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ORDER BACKGROUND: The Ministry of Health (the institution) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to correspondence between the institution and five agencies for the calendar year 1990, together with any briefing notes, memoranda between department officials, records of telephone conversations, records of complaint and follow-up action pertaining to the five agencies. The institution was able to locate responsive records for only one of the five agencies (the agency). Because it was felt that these records might contain information that could affect the interests of the agency, the institution provided notice pursuant to section 28 of the Act , seeking representation from the agency as to why the records should not be disclosed. The agency did not respond to this notice, and the institution advised the requester that access to eight records would be provided in full, and that partial access would be granted to the remaining five records, subject to severances under sections 17(1)(a) and (c), and 21(1) of the Act . The agency was notified of the institution's decision, and appealed the decision to release the records (Appeal #P-910633). The original requester subsequently appealed the institution's decision to sever the records (Appeal #P-920187). The two appeals were joined for the purposes of this order. A copy of the records were received and reviewed by the Appeals Officer. They are described in Appendix "A" which is attached to this order. During the course of processing these appeals, the Appeals Officer made several unsuccessful attempts to contact the agency at a number of different locations, by telephone, facsimile and mail. All correspondence was returned unopened, and the phone numbers were no longer in service. Also as the appeal progressed, the original requester withdrew her request for the one page of Record A12 which was exempt by the institution under section 21(1) of the Act , thereby narrowing the issues to the proper application of section 17(1). Because the agency could not be contacted, mediation was not possible and the matters proceeded to inquiry. Notice that an inquiry was being conducted to review the decisions of the head was sent to the institution, the original requester, and the agency at its last known address. Enclosed with each Notice of Inquiry was a report prepared by the Appeals Officer, intended to assist the parties in making their representations concerning the subject matter of the appeals. Written representations were received from the institution and the original requester, and the correspondence sent to the agency was returned unopened. Following the receipt of representations, it was determined that the interests of 18 individuals and/or organizations identified in Records A9 and A11 might be affected by the release of these records. The original requester confirmed that she was not interested in receiving any personal information contained in these records, thereby reducing the number of potential affected persons to 12. Notices were sent to those potential affected persons who could be identified from the contents of the two records (seven of 12), seeking their representations regarding the application of section 17(1). Representations were received from five of these affected persons. ISSUES: The issues in this appeal are as follows: A. Whether any of Records A2, A8, A9 or A11 were properly exempt by the head under sections 17(1)(a) and/or (c) of the Act in Appeal P-920187. B. Whether any of the records qualify for exemption under section 17(1) of the Act in Appeal P-910633. SUBMISSIONS/CONCLUSIONS : ISSUE A: Whether any of Records A2, A8, A9 or A11 were properly exempt by the head under section 17(1)(a) and/or (c) of the Act in Appeal P-920187. Sections 17(1)(a) and (c) of the Act read as follows: 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 organizations; (c) result in undue loss or gain to any person, group, committee or financial institution or agency; In order to qualify for exemption under sections 17(1)(a) and/or (c), the institution and/or agency must satisfy the requirements of the following three-part test, first established by former Commissioner Sidney B. Linden in Order 36: 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 institution 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. Failure to satisfy the requirements of any part of this test will render the subsection 17(1) claim invalid. Records A2 and A8 Record A2 is a 5-page letter written by the agency to the Minster of Health, which outlines a proposal to participate in the restructuring of the manner in which OHIP funds are paid to addiction treatment facilities in the United States. Record A8 is a 6-line letter from the agency to the institution, attaching copies of 2-page letters sent by counsel for the agency to the Premier, Minister of Health and Mayor of the City of Toronto, which identify a proposal to construct a treatment hospital in Toronto. The institution claims that the information contained in these two records is "commercial information". As stated earlier, the agency could not be contacted and has provided no representations. In my view, Records A2 and A8 contain information which relates to business activities of the agency, and can properly be characterized as "pertaining or relating to or dealing with commerce" (Order 179), thereby sati
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