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Document
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PO-2019
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File #
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PA-010262-1
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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 Ministry of Finance (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to "all financial analyses of the lease of the Bruce Nuclear Power Stations". The requester is a newspaper reporter. Under section 28 of the Act , the Ministry notified two parties, Ontario Power Generation Inc. (OPG) and the Canadian Nuclear Safety Commission (the CNSC) as affected parties because their interests may be affected by the disclosure of the information contained in the records, seeking their views on the disclosure of the records. Following its receipt of the submissions of the affected parties, the Ministry decided to grant partial access to some of the records, and to deny access to others in full, claiming the application of the following exemptions contained in the Act : Cabinet records - sections 12(1)(b), (c), (e) and the introductory wording; advice or recommendations - section 13(1); relations with other governments - section 15(b); third party information - section 17(1); and economic or other governmental interests - section 18(a), (c), (d) and (e) of the Act . Along with its decision, the Ministry provided the requester with a detailed Index describing the records and the exemptions applied to each of them. The requester, now the appellant, appealed the Ministry's decision to deny access. During the mediation stage of the appeal, the Ministry agreed to the disclosure of certain portions of the records, specifically, pages 1 to 4 of Record 12, pages 1 and 4 of Record 25, and pages 1 to 6 of Record 27. The Ministry indicated that the undisclosed portions of these records continue to be subject to the exemptions claimed in the Index. The Ministry also advised the mediator that all remaining records continue to be subject to the exemptions previously claimed in the Index. Finally, the appellant determined that he wished to pursue access to all of the remaining records in this appeal and raised the possible application of section 23 of the Act (the public interest override). As no further mediation was possible, the matter was moved to the adjudication stage of the process. I decided to seek the representations of the Ministry, OPG and the CNSC, initially. All of these parties made representations in response to the Notice of Inquiry which I provided to them. The Ministry indicated that it was no longer relying on sections 12(1)(c) and (e), given the prospective nature of these exemptions. I shared the submissions received from the Ministry, OPG and CNSC, with the exception of a small portion from the Ministry's representations, with the appellant who also provided extensive submissions. The appellant's representations were then shared with the Ministry and OPG, who made additional submissions by way of reply. The 42 records, or parts of records, remaining at issue consist of financial analyses, spreadsheet models, a safety analysis, Minister's briefings and Cabinet presentations, as described in the Index provided to the appellant along with the Ministry's decision letter. DISCUSSION: CABINET RECORDS Introductory Wording to Section 12(1) It has been determined in a number of previous orders that the use of the term "including" in the introductory wording of section 12(1) means that any record which would reveal the substance of deliberations of Cabinet or its committees (not just the types of records enumerated in the various subparagraphs of section 12(1)), qualifies for exemption under section 12(1) [Orders P-11, P-22 and P-331]. It is also possible that a record which has never been placed before Cabinet or its committees may qualify for exemption under the introductory wording of section 12(1). This could occur where an institution establishes that disclosure of the record would reveal the substance of deliberations of Cabinet or its committees, or that its release would permit the drawing of accurate inferences with respect to these deliberations [Orders P-226, P-293, P-331, P-361 and P-506]. The Ministry takes the position that Records 1, 3, 4, 5, 6, 7, 8, 9, 10, 12, 17, 19, 21, 22, 25, 26, 28, 29, 30, 31 and 32 qualify for exemption under the introductory wording of section 12(1). In the Index originally provided to the appellant, the Ministry had not claimed section 12(1) for Records 3, 4 and 5. However, because section 12(1) is a mandatory exemption, I am obliged to consider its application to these records, in addition to those for which it was originally claimed. In its initial representations, the Ministry argued that Records 1, 3, 4, 5, 6, 7, 8, 9 and 10: . . . contain information that is reflected in the document submitted to Cabinet June 21, 2000 (Record 31) and/or the document submitted to the Minister of Finance as part of briefing for the Cabinet discussion (Records 32 and 30) and/or the Premier's briefing on June 22, 2000. [which reflected in Record 29] . . . Record 1 through 10 were prepared by SuperBuild's Financial Advisory Team. These records contain analysis of OPG's relevant to the Bruce Transaction. This analysis was used to prepare Cabinet documents and pertained to Cabinet's decision of whether or not to authorize OPG management to enter into the Bruce Transaction and the terms of any proposed transaction. It is public knowledge that SuperBuild's Financial Advisors were retained to review strategic directions for OPG and Hydro One, including a possible disposition, in whole or in part. It is reasonable to infer that Cabinet would be briefed on the considerations and conclusions presented by the advisors in order to make its decisions, and in that way the release of these documents would permit the drawing of accurate inferences regarding the substance of deliberations of Cabinet. The Ministry goes on to submit that Records 12, 17, 19, 21, 22, 25 and 26 are also exempt from disclosure under the introductory wording to section 12(1) on the same basis, as the information which they contain was included in the records that were submitted directly to Cabinet (Record 31), the briefing of the Minister of Finance (Records 28, 30 and 32) or the Premier's briefing (Record 29). It goes on to suggest that: It has been established in previous Orders of the IPC that the Premier has a unique leadership and control role in setting the priorities and supervising the activities of Cabinet and to the extent that records reflect consultations bearing on policy making and priority setting functions within the sphere of the Premier's authority as first minister, those records may be seen to reflect the substance of deliberations of the whole Cabinet (See Order #PO-1725). Similarly, it argues that the information contained in Records 12, 17, 19, 21, 25 and 26 also found their way into what it describes as "the Cabinet documents in Records 28 to 32". It concludes this portion of its submissions by stating that: Disclosing those Records would reveal the substance of matters that were put before Cabinet for deliberation and would thereby permit the drawing of accurate inferences with respect to those deliberations. In his representations, the appellant submits that the Ministry has faile
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Legislation
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FIPPA
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12(1)
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15(b)
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18(1)(a)
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18(1)(c)
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18(1)(d)
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18(1)(e)
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Section 23
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13(1)
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17(1)
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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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May 30, 2002
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Type
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Order
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