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Document
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P-444
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File #
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P-9200435
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Institution/HIC
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Ministry of Health
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Summary
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ORDER BACKGROUND: The Ministry of Health (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to: 1. A list of all Nursing Homes which are structurally non-compliant . 2. Permission to view the original reports on how these homes are non-compliant. The Ministry denied access to the records pursuant to sections 18(1)(c) and (d) of the Act . The requester appealed the Ministry's decision. The records are described as follows: 1. a list of those nursing homes which were structurally non-compliant with Regulation 690 promulgated under the Nursing Homes Act in May, 1988. 2. a "report" for each nursing home listed in Record 1, prepared by Ministry staff, which describes how these homes are structurally deficient. Mediation of the appeal was not successful and notice that an inquiry was being conducted to review the decision was sent to the appellant, the Ministry and the 192 nursing homes (the affected parties) who were named on the list originally provided by the Ministry. This list was updated and reduced to 146 nursing homes in December, 1992, and the updated list and the reports associated with these 146 nursing homes represent the records at issue in this appeal. Written representations were received from the Ministry and 39 of the affected parties. Several of the affected parties notified raised the possible application of section 17 of the Act to the records at issue. Additional representations were solicited from the Ministry, the appellant and all of the affected parties on the issue of the applicability of section 17 of the Act to the records. Representations on this issue were made by the Ministry, the appellant and 20 of the affected parties. PRELIMINARY MATTER: In the representations received from several of the affected parties, reference was made to a perceived invasion of the personal privacy of these individuals. The privacy rights provided by section 21 of the Act protect personal information of individuals. In my view, the records do not contain personal information as defined in the Act , and I find that section 21 of the Act does not apply. ISSUES: A. Whether the mandatory exemption provided by section 17(1) of the Act applies. B. Whether the discretionary exemptions provided by sections 18(1)(c) and/or (d) of the Act apply. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the mandatory exemption provided by section 17(1) of the Act applies. Several of the affected parties submit that sections 17(1)(a), (b) and (c) of the Act apply to the records. These sections state: 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; (b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied; (c) result in undue loss or gain to any person, group, committee or financial institution or agency; For a record to qualify for exemption under section 17(1)(a), (b) or (c) the affected party 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 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 section 17(1) will occur. [Order 36] Part 1 In my view, it is not accurate to characterize the names and addresses contained in Record 1 as a trade secret or scientific, technical, commercial, financial or labour relations information within the meaning of those terms in section 17(1) of the Act . Two affected parties submit that Record 2 contains information which may be characterized as "technical" information as it concerns the building specifications for individual nursing homes. I agree that the information contained therein, having to do with specific deficiencies in the structure of the nursing homes, may be characterized as being "technical" in nature. Accordingly, I find that the first part of the section 17 test has been met only for Record 2. Part 2 In order to meet the requirements of the second part of the section 17 test, the party claiming the applicability of the exemption must demonstrate that the information contained in the record was "supplied in confidence, either implicitly or explicitly". Other than assertions that the information was confidential, I have received no representations from any of the affected parties responsive to this part of the test. The Ministry submits that section 17(1) cannot apply to either of the records as the "information was not supplied by the third parties. The information was collected by the Ministry of Health through inspections carried out under the Nursing Homes Act ." In my view, the affected parties have failed to establish that the information was supplied to the Ministry. Accordingly, I find that the second part of the section 17(1) test has not been met, and the exemption provided by this section is, therefore, not applicable to the records. ISSUE B: Whether the discretionary exemptions provided by sections 18(1)(c) and/or (d) of the Act apply. Sections 18(1)(c) and (d) state: 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 dis
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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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17(1)
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Subject Index
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Signed by
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Holly Big Canoe
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Published
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Apr 02, 1993
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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