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Document
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PO-1853
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File #
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PA-000011-1
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Institution/HIC
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Ministry of Education
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Summary
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NATURE OF THE APPEAL: The Ministry of Education (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to "any and all records from January 1995 to the [date of the request] pertaining to the sale of approximately 33 acres of land constituting the rear portion of the Ernest C. Drury and Trillium school complex". The requester asked the Ministry to include any directives, records of meetings, memos or electronic mail regarding the disposition and disposal of these lands. The Ministry identified 13 responsive records, and granted partial access to each of them. Access to the remaining information was denied pursuant to either or both of the following exemptions contained in the Act : sections 17(1)(a), (b) and (c) - third party information sections 18(1)(c), (d) and/or (e) - economic and other interests of the Ministry The Ministry's decision letter also identified that, because the land in question belongs to the Crown, the Ontario Realty Corporation (the ORC) has custody and control of the majority of records relating to the sale identified by the requester. All parties in this appeal are aware of a parallel request for similar records which was made to the ORC, and which is also currently under appeal. The requester, now the appellant, appealed the Ministry's access decision. During mediation, the appellant abandoned his request for certain records, including all records subject to the section 17 exemption claim. Accordingly, these records and this exemption claim are no longer at issue in this appeal. The appellant also raised the possible application of the "public interest override" contained in section 23 of the Act . Further mediation was not possible and the appeal proceeded to the inquiry stage. I sent a Notice of Inquiry to the Ministry initially, and received representations in response. I then sent a copy of the Notice, along with the Ministry's representations, to the appellant. The appellant also submitted representations. PRELIMINARY MATTERS: The appellant identified in his representations that Record 4 may still be at issue in this appeal. This record was removed from the scope of the appeal during mediation, when it was determined that Record 4 was a duplicate of Record 11B in the parallel appeal involving the ORC. The Report of Mediator sent to the parties at the conclusion of the mediation stage indicates that Record 4 is no longer at issue, and the Notice of Inquiry which I provided to the parties also excludes Record 4 from the scope of this inquiry. Based on the documentation in the file, I have concluded that Record 4 is not at issue, and I will not address it in this order. RECORDS: The records which remain at issue in this appeal are the undisclosed portions of Records 8, 9 and 10. They consist of one memorandum, a second memorandum with attachments, and a series of e-mail messages. The authors and recipients of these records are all Ministry employees, and their identities have been provided to the appellant as part of the severed records disclosed to him in response to the request. DISCUSSIONS: ECONOMIC AND OTHER INTERESTS The Ministry takes the position that sections 18(1)(c), (d) and (e) of the Act apply to the remaining portions of the records. This section reads as follows: A head may refuse to disclose a record that contains, (c) information where the disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution; (d) information where the disclosure could reasonably be expected to be injurious to the financial interests of the Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario; (e) positions, plans, procedures, criteria or instructions to be applied to any negotiations carried on or to be carried on by or on behalf of an institution or the Government of Ontario; Section 18(1)(c) Section 18(1)(c) provides institutions with a discretionary exemption which can be claimed where disclosure of information could reasonably be expected to prejudice the economic interests of an institution or the position of an institution in the competitive marketplace (see Order P-441). In Order PO-1747, Senior Adjudicator David Goodis stated: The words "could reasonably be expected to" appear in the preamble of section 14(1), as well as in several other exemptions under the Act dealing with a wide variety of anticipated "harms". In the case of most of these exemptions, in order to establish that the particular harm in question "could reasonably be expected" to result from disclosure of a record, the party with the burden of proof must provide "detailed and convincing" evidence to establish a "reasonable expectation of probable harm" (see Order P-373, two court decisions on judicial review of that order in Ontario (Workers' Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 at 476 (C.A.), reversing (1995), 23 O.R. (3d) 31 at 40 (Div. Ct.)). In order to establish the requirements of the section 18(1)(c) exemption claim, the Ministry must provide detailed and convincing evidence sufficient to establish a reasonable expectation of probable harm as described in this section. The Ministry's representations emphasize the importance of timing with respect to the withheld information in Records 8, 9 and 10. The Ministry points out that the sale of this property has not been finalized, and refers to the possible harm and prejudice to an institution's interests in disclosing this information should the sale not go through. Both the appellant and the Ministry also refer to a recently concluded Ontario Municipal Board (OMB) hearing where the sale of the property was apparently conditionally approved. Based on the information provided to me, it appears
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Legislation
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FIPPA
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18(1)(c)
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Section 23
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Jan 10, 2001
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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