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Document
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P-513
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File #
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P-910252
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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 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 the written action plan, (Record 1); the contingency plan, (Record 2); the report, (Record 3); and, the written progress reports (Record 4); submitted by a named company which operates a pulp-mill in Ontario, pursuant to a Control Order issued by the Ministry on October 23, 1989 under the Environmental Protection Act (the EPA). The Ministry notified the named company of the request under section 28 of the Act . The named company objected to the disclosure of Records 1, 2 and 4; however, the Ministry decided to grant the requester access to all of the records, with the exception of figures 2 and 3 in Record 2. The named company (hereafter called the appellant) appealed the Ministry's decision to disclose Records 1, 2 and 4 on the basis that the mandatory exemption under section 17(1) applies to the records. 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 and the requester. Representations were received from the appellant and the Ministry only. A Control Order is issued by the Ministry under section 7 of the Environmental Protection Act (the EPA ) when an inspection report of the Ministry indicates that a contaminant discharged into the natural environment is a contaminant the use of which is prohibited by regulations or is being discharged in contravention of the EPA or its regulations. Under the EPA , a Control Order is a document which the Ministry is required to make public. The Ministry is also required to notify the municipality in which the contaminant is discharged of the Control Order. The records at issue were submitted to the Ministry as required by the Control Order. The records at issue in this appeal may be described as follows: Record 1 is a four-page document which identifies the specific equipment or process changes required to comply with the Control Order, the benefits of such changes and the timetable for their implementation. Record 2 consists of 67 pages and three appendices. It describes the plans, equipment, and procedures required to prevent or contain chemical spills from the mill into the natural environment. As indicated above, Figures 2 and 3 in this record, which are the blue prints that reveal security patrol checkpoints and environmental tour routes, have been withheld by the Ministry and are not the subject of this appeal. Appendices A, B, and C are entitled, respectively, "Regulation 309 - Driver Training Manual", "Chlorine Institute Emergency Kit `C' for Chlorine Tank Cars and Trucks", and "[the appellant's] Evacuation Plan". Record 4 consists of three progress reports covering the period of October 23, 1989 through December 31, 1990 (a total of seven pages, including the covering pages) which provide the Ministry with a status report of changes taking place at the appellant's mill to put the contingency plan into effect. The sole issue in this appeal is whether the mandatory exemption provided by sections 17(1)(a) and/or (c) of the Act apply to the records. These sections 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; 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 The information contained in the records relates to processes, equipment, and plans required to prevent or alleviate effects of the discharge of contaminants into the natural environment and reports outlining the steps taken and the results achieved to meet the requirements of the Control Order. In my view, this information is "technical" information and satisfies part one of the test. Part Two 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. All of the records at issue were supplied by the appellant to the Ministry pursuant to the requirements of the Control Order and I am satisfied that the "supplied" part of this test is satisfied. With regard to the issue of whether the records were supplied in confidence, the appellant states that all of the records were supplied implicitly in confidence while the Ministry's position is that only Record 2 was supplied implicitly in confidence. Although the evidence I have received on this issue is not totally convincing, I am prepared to accept that the appellant's expectation of confidentiality at the time he supplied the records were reasonable. Part Three In order to satisfy part three of the test, the party resisting disclosure, in this case the appellant, must present evidence that is detailed and convincing and must describe a set of facts and circumstances that would lead to a reasonable expectation that one or more of the harms described in section 17(1) would occur if the information was disclosed (Order 36). I have received representations from the appellant that the release of the records c
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Legislation
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Subject Index
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Signed by
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Asfaw Seife
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Published
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Aug 06, 1993
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Type
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Order
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