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Document
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P-765
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File #
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P-9400255
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Institution/HIC
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Ministry of Environment and Energy
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Summary
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NATURE OF THE APPEAL: This is a third party appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The Ministry of Environment and Energy (the Ministry) received a request for records relating to a named recycling company (the Company) from June, 1992 to the present. In particular, the requester indicated that he was seeking information which would be located in the files of three Ministry employees. The Ministry located 18 records which were responsive to the request and notified the Company of the request pursuant to section 28(1) of the Act . The Company objected to the disclosure of any information relating to it. Despite the Company's objections, the Ministry decided to grant partial access to the requester with certain information withheld from disclosure pursuant to sections 14(1)(d) and 17. The Company appealed the Ministry's decision to disclose any information relating to it. The requester appealed the Ministry's decision (Appeal Number P-9400085) to withhold information under section 17. I considered the portions of records at issue in that appeal in Order P-703 and I upheld the Ministry's decision. I will not address those portions of the record in this order. The requester did not appeal the application of the exemption in section 14(1)(d) and, consequently, the information which the Ministry has previously withheld does not form part of the present appeal. A Notice of Inquiry was provided to the Company, the requester and the Ministry. Representations were received from all three parties. The records at issue in this appeal consist primarily of letters, memoranda and occurrence reports. These records are more fully described in Appendix "A" to this order. For greater clarity I have identified the records from which portions have been withheld by the Ministry. DISCUSSION: THIRD PARTY INFORMATION In this case, the Ministry is prepared to release the records or portions of records at issue. For a record to qualify for exemption under sections 17(1)(a), (b) or (c) the party resisting disclosure (the Company) 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. Part One of the Test The Company submits that the records contain commercial information. In my view, commercial information is information which relates solely to the buying, selling or exchange of merchandise or services (Order P-493). I have reviewed the records and, in my view, much of the information contained in them is only marginally related to the commercial activities of the Company. However, I am prepared to accept that the information contained in Records 1, 2, 3 and 4 (correspondence between the Ministry and the Company), 5, 6, 7, 10 and 16 (internal Ministry memoranda) and 18 (a newspaper article relating to the Company) may be characterized as "commercial" in nature. Accordingly, the first part of the section 17 test has been met for these records. Records 9, 11, 13, 14 and 17 are Occurrence Reports generated by Ministry staff in the context of inspections conducted relating to complaints about emissions from the Company's premises or the Company's status with respect to a Certificate of Approval. I find that the information in these records does not qualify as commercial information within the meaning of section 17 of the Act . Records 8, 12 and 15 are Ministry generated memoranda which relate to the Ministry's activities with respect to the Company and do not, in my view, contain any information of a commercial nature. As I have found that Records 8, 9, 11 - 15 and 17 do not contain commercial information, they do not qualify for exemption under section 17. Part Two of the Test I have found that Records 1 - 7, 10, 16 and 18 contain commercial information and have, therefore, met the first part of the test. In order for the second part of the section 17(1) test to be satisfied, the record must have been provided to the Ministry by the Company, either explicitly or implicitly in confidence. Several previous orders have determined that information contained in a record would reveal information "supplied" within the meaning of section 17(1) of the Act , if its disclosure would permit the drawing of accurate inferences with respect to the information actually supplied to the Ministry (Orders P-241 and P-472). The Company does not provide any evidence which indicates that the information contained in the records was supplied by it or would reveal information supplied by it in confidence. Rather, the Company submits that the Certificate of Approval process should be confidential since the exchange with respect to the Certificate of Approval necessarily involves information about processes and site and recycling plans. It is important to note that information relating to the commercial activities of the Company was dealt with in Order P-703. In my view, the remaining information does not reveal information about the processes or site and recycling plans of the Company. With the exception of one record, none of the records contain any indication on their face that they were intended to be treated in a confidential fashion. Record 2 is a facsimile cover sheet which contains a standard form clause with respect to the confidentiality of the document. In my view, this standard clause is not sufficient to establish that the record was supplied to the Ministry in confidence for the purposes of the second part of the section 17(1) test. Accordingly, I am unable to agree that the information contained in Records 1 - 7, 10, 16 and 18 was "supplied in confidence", or would reveal information that was supplied in confidence, either explicitly or implicitly within the meaning of section 17(1). As the second part of the test has not been satisfied, I find that these records do not qualify for exemption under section 17. ORDER: l. I uphold the decision of the Ministry. 2. I order t
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Legislation
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FIPPA
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17(1)(a), (b) & (c)
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Subject Index
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Signed by
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Laurel Cropley
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Published
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Sep 26, 1994
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Type
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Order
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