|
|
Document
|
|
PO-2195
|
|
|
|
|
|
File #
|
|
PA-020353-1
|
|
|
|
|
|
Institution/HIC
|
|
Ministry of Finance
|
|
|
|
|
|
Summary
|
|
BACKGROUND: The Ontario electricity market was opened to competition on May 1, 2002. The Energy Competition Act, 1998 embodies the framework for the creation of successor corporations to the former Ontario Hydro and the framework for the competitive electricity market. One of these successor corporations, Ontario Power Generation Inc. (OPG), was granted a transitional generating licence. This licence provides that, within 10 years following the date upon which the competitive energy market opens, OPG is required to have reduced its effective control over the Ontario marketplace to 35% of the supply options available to service Ontario. As a first step towards its divestiture requirements, OPG initiated a competitive auction process for the privatization of its Bruce Nuclear Facility. A number of proposals were submitted and Bruce Power was eventually selected. OPG and Bruce Power then negotiated a master agreement and a lease agreement to formalize arrangements. OPG has also announced plans to privatize additional generating stations in order to meet the conditions set out in its licence. In June 2002, the Provincial Auditor submitted an audit of the Bruce lease agreement to the Standing Committee on Public Accounts. According to the representations provided by the Ministry of Finance in the course of this appeal, the audit concluded, "the auction process was appropriate and consistent with standard business practices, that the bidding process was competitive and that the highest bidder won the auction". NATURE OF THE APPEAL: The Ministry of Finance (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to information relating to the lease of the Bruce Nuclear Facility. Specifically, the request included: ... copies of the Lease including any memoranda or other reports provided by OPG to the Ministry of Finance, which describes the rationale, mechanics and application associated with this transaction, and in particular, any descriptive or explanatory information pertaining to the fixed and variable payments from Bruce Power to OPG under the Lease. The Ministry identified 27 responsive records and notified OPG pursuant to section 28 of the Act. OPG identified certain portions of the records that could be disclosed, and objected to the disclosure of the remaining records. The Ministry then issued a decision letter to the requester, granting partial access to the records. Access to the remaining responsive records was denied in full or in part under sections 12(1) (cabinet records), 17(1) (third party information), and 18(1) (valuable information and economic and other interests of the government). The Ministry provided the requester with an index setting out the exemptions claimed for each responsive record. The requester (now the appellant) appealed the Ministry's decision. During mediation, the appellant agreed not to pursue access to Records 3 to 16. As a result, section 12(1) is no longer at issue in this appeal. Mediation did not resolve the appeal so it was transferred to the adjudication stage of the appeal process. I sent a Notice of Inquiry to the Ministry and OPG, inviting submissions on the issues raised in the appeal. Both parties provided representations to me. I then sought submissions from the appellant. The appellant chose not to submit representations. In its representations, the Ministry states for the first time that it is now prepared to disclose Records 21 and 22 in their entirety and additional portions of all remaining responsive records. OPG states in its representations that it does not object to the disclosure of these same records and portions of records. Records 1 and 2 are identified in the index as the "Lease Agreement" and the "Master Agreement" respectively. However, it is clear from the Ministry's representations that the numbering for these two records has been reversed. Accordingly, my discussion of Record 1 in the body of this order refers to the "Master Agreement", not the "Lease Agreement". RECORDS: There are eleven records that remain at issue in this appeal. Record 1 is the "Master Agreement" involving the Bruce Nuclear Power Development. Record 2 is the "Lease Agreement" involving the Bruce Nuclear Power Development. Records 17 through 19 are correspondence from OPG to the Provincial Auditor dated January 14, 2002, December 6, 2001, and November 27, 2001, respectively. Record 20 is a slide presentation by OPG to the Provincial Auditor dated July 24, 2001. Records 23 and 24 are slide presentations relating to aspects of the lease. Records 25 and 26 are letters dated February 1, 2002, and January 25, 2002, from OPG to the Ministry relating to financial aspects of the lease. Record 27 is an e-mail message dated January 18, 2002, from OPG to a Ministry official and an employee of the Ministry of Energy, Science and Technology, relating to the lease. Access to all of these records is denied in part. DISCUSSION: THIRD PARTY INFORMATION The Ministry and OPG rely on sections 17(1)(a) and (c) as one basis for denying access to all portions of records at issue in this appeal. General Principles 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; For a record to qualify for exemption under sections 17(1)(a) or (c), the parties resisting disclosure (in this case the Ministry and/or OPG) must satisfy each part of the following three-part test: the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and the information must have been supplied to the Ministry in confidence, either implicitly or explicitly; and 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. [Orders 36, P-373, M-29 and M-37] Part 1: Type of Information Previous orders have defined the terms "commercial information" and "financial information" as follows: Commercial Information Commercial information is information that relates solely to the buying, selling or exchange of merchandise or services. The term "commercial" information can apply to both profit-making enterprises and non-profit organizations, and has equal application to both large and small enterprises. [Order P-493] Financial Information The term refers to information relating to money and its use or distribut
|
|
|
|
|
|
Legislation
|
|
|
|
|
|
|
|
Subject Index
|
|
|
|
|
|
|
|
Signed by
|
|
Tom Mitchinson
|
|
|
|
|
|
Published
|
|
Oct 21, 2003
|
|
|
|
|
|
Type
|
|
Order
|
|
|
|
|
|
<<
Back
|
|
|