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Document
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P-479
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File #
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P-9200651
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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 On May 10, 1993, the undersigned was appointed Inquiry Officer and received a delegation of the power and duty to conduct inquiries and to make orders under the provincial Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act . The Ministry of the Environment (now the Ministry of Environment and Energy) (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for information relating to Ministry approvals obtained by a third party developer for the construction of a sedimentation pond. The Ministry identified a number of records responsive to the request and notified the third party pursuant to section 28(1) of the Act . The third party objected to the release of any of the records. The Ministry, after considering the objections of the third party, granted partial access to the requester. Access was denied to some of the records pursuant to sections 17(1)(a) and (c) of the Act. The third party appealed the Ministry's decision. During mediation, the Ministry reconsidered its decision and agreed to release all of the responsive records to the requester. The requester then indicated he was no longer interested in receiving access to some of the records. The records remaining at issue in this appeal are described in Appendix A to this order. Further mediation was not possible and notice that an inquiry was being conducted to review the Ministry's decision was sent to the appellant, the Ministry and the requester. Written representations were received from all parties. The sole issue in this appeal is whether the mandatory exemptions provided by sections 17(1)(a) and (c) of the Act apply to the records at issue. These sections read 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; (c) result in undue loss or gain to any person, group, committee or financial institution or agency; or Pursuant to section 53 of the Act , the burden of proof that a record falls within a specified exemption lies upon the head. However, if, as in this case, a third party appeals the head's decision to release a record, the burden of proving that the record should be withheld from disclosure falls on the third party. For a record to qualify for exemption under section 17(1)(a) or (c), the third party appellant 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 In order to meet part 1 of the test, the appellant must establish that disclosure of the records would reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information. The appellant submits: ... the information is of a technical nature. The information was submitted by our engineering consultant. The Ministry makes the following representations with respect to part 1 of the section 17(1) test: ... the Ministry is of the opinion that the application and engineering reports are technical information which outlines the design and construction of the storm and sanitary sewer systems [emphasis added]. In Order P-454, Assistant Commissioner Glasberg defined "technical information" as follows: In my view, technical information is information belonging to an organized field of knowledge which would fall under the general categories of applied sciences or mechanical arts. Examples of these fields would include architecture, engineering or electronics. While, admittedly, it is difficult to define technical information in a precise fashion, it will usually involve information prepared by a professional in the field and describe the construction, operation or maintenance of a structure, process, equipment or thing. Finally, technical information must be given a meaning separate from scientific information which also appears in section 17(1) of the Act . Having reviewed the records, I find that all of the records with the exception of Records 1, 17, and 18, contain "technical" information. Accordingly, Records 2-16 satisfy the first part of the section 17 test. Record 1 is a cover letter from the consulting engineers to the Ministry setting out the enclosures submitted in support of the development application. The enclosures do not form part of the record at issue. Records 17 and 18 are internal Ministry memoranda which describe the requester's complaints about the appellant's sewer project and the Ministry's response. In my view, none of these three records contain "technical" information or any of the other types of information set out in section 17. As they do not satisfy the first part of the test, they do not qualify for exemption under section 17 (1) of the Act . The Ministry has not cited any other exemptions to deny access to Records 1, 17 and 18. Therefore, they should be disclosed to the requester. Part Two The second part of the test has two elements. First, the information must be supplied to the Ministry and secondly, it must be supplied in confidence , either implicitly or explicitly. In addition, the information contained in the record would "reveal" information "supplied" by the appellant 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-218, P-219, P-228 and P-241).
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Legislation
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Subject Index
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Signed by
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Anita Fineberg
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Published
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Jun 21, 1993
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Type
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Order
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