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Document
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P-584
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File #
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P-9300341
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Institution/HIC
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Ministry of Environment and Energy
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Summary
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ORDER BACKGROUND: The Ministry of Environment and Energy (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for Ministry records relating to two named properties located in the City of North York. The Ministry located individual environmental audit reports for each property which were responsive to the request. The Ministry further determined that the interests of a named company might be affected by disclosure of the information. The Ministry notified the named company pursuant to section 28 of the Act , and requested representations with respect to release of the information contained in the records. The named company objected to the release of the audits to the requester. In its representations to the Ministry, the named company provided the background to the creation of the records, the circumstances under which the records were submitted to the Ministry and the perceived consequences of disclosure of the records to the requester. The Ministry decided, after considering the representations made by the named company, to release the information. The named company, hereafter referred to as the appellant, appealed the Ministry's decision to disclose the records on the basis that the mandatory exemption under sections 17(1)(a), (b) and (c) of the Act applies to the records. In addition, the appellant submits that the audits were prepared for counsel with a view to litigation and are, therefore, subject to solicitor-client privilege. Mediation of the appeal was not successful and notice that an inquiry was being conducted to review the Ministry's decision was sent to the Ministry, the appellant and the original requester. Representations were received from the Ministry and the appellant only. The records at issue consist of the following documents (using the numbering provided by the Ministry): 17. Draft Phase I and II Environmental Audit - respecting a named address on Yonge Street - Re-printed on Feb. 25, 1993. 19. Fax to Gary Miller (MOE) from an employee (CRA Consulting Engineers) dated Feb. 23, 1993, with Site Assessment for several named addresses on Yonge Street attached. 22. Environmental Assessment printed on Feb. 23, 1993 respecting several named addresses on Yonge Street. ISSUES: The issues arising in this appeal are: A. Whether the mandatory exemption provided by section 17 of the Act applies to the records. B. Whether the common law doctrine of solicitor-client privilege is applicable to the records at issue. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the mandatory exemption provided by section 17 of the Act applies to the records. Sections 17(1)(a), (b) and (c) of the Act state 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; For a record to qualify for exemption under sections 17(1)(a) or (c) the party resisting disclosure 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 (a), (b) or (c) of subsection 17(1) will occur. [Order 36] Part one of the section 17(1) test The information contained in the record is the result of a technical study of the subject properties undertaken by a firm of consulting engineers who are experts in the field of environmental testing and analysis. The record details a number of analytical tests undertaken at the subject lands and states the conclusions of its authors as to certain environmental issues. I am satisfied that the first part of the section 17(1) test has been met as the disclosure of the record would reveal technical information. Part two of the section 17(1) test With respect to part two of the test, the appellant must meet two requirements. It must prove that the information was supplied to the Ministry and that it was supplied in confidence , either explicitly or implicity. The records at issue were commissioned and paid for by the appellant. When it became apparent to the appellant that contamination of the natural environment existed on the subject properties, it contacted the appropriate governmental agencies, including the Ministry, to alert them as to the nature of the problem. The subject records were then furnished to the Ministry by the appellant at the request of the Ministry. Although the Ministry has the statutory authority under section 18 of the Enviromental Protection Act to compel the production of such information, it was provided by the appellant voluntarily. I am satisfied that the information contained in the records was, accordingly, supplied by the appellant. In its representations, the Ministry acknowledges that all information supplied to it concerning environmental matters is considered to be "implicitly supplied in confidence". In situations where the contamination of the environment which is brought to the attention of the Ministry is not "grave" in nature, it is the policy of the Ministry not to disclose more than a summary of its information to the public. Accordingly, I am satisfied that, in these circumstances, it was the understanding of the appellant and the Ministry that this information had been supplied implicitly in confidence. Part three of the section 17(1
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Legislation
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FIPPA
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17(1)(a)
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17(1)(b)
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17(1)(c)
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Section 19
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Subject Index
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Signed by
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Donald Hale
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Published
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Nov 24, 1993
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Type
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Order
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