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Document
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PO-2320
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File #
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PA-040048-1
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Institution/HIC
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Ministry of Finance
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Summary
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BACKGROUND AND NATURE OF THE APPEAL: A provincial election was held in Ontario on October 2, 2003. During the course of the election campaign, the Liberal Party released a platform, outlining a series of initiatives it intended to implement if elected. The Liberal Party won the election. On October 17, 2003, a requester made a request under the Freedom of Information and Protection of Privacy Act (the Act ) to Cabinet Office for access to costing information relating to the election platform initiatives. Cabinet Office advised the requester that there were no records responsive to the request. The requester did not appeal this decision. On December 3, 2004, the requester resubmitted his request to Cabinet Office. The request reads as follows: I seek all information regarding the costing of implementation of the Liberal Party election platform as they were presented to Premier Dalton McGuinty and his Cabinet and his transition team and staff; as assembled by the Ontario Public Service including but not limited to, copies of correspondence, briefing notes, emails and memos or any communications between all parties involved on this subject. In accordance with section 25(1) of the Act , Cabinet Office forwarded the request to the Ministry of Finance (the Ministry) as the institution with custody of the requested records. Following discussions with the Ministry, the requester revised his request to the following: I seek any estimates of the cost of the implementation of the Fall 2003 Liberal party election platform initiatives as produced by Ontario Ministry of Finance staff. The Ministry identified 5 responsive records, and granted partial access to them. Access to the remaining records was denied, in whole or in part, on the basis of one or more of the following exemptions in the Act : section 12- Cabinet records section 17- third party commercial information section 18- economic and other interests of Ontario The Ministry also provided the requester with an index describing the records and identifying the exemptions claimed for each of them. The index includes more specific information than the decision letter. For Record 5, the index identifies the following specific exemption claims: sections 12(1)(b), (c) and (d) sections 18(1)(d), (f) and (g) The requester (now the appellant) appealed the Ministry’s decision. During mediation, the appellant narrowed the scope of his request to Record 5, which had been withheld in its entirety. Therefore, the undisclosed portions of Records 1-4 and the section 17 exemption claim are no longer at issue in this appeal. Further mediation was not successful, and the appeal was transferred to the adjudication stage. I began my inquiry by sending a Notice of Inquiry to the Ministry, setting out the facts and issues and seeking representations. The Ministry responded with representations. In these representations, the Ministry raised section 18(1)(c) as a new discretionary exemption claim for the first time. I revised the Notice to include the late raising of a discretionary exemption as an issue in this appeal, and provided the amended Notice and the Ministry’s representations to the appellant for reply. The appellant responded with representations, which did not address the issue of the late raising of the section 18(1)(c) exemption. I then shared the appellant’s representations with the Ministry. After reviewing them, the Ministry issued a revised decision to the appellant, disclosing all portions of Record 5 in the columns headed “ID” (meaning initiative number), “Initiative” and “Ministry”. The appellant confirmed that he was still interested in pursuing access to the remaining portions of the record. RECORD: The record is a 60-page document titled “Estimated Costs for Initiatives”. The document contains 8 columns headed: “ID” Initiative Ministry Year 1 Potential Costs Year 2 Potential Costs Year 3 Potential Costs On-going Total Cost Costing Assumptions All information in the first three columns has been disclosed. PRELIMINARY ISSUE: LATE RAISING OF NEW DISCRETIONARY EXEMPTION Previous orders have held that the Commissioner has the power to control the manner in which the inquiry process under the Act is undertaken. This includes the authority to establish time limits for the receipt of representations and to limit the time frame during which an institution can raise new discretionary exemptions not originally cited in its decision letter, subject, of course, to a consideration of the particular circumstances of each case. This approach was upheld by the Divisional Court in the judicial review of Order P-883 ( Ontario (Ministry of Consumer and Commercial Relations) v. Fineberg (21 December 1995), Toronto Doc. 220/89, leave to appeal refused [1996] O.J. No. 1838 (C.A.)). The objective of the policy allowing an institution 35 days after the date of a decision letter to raise additional discretionary exemptions is to provide institutions with a window of opportunity to raise new discretionary exemptions, but to restrict this opportunity to a stage in the appeal where the integrity of the process would not be compromised or the interests of the appellant prejudiced. The 35-day policy is not inflexible. The specific circumstances of each appeal must be considered individually in determining whether discretionary exemptions can be raised after the 35-day period. In its original decision letter to the appellant, the Ministry identified “section 18” as one basis for denying access to the various responsive records. The index provided to the appellant clarified that the Ministry was relying specifically on the exemptions in section 18(1)(d), (f) and (g). The Mediator’s Report issued to the parties at the completion of the mediation stage confirmed that these three section 18 provisions were the ones at issue in the appeal. In its initial set of representations, the Ministry raised section 18(1)(c) as a new exemption claim. The Ministry states that this exemption was not originally identified due to a “transcription error”, and argues that the appellant would not be prejudiced by having this new claim included within the scope of the inquiry. Counsel for the Ministry also takes the position that: I would do an injustice to my client not to argue the subsection, as my client’s case would not have been put forward completely, and an injustice could be the consequence. As noted earlier, after receiving the Ministry’s representations I amended the Notice of Inquiry to include the late raising of a new discretionary exemption claim as an issue, and offered the appellant an opportunity to provide representations on this issue. He did submit representations in response to the Notice, but they make no reference to this issue, nor did he refer to it in subsequent correspondence provided to me since that time. After considering the various circumstances of this appeal, I have decided to allow the Ministry to claim section 18(1)(c) as a new discretionary exemption. I have difficulty accepting the Ministry’s explanation that section 18(1)(c) was not identified earlier due to a “transcription error”, given the fact that the three specific components of section 18(1
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Legislation
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FIPPA
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12(1)
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12(1)(b)
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12(1)(c)
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18(1)(c)
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18(1)(d)
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18(1)(f)
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18(1)(g)
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Sep 13, 2004
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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