were still outstanding. Representations were received from the Ministry, the appellant, counsel jointly representing two of the affected parties associated with the Franchisor, and one other affected party, the Alberta Securities Commission (the ASC). The 52 records remaining at issue are described in Appendix "A" to this order, according to the index and numbering system used by the Ministry. In this order, I will refer to the records by their index number and document number as follows: (1)2 to refer to Record #2 in Index #1. In its submissions, the Ministry indicates that it is no longer claiming that section 14(1) applies to exempt Record (2)36 from disclosure. As this is a discretionary exemption, I will not consider it in this order. In addition, as section 21 is a mandatory exemption, I will consider its application to some records for which the Ministry has not claimed its application. At this time, the Ministry continues to rely on the following exemptions to deny access to the Records in Appendix "A", either in whole or in part: Cabinet records - section 12(1) advice to government - section 13(1) relations with other governments - section 15 third party information - section 17(1) invasion of privacy - section 21. DISCUSSION: CABINET RECORDS The Ministry claims that section 12(1)(e) of the Act applies to exempt the following Records: (2): 5, 6, 10, 11, 16, 17, 18, 21, 23, 27, 31, 32, 33, 34, 35, 36 and 38 (3): 8 from disclosure. Section 12(1) of the Act states, in part, as follows: A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including, (e) a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committees, or are the subject of consultations among ministers relating to government decisions or the formulation of government policy; It has been determined in a number of previous orders that the use of the term "including" in the introductory wording of section 12(1) means that the disclosure of any record which would reveal the substance of deliberations of an Executive Council or its committees (not just the types of records listed in the various subparagraphs of section 12(1)), qualifies for exemption under section 12(1). It is possible that a record which has never been placed before an Executive Council or its committees may qualify for exemption under the introductory wording of section 12(1). This result will occur where a ministry establishes that the disclosure of the record would reveal the substance of deliberations of an Executive Council or its committees, or that its release would permit the drawing of accurate inferences with respect to the substance of deliberations of an Executive Council or its committees. To qualify for an exemption under section 12(1)(e) of the Act , the Ministry must establish that the record itself has been prepared to brief a minister of the Crown in relation to matters that are either: (a) before or proposed to be brought before the Executive Council or its committees; or (b) the subject of consultations among ministers relating to government decisions or the formulation of government policy. [Order 131] With the exception of Records (2)10 and (3)8, all of the documents to which the Ministry has applied the section 12(1)(e) exemption consist of briefing notes and issue sheets. They cover the time period from January 28, 1993-June 27, 1994 and all concern the issue of franchising legislation in Ontario and, in some cases, make reference to the dispute involving the Franchisor and some of its franchisees. The Ministry submits that these records were prepared to brief the Minister of Consumer and Commercial Relations (the Minister) and/or the Premier on matters that were proposed to be brought before Cabinet. The Ministry also claims that these documents "also reflect consultation amongst ministers relating to government decisions or the formulation of government policy". The Ministry state
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Legislation
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FIPPA
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12(1)(e)
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15(a)
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15(b)
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17(1)(a), (b) & (c)
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Section 23
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13(1)
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Subject Index
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Signed by
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Anita Fineberg
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Published
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Jun 30, 1995
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Type
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Order
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