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Document
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P-1497
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File #
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P_9600463
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Institution/HIC
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Ministry of Health
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Summary
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NATURE OF THE APPEAL: The Ministry of Health (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ). The requester, a pharmaceutical company, sought access to information pertaining to the following subjects: internal and external Ministry correspondence relating to the purchase of the drug AZT legal opinions/decisions on the purchase of AZT the purchase contract for AZT entered into between the Ministry and a named company (the affected party) all Ministry documentation relating to the purchase of AZT The requester agreed to limit the scope of his request to those records pertaining to the purchase contract and any extensions to it from 1993 to the date of the request. The Ministry conducted searches for responsive records in its Legal Services Branch, Drug Programs Branch, AIDS Bureau and the Supply and Services Branch. A large number of responsive records were identified. The Ministry determined that the interests of two third parties (the affected party and a hospital) could be affected by the disclosure of the information contained in the records. Pursuant to section 28 of the Act , the Ministry notified the third parties, seeking their views on the disclosure of those records in which these parties appeared to have an interest. Following receipt of the third parties' submissions, the Ministry decided to disclose some of the records, in whole or in part. The Ministry denied access to the majority of the records, claiming the application of the following exemptions to them: advice or recommendations - section 13(1) third party information - section 17(1) economic and other interests - sections 18(1)(c), (d) and (f) proposed plans of an institution - section 18(1)(g) solicitor-client privilege - section 19 invasion of privacy - section 21(1) information published or available - section 22(a) The Ministry also advised the requester that some of the information contained in the records fell outside the scope of the request. The requester, now the appellant, appealed the Ministry's decision to deny access to the records. During the mediation of the appeal, the appellant agreed that he was no longer seeking access to the information for which the Ministry had claimed sections 21(1) and 22(a). I will not address the possible application of these exemptions to the records further. This office provided a Notice of Inquiry to the appellant, the Ministry and to the two affected parties. Representations were received from all of the parties. The hospital advised that it does not object to the disclosure of any information relating to it which may be contained in the records. THE RECORDS There are approximately 130 sets of records, in whole or in part, remaining at issue in this appeal. The Ministry has categorized them as Record Groups A to D. For the sake of clarity, I will continue to refer to them in the same fashion. Group A consists of 11 sets of records from the Legal Services Branch of the Ministry and include the requested contract, handwritten notes, correspondence (in final and draft form) and internal memoranda (also in final and draft form). Group B consists of 100 records, also originating from the Ministry's Legal Services Branch. These documents include the requested extension agreement and various draft versions of it, along with notes, memoranda and correspondence. Groups C and D consist of 19 records from the Ministry's Drug Programs Branch and AIDS Bureau program areas. These records are comprised of a number of briefing notes, internal memoranda and correspondence (in final and draft form). THE TESTS The Commissioner's office has developed a number of tests to assist in the application of certain exemptions in the Act to various types of records and information. The Ministry has submitted that the records are exempt from disclosure under sections 13(1), 17(1), 18(1)(c) and 19. The affected party also maintains that some of the records are exempt under section 17(1). The following tests have been articulated in previous orders with respect to some of these exemptions. Where no test has been expressed in previous orders for an exemption, I have set out the exemption itself as it appears in the Act . Section 13(1) To qualify as "advice" or "recommendations", the information contained in the records must relate to a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process [Order 118]. Section 17(1) For a record to qualify for exemption under sections 17(1)(a), (b) or (c) the Ministry and/or the affected party who is resisting disclosure must satisfy each part of the following three-part test: 1. the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and 2. the information must have been supplied to the Ministry in confidence, either implicitly or explicitly; and 3. 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. [Order 36] Sections 18(1)(c) and (d) These provisions state that: A head may refuse to disclose a record that contains, (c) information where the disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution; (d) information where the disclosure could reasonably be expected to be injurious to the financial interests of the Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario; Section 18(1)(f) In order to qualify for exemption under section 18(1)(f) of the Act , the Ministry must establish that a record satisfies each element of a three-part test: 1. the record must contain a plan or plans, and 2. the plan or plans must relate to: (i) the management of personnel or (ii) the administration of an institution, and 3. the plan or plans must not yet have been put into operation or made public. [Order P-229] Section 18(1)(g) In order to qualify for exemption under section 18(1)(g) of the Act , the Ministry must establish that a record: 1. contains information including proposed plans, policies or projects; and 2. that disclosure of the information could reasonably be expected to result in: (i) premature disclosure of a pending policy decision, or (ii) undue financial benefit or loss to a person. Each element of this two-part test must be satisfied. [Order P-229] Section 19 This section consists of two branches, which provide a head with the discretion to refuse to disclose: 1. a record that is subject to the common law solicitor-client privilege; (Branch 1) and 2. a record which was prepared by or for Crown counsel for use in givin
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Legislation
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FIPPA
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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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Section 19
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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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Dec 05, 1997
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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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