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Document
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P-179
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File #
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Appeal 890068
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Institution/HIC
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Ministry of Health
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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 Information 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) a right to appeal any decision of a head under the Act to the Commissioner. On August 3, 1989, the undersigned received a delegation of the power to conduct inquiries and make Orders under the Act to be exercised with respect to this Appeal. The facts of this case and the procedures employed in making this Order are as follows: 1. On January 25, 1989, the Ministry of Health (the "institution") received a request for access to "...information on the sales of Scooters, #'s WHSFS2001, 2002, 2003, 2010 and 2011 by Fortress Scientific located at 3750 Chesswood Dr., Downsview, Ontario, Canada." "Scooters", it should be noted, are three-wheeled vehicles designed for use by disabled persons. 2. Upon receipt of the request, the institution initiated a search involving the Assistive Devices Program of the institution (the "ADP"). The ADP program pays approximately 75% of the cost of these devices payable by the purchaser or end user of the product. On January 26, 1989, the institution retrieved from a machine readable databank the total number of scooter purchases, categorized by type of scooter, that had been approved during the period of November 15, 1987 to January 26, 1989 (the date of the search). The search continued up to January 31, 1989, at which time it was concluded that no other information existed. 3. On February 1, 1989, the institution issued notice to Fortress Scientific in accordance with section 28 of the Act . The notice contained a statement that the institution was considering the release of a record that might affect the interests of Fortress Scientific, a description of the contents of the record, and a statement that Fortress Scientific could, within twenty-one days of the notice, make representations to the institution as to why the record should not be disclosed. 4. On February 13, 1989, the institution received written representations from Fortress Scientific objecting to the release of the information regarding the sales of scooters by their company. 5. On February 17, 1989, the institution notified the original requester of the revised time frame for processing the request and informed him that disclosure was granted, but because "the information you have been granted access to affects a third party, the Act requires we wait 30 days before disclosing the record, to give the third party an opportunity to appeal this decision". The institution further advised that if an appeal were not filed, the record could be disclosed on March 19, 1989. 6. By letter to the Commissioner dated March 17, 1989, Fortress Scientific appealed the head's decision. On March 29, 1989, notice of the appeal was given to the institution and the requester. 7. The record identified by the institution was obtained and reviewed. After some investigation, it became clear that the record identified by the institution did not contain information on actual "sales of scooters" as requested by the requester, but was in fact a record of approvals for sales by the ADP. While sales usually follow approval, they need not. Thus, the information does not provide definite information concerning government-assisted sales in Ontario. Nor, of course, does it provide information concerning all sales of devices manufactured by the appellant. Total sales figures would include sales which have not been assisted by the institution. Further, it is apparent that the statistic generated by the institution is a compilation of information which is not supplied by manufacturers of the equipment but rather is supplied by either the dealers who sell to the end user of the device or by the end users themselves. That is to say, the information at issue in this appeal is a compilation of data relating to approvals granted by the institution, through its ADP program to requests for financial assistance in the purchase of particular scooters. 8. All parties to the appeal (the institution, the original requester, and the appellant) were contacted by the Appeals Officer, and they agreed to continue with the appeal concerning the records of approval, the nature of which was explained by the Appeals Officer. 9. By letters dated August 3, 1989, notice was sent to the appellant, the institution, and the original requester indicating an inquiry into this matter was being undertaken. Enclosed with these letters was a report prepared by the Appeals Officer, intended to assist the parties in making their representations concerning the subject matter of the appeal. This report outlines the facts of the appeal and sets out questions which appear to the Appeals Officer or any of the parties, to be relevant to that appeal. The Appeals Officer's Report indicates that the parties, in making representations, need not limit themselves to the questions set out in the Report. It also indicates that if a relevant new issue is raised during the inquiry, each party will be advised and given the opportunity to make further submissions. 10. I received representations from all parties and have considered them in making my Order. The record consists of a one-page computer printout which indicates the scooter model number and the total number of approvals for each model. It should be noted at the outset that the purpose of the Act as defined in subsection 1(a) is "to provide a right of access to information under the control of institutions in accordance with the principles that information should be available to the public, that necessary exemptions from the rights of access should be limited and specific". Further, section 53 of the Act provides that the burden of proof that the record or a part of a record falls within one of the specified exemptions in the Act lies upon the head. However, where a third party (Fortress Scientific in this case) appeals a decision of the head to give access to the record, the burden of proof lies upon the third party appellant resisting disclosure. The sole issue arising in this appeal is whether the record in issue is subject to mandatory exemption from release pursuant to section 17 of the Act . As I have noted above, the burden of proving that this record falls within the section 17(1) exemption lies with the party resis
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Legislation
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FIPPA
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17(1)(a), (b) & (c)
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Section 53
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17(1)
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Subject Index
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Signed by
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John McCamus
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Published
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Jun 20, 1990
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Type
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Order
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