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Document
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P-512
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File #
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P-9200718
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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 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 access to all information submitted by a company regarding a mining proposal. The Ministry identified four records as responsive to the request, notified the mining company of the request and gave it the opportunity to make representations concerning the disclosure of the records. The mining company objected to disclosure of the four records. The Ministry granted access to one record, and denied access to three records pursuant to sections 15(a) of the Act . The Ministry indicated that sections 17(1)(a) and (c) of the Act also applied to one of the three records to which access was denied. The requester appealed the Ministry's decision. 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 appellant, the Ministry, the mining company and two First Nations bands involved in the negotiations surrounding the mining company's proposal. Written representations were received from the Ministry only. In the Ministry's representations it withdrew its objection to the release of two of the records in question, Records 1 and 3, for which it had only claimed exemption under section 15(a). Record 1 is a letter from the mining company to the Minister of the Environment, and Record 3 is the Mine Project Proposal report. Because the Ministry did not inform the parties of this change in its position and the mining company had objected to disclosure of these two records in response to the Ministry's original notice, a supplemental notice of inquiry was sent to all parties to the appeal advising them of the Ministry's withdrawal of its objection to the release of the two records. The mining company advised that it did not object to the disclosure of Records 1 and 3. As both the Ministry and the mining company do not object to the disclosure of Records 1 and 3, I am ordering that Records 1 and 3 be disclosed. The following discussion will therefore only deal with Record 2 which is the "Summary of the Terms of Agreement" between the mining company and the two First Nations bands. The Ministry is claiming the application of exemptions under sections 15(a) and 17(1)(a) and (c) of the Act to deny access to this record. ISSUES: The issues arising in this appeal are: A. Whether the mandatory exemption provided by section 17(1)(a) or (c) of the Act applies. B. Whether the discretionary exemption provided by section 15(a) of the Act applies. C. Whether section 23 of the Act applies. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the mandatory exemption provided by section 17(1)(a) or (c) of the Act applies. Sections 17(1)(a) and (c) of the Act read: 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 In order for a record to qualify for exemption under section 17(1)(a) or (c) the Ministry and/or the mining 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) or (c) of subsection 17(1) will occur. [Order 36] In its representations, the Ministry states that it considers the record to be commercial information as it forms the basis of an agreement between the mining company and the First Nations bands. It advises that the agreement outlines the benefits to the First Nations bands, subject to final agreement, in return for their support of the mining project. The mining company also submits that the record contains information of a commercial undertaking between the two parties. In my view, commercial information is information which relates to the buying, selling or exchange of merchandise or services. I have reviewed the information contained in the record and am satisfied that it qualifies as commercial information and, therefore, the first part of the test has been met. Having examined the record and the representations of the Ministry and the mining company, I am satisfied that the information contained in the record was supplied to the Ministry by the mining company and, therefore, the "supplied" aspect of part two of the test has been satisfied. In regards to whether the information was supplied in confidence, the Ministry and the mining company maintain that the record was supplied to the Premier and the Minister implicitly in confidence. Both parties state that normally, development projects are submitted to Ministry staff who would undertake a review. In this case, the company directly approached the Premier and the Minister in an effort to persuade them that the revised mining project would not require a hearing under the Environmental Assessment Act . The mining company approached the Minister who would ultimately be responsible for the decision to designate or not designate that the project be subject to a full hearing under the Environmental Assessment Act . The Ministry states that the mining company advised them that the records were intended as a brief for discussion purposes with the Premier and his Ministers and must not be considered as a project report or definitive environmental study in any way. In its representations, the mining company submits that the information was supplied in confidence to the Minister in a meeting on May 22, 1992. I accept that there was a certain degree of confidence impli
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Legislation
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FIPPA
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17(1)(a)
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Section 23
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Subject Index
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Signed by
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Holly Big Canoe
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Published
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Aug 05, 1993
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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