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Document
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P-125
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File #
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Appeal 880334
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Institution/HIC
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Ministry of Financial Institutions
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Summary
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O R D E R This appeal was received pursuant to subsection 50(1) of the Freedom of Informati on and Protection of Privacy Act, 1987 , (the " Act "), which gives a person who has made a request for access to a record under subsection 24(1) of the Act a right to appeal any decision of a head under the Act to the Information and Privacy Commissioner. The facts of this case and the procedures employed in making this Order are as follows: 1. On June 22, 1988, the Ministry of Financial Institutions (the "institution") received a request for the following information: The new Pension Benefits Act, 1987 (Ontario) and the accompanying regulations have now been proclaimed in force and require filing by the administrators of each Ontario regulated pension plan of a written statement of investment policies and goals on or before January 1, 1990. I would like to obtain a copy of all of the Statements of Investment Policies and Goals which have been filed since January 1, 1988. These Statements have been filed with the Pension Commission of Ontario (a branch of the Ministry of Financial Institutions). During a subsequent telephone conversation with an employee of the Pension Commission of Ontario, the requester agreed to exclude the names of the pension plans and their sponsors, and all other identifying names from the scope of his request. 2. On November 9, 1988, the institution wrote to the requester denying access to the requested records on the basis that they qualified for exemption under section 17 of the Act . In his letter of refusal the head stated that: This provision applies because disclosure of these records could prejudice significantly the competitive position of third parties. Additionally, release of these records could result in undue loss or gain to other groups. Severing the names of the pension funds will not preserve the identity of the third parties because included in the statements are investment goals and strategies of the pension funds. Not only is this commercial information which has been supplied in confidence to the Pension Commission of Ontario but includes information which enables easy identification of the third parties. 3. On November 21, 1988, the requester appealed the head's decision, and I gave notice of the appeal to the institution. 4. The records which were withheld by the institution consist of the Statement of Investment Policies and Goals of three pension plan funds. These records were obtained and reviewed by an Appeals Officer from my staff. Efforts were made by the Appeals Officer to settle the matter, however, settlement was not possible, because both parties maintained their original positions. 5. On June 30, 1989, I sent notice to the appellant, the institution and the three pension plan fund administrators (the "affected parties"), that I was conducting an inquiry to review the decision of the head, and invited representations from the parties. Enclosed with this letter was a copy of a report prepared by the Appeals Officer, intended to assist the parties in making their representations concerning the subject matter of the appeal. The Appeals Officer's Report outlines the facts of the appeal and sets out questions which paraphrase those sections of the Act which appear to the Appeals Officer, or any of the parties, to be relevant to the appeal. The Appeals Officer's Report indicates that the parties, in making their representations to the Commissioner, need not limit themselves to the questions set out in the report. 6. I have received representations from all of the parties and have considered them in making my Order. One of the affected parties agreed to disclose the Statement of Investment Policies and Goals of the pension plan which he administers, with all identifying names severed. The other two affected parties did not agree to disclosure. The sole issue is this appeal is whether the head properly applied the mandatory exemption provided by subsections 17(1)(a) and (c) of the Act in denying access to the requested records. The purposes of the Act as set out in section 1 should be noted at the outset. Subsection 1(a) provides the right of access to information under the custody or control of institutions in accordance with the principles that information should be available to the public and that necessary exemptions from the right of access should be limited and specific. Subsection 1(b) sets out the counterbalancing privacy protection purpose of the Act . The subsection provides that the Act should protect the privacy of individuals with respect to personal information about themselves held by institutions and should provide individuals with a right of access to their own personal information. It should also be noted that section 53 of the Act provides that the burden of proof that the record or part of the record falls within one of the specified exemptions of the Act lies upon the head. The affected parties still resisting disclosure in this appeal have relied on the exemption provided by section 17 of the Act to prohibit disclosure of the records pertaining to them, and therefore share with the institution the onus of proving that this exemption applies to the records at issue in this appeal. ISSUE A : Whether the head properly applied the mandatory exemption provided by subsections 17(1)(a) and (c) of the Act in denying access to the requested records. Subsections 17(1)(a) and (c) of the Act read as follows: 17.--(1) 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. In my Order 36 (Appeal Number 880030), dated December 28, 1988, I established the three-part test which must be satisfied in order for a record to be exempt under section 17. The test, as outlined on page 4 of the Order, is as follows: 1. the record m
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Legislation
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FIPPA
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17(1)(a), (b) & (c)
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17(1)
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Subject Index
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Signed by
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Sidney Linden
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Published
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Dec 04, 1989
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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