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Document
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P-472
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File #
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P-9200815
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Institution/HIC
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Ministry of Culture, Tourism and Recreation
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Summary
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ORDER BACKGROUND: Two requests were received by the Ministry of Tourism and Recreation (now the Ministry of Culture, Tourism and Recreation) (the Ministry) pursuant to the Freedom of Information and Protection of Privacy Act (the Act ) for access to records relating to the proposed renovation of the "Forum" facility at Ontario Place. Specifically, the requester sought access to records: ... pertaining to the negotiation or implementation of contracts between Ontario Place Corporation (the Corporation) and [a number of companies or an affiliate of one of the companies]. The Ministry identified a number of records that were responsive to the request. The Ministry then notified a company which might have an interest in the disclosure of the records as a third party to the request. The company, represented by its solicitor, objected to the release of most of the responsive records. The Ministry then made the decision to grant access to some documentation but refused to disclose 10 records based on the exemptions contained in sections 17 and 18(1)(c) and (d) of the Act . The requester appealed the denial of access. Mediation was not successful and notice that an inquiry was being conducted to review the decision of the Ministry was sent to the Ministry, the appellant and the company (the affected person). Representations were received from all parties. ISSUES: The issues arising in this appeal are: A. Whether the discretionary exemptions provided by sections 18(1)(c) and (d) of the Act apply to Record 2. B. Whether the mandatory exemption provided by section 17 of the Act applies to Records 1, 3, 4, 5, 6, 7, 8, 9 and 10. SUBMISSIONS\CONCLUSIONS: ISSUE A: Whether the discretionary exemptions provided by sections 18(1)(c) and (d) of the Act apply to Record 2. Record 2 is a one page excerpt from the minutes of the July 7, 1992 meeting of the Board of Directors of Ontario Place Corporation. The information contained in the record compares revenue, expenses and profits for the year 1992 with projected revenues, expenses and profits for the year 1993. Similar comparative figures are provided concerning attendance, ticket sales, parking/concessions, sponsorship, venue rental fees, artist fees, production expenses and advertising. Sections 18(1)(c) and (d) of the Act , state: 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; Representations on this issue were received from the appellant and the Ministry. The appellant takes the position that: ... disclosure of the requested records, far from prejudicing the economic interests of a government institution, would in fact result in potential economic benefit to government institutions resulting from greater public scrutiny of contracts involving the public purse including potentially a more competitive bidding process. The Ministry, however, in refusing to disclose Record 2, states that: By releasing this information it could be expected to be injurious to the economic and/or financial interests of the province as the pending contract with [the company] is still in the negotiation stage and any premature release of information may be reasonably expected to damage the ongoing negotiations. In Order 48, former Commissioner Sidney B. Linden expressed the following test to be applied in situations where an institution or an affected person relies upon the exemptions provided by section 17 and 18 of the Act : In all cases where a claim for exemption is made under sections 17 or 18 of the Act , an onus rests with the institutions and/or affected third parties to demonstrate that the harms envisioned by these sections are present or reasonably foreseeable. In the absence of evidence to support any such claims, in my view, the burden placed on the institution under section 53 has not been satisfied, and the information in question should be released to the appellant. In its representations, the Ministry does not indicate, with any specificity, how the release of the information contained in Record 2 would harm the contractual negotiations with the company. On this basis, I find that the Ministry has not met the evidentiary burden necessary to support the section 18(1)(c) or (d) exemptions. The Ministry then goes on to state that "... disclosure of this information would permit OPC's competitors to bargain with performing artists with an unfair advantage over OPC." It should be pointed out that Record 2 reports revenues, expenses and profits for the entire 1992 season, as well as projections for the 1993 season, on a consolidated basis. The information presented, therefore, is not specific enough to provide a competitor with any useful insights on how the Corporation deals with individual artists. For the reasons specified, therefore, the Ministry has failed to prove that the exemptions set out in sections 18(1)(c) and (d) of the Act apply to this record. ISSUE B: Whether the mandatory exemption provided by section 17 of the Act applies to Records 1, 3, 4, 5, 6, 7, 8, 9 and 10. Section 17(1) states, in part, as follows: A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to, (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; (b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied; (c) result in undue loss or gain to any person, group, committee or financial institution or agency; ... In Order 36, former Commissioner Sidney B. Linden enunciated a test for
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Legislation
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FIPPA
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17(1)(a)
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18(1)(c)
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18(1)(d)
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Section 53
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Subject Index
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Signed by
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Irwin Glasberg
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Published
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Jun 08, 1993
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Type
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Order
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