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Document
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PO-1832
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File #
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PA-990191-1
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Institution/HIC
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Ministry of Finance
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Summary
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NATURE OF THE APPEAL: The appellant made a request under the Freedom of Information and Protection of Privacy Act (the Act ) to the Ministry of Finance (the Ministry). The request was for access to records relating to the taxation of Gold Loans, hedging transactions, forward transactions and future sale transactions, as well as all documents relating to the calculation of "profit" and the determination of "proceeds" under the Mining Tax Act (the MTA ). The Ministry located a number of responsive records and provided the appellant with an interim decision on access and a fee estimate. Upon payment of the requested fee, the Ministry granted access, in whole or in part, to some of the responsive records and denied access to the remainder, pursuant to the following exemptions contained in the Act : advice or recommendations - section 13(1) intergovernmental relations - section 15(a) third party information - section 17(1) tax return information - section 17(2) solicitor-client privilege - section 19 information available to the public - section 22(a) The Ministry also indicated that parts of several records were severed as they are not responsive to the appellant's request. The appellant appealed the denial of access to the records. This office provided the appellant and the Ministry with a Notice of Inquiry requesting that the parties make representations on the issues identified therein. Submissions were received from both parties. In its representations, the Ministry has claimed the application of the discretionary exemptions in sections 13(1) and 19 to additional records beyond those referred to in its decision letter. After the receipt of the parties submissions in response to the Notice of Inquiry, I became aware of a recent decision of the Ontario Court of Appeal, General Accident Assurance Co. v. Chrusz [now reported at (1999), 45 O.R. (3d) 321]. This decision dealt extensively with the subject of litigation privilege under section 19, which is also an issue in the present appeal. Accordingly, I provided the parties with the opportunity to make supplementary representations on the impact, if any, which the Court of Appeal's decision in General Accident may have in the circumstances of this appeal. In addition, the Supplementary Notice of Inquiry also requested that the parties make submissions on the appropriateness of the late raising of the discretionary exemptions in sections 13(1) and 19 to some of the records at issue by the Ministry. Additional representations were submitted by both parties to the appeal. RECORDS: The records consist of memoranda, correspondence, e-mail messages and notes of telephone conversations. During mediation, the appellant confirmed he is not seeking access to Records II-1, II-3, II-13, II-18, II-19, II-24, II-29, II-30, III-1, III-2, III-4, III-6, III-7, III-8, III-9, IV-1 to IV-6. The appellant also confirmed that he is not seeking access to Records I-1, I-2 and I-3 as they are duplicates of documents found elsewhere. The Ministry has clarified that the exemption claimed in respect of Records II-25, II-26 and II-27 is section 19, not section 17 as indicated in the index of records forwarded to the appellant. Those records which are responsive to that portion of the request relating to the taxation of hedging transactions, forward transactions and future sale transactions are designated with the prefix II. Records which are responsive to that portion of the request relating to the calculation of "profit" under the MTA are designated with the prefix III. Records relating to the taxation of Gold Loans (Prefix I) and the determination of "proceeds" (Prefix IV) are no longer at issue in this appeal. PRELIMINARY ISSUE: LATE RAISING OF DISCRETIONARY EXEMPTIONS The Ministry provided this office with two sets of written representations, which it refers to as the public and private submissions. It would appear that the Ministry expected that the public submissions would be shared with the appellant in accordance with the practice adopted by the Commissioner's office for appeal files opened after July 1, 1999. Because this appeal was received prior to the date for the implementation of the new appeals process by this office, it was processed under the then-existing rules which did not allow for the exchange of representations between the parties, except in unusual circumstances. The Ministry argues that because its public submissions were to be shared with the appellant, he would be put on notice and would suffer no prejudice if the Ministry claimed additional discretionary exemptions to certain of the records. In fact, since the appeal was processed under the "old" rules, the Ministry's "public" submissions were not shared with the appellant and he was not notified that the Ministry intended to claim additional discretionary exemptions for some of the records. In the present case, the appeal was received by the Commissioner's office on May 31, 1999. A Confirmation of Appeal was provided to the Ministry by this office on June 17, 1999 advising that should the Ministry wish to claim additional discretionary exemptions, it would only be permitted to do so by July 22, 1999. No additional discretionary exemptions were claimed during this period. On September 2, 1999, the Mediator assigned to this appeal forwarded to the appellant an Index of records describing the records, the severances made to them and the reasons why the Ministry had denied access to them, with specific reference to the exemptions claimed. Again, no additional discretionary exemptions were claimed beyond those referred to in the decision letter to the appellant. The Ministry provided its submissions in response to the Notice of Inquiry on October 28, 1999. While the Index referred to above claimed the application of the exemptions in sections 13(1), 19 and 17(2) to some of the records, the Ministry's representations sought
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Legislation
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FIPPA
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17(2)
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Section 15
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Section 19
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Subject Index
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Signed by
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Donald Hale
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Published
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Nov 07, 2000
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Type
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Order
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