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Document
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P-839
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File #
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P-9400200
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Institution/HIC
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Ministry of Economic Development and Trade
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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 Economic Development and Trade and the Ministry of Natural Resources each received the same seven-part request for access to records relating to two named companies. The first two parts of the request were directed to the Ministry of Natural Resources and are not included in the issues addressed in this order. The Ministry of Economic Development and Trade (the Ministry) addressed the remaining portions of the request for records pertaining to security interests held by or on behalf of the Northern Ontario Development Corporation (the NODC) or the Ontario Development Corporation (the ODC) in two named companies. For ease of reference and because the two companies are related and the responsive records are the same, I will hereafter refer to the two named companies as the Company. The requester is another lumber company operating in the same area. The request is for information about the financial assistance given in the form of loans and guarantees given by the ODC and the NODC to the Company. Due to the nature of the request, the records also include information relating to the financial security held by other financial institutions and span a period of almost twenty years from 1977 to 1993. The Ministry identified numerous records responsive to the request and granted partial access to the records. The Ministry also indicated that disclosure of the remaining records may affect the interests of the Company and certain lending institutions (the affected parties). The Ministry notified the Company and the affected parties of the request and asked for representations regarding disclosure. Because the Company and the affected parties objected to the disclosure of the remaining records, the Ministry denied access to these records. The requester appealed the decision to deny access. The records to which the Ministry has denied access are listed in Appendix "A" to this order. The records consist of loan and guarantee agreements and amendments thereto, legal opinions, guarantees, correspondence and internal memoranda related to the financing provided to the Company and to the subsequent realization of this security by the NODC and the ODC. The Ministry relies on the following exemption in denying access to the records: third party information - section 17(1) Notices of Inquiry were provided to the appellant, the Ministry, the Company and the affected parties. Representations were received from the appellant, the Ministry, the Company and one of the affected parties. DISCUSSION: THIRD PARTY INFORMATION For ease of reference and for the purpose of analysis, I have separated the records into the following categories: Category A includes documents such as Offers of Loan and Offers of Guarantees, Guarantee Agreements, Loan Agreements and amendments by way of Notice of Change: Records 1, 2, 3, 6, 10, 11, 13, 15, 16, 24, 27, 29, 30, 31, 37, 46, 59, 60, 63, 65, 69, 71, 72, 78, 80, 86, 89, 90, 91 and 92. Category B includes documents such as internal memoranda, correspondence from the ODC or the NODC and other correspondence: Records 49, 55, 76, 77, 82, 88, 97, 100, 102, 104, 108, 109, 110, 111, 112, 119, 121, 123, 129, 131, 132, 133, 134, 139, 140 and 141. Category C includes Assignments, Guarantees, legal opinions, corporate resolutions and correspondence: Records 4, 5, 7, 8, 9, 12, 14, 28, 32, 33, 34, 35, 39, 41, 42, 43, 47, 48, 50, 51, 54, 56, 61, 62, 64, 66, 67, 68, 73, 74, 75, 79, 84, 87, 93, 94, 95, 96, 98, 99, 115, 118, 128, 130, 136, 137, 138, 142 and 143. The Ministry, the Company and the affected parties claim that sections 17(1)(a), (b) and/or (c) of the Act apply to the records. For a document to qualify for exemption under this provision, the Ministry and/or the Company and the affected parties must satisfy each part of the following three-part test: 1. the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and 2. the information must have been supplied to the institution in confidence, either implicitly or explicitly; and 3. the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in sections 17(1)(a), (b) or (c) will occur. In its representations, the Ministry indicates that it supports and relies on the representations of the Company and the affected party regarding the application of section 17(1) of the Act to the records. Part One of the Test The Company and the affected party submit that the records contain commercial and financial information. I have reviewed the information in all the records. All the records relate to the financial assistance provided to the Company for its business undertaking and the security given by the Company. I am satisfied that it qualifies as financial and/or commercial information. I find that part one of the test has been satisfied with respect to all of the records. Part Two of the Test For the second part of the section 17(1) test to be satisfied, the records must have been supplied to the Ministry by the affected parties, either explicitly or implicitly in confidence. I will first consider the "supplied" part of this test. In their representations, both the Company and the affected party submit that the records were supplied to the Ministry. Previous orders have addressed the question of whether the information contained in an agreement entered into between an institution and a third party was supplied by t
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Legislation
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Subject Index
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Signed by
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Mumtaz Jiwan
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Published
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Jan 18, 1995
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Type
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Order
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