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Document
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P-286
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File #
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Appeal 900391
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Institution/HIC
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Ministry of Industry, Trade and Technology
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Summary
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O R D E R BACKGROUND: On June 18, 1990, the Ministry of Industry, Trade and Technology (the "institution") received a request for access to information pertaining to discussions between the institution and a company involved in the truck and trailer industry. The requester sought access to studies, letters and other materials dated after January 1, 1990, about one of the company's plants which had closed. Following receipt of representations from the company (the "affected party"), the institution granted partial access to the records, with severances pursuant to sections 12, 13 and 17 of the Freedom of Information and Protection of Privacy Act (the " Act "). The requester appealed the institution's decision. The Ontario truck and trailer industry was experiencing commercial and financial difficulty in 1989 and 1990. The affected party was one of the member companies of the delegation from the truck and trailer industry that attended meetings with provincial government representatives, made representations and presentations, provided documentary material, and made requests for support and financial assistance. During the course of mediation, the affected party and the institution agreed to disclose additional information to the appellant, and the appellant agreed to limit his appeal to those records where section 17 was the only exemption being relied on by the institution. The appellant maintains that there is a compelling public interest in disclosure of the records. As further mediation was not possible, the matter proceeded to an inquiry. Notice that an inquiry was being conducted to review the decision of the head was sent to the appellant, the institution and the affected party. Enclosed with each notice was a report prepared by an Appeals Officer, which is intended to assist the parties in making their representations concerning the subject matter of the appeal. Written representations were received from the institution, the affected party and the appellant. The records which remain at issue in this appeal are: 1. Briefing note dated January 18, 1990, on Truck Trailer Industry. 2. Letter dated January 25, 1990, from the affected party to the institution. 3. Letter dated January 29, 1990, from the affected party to the institution. 4. Submission dated February 1, 1990, from the affected party to the institution. 5. Submission dated May 31, 1990, from the affected party to the institution. Two of the severances made to Record 1 contain information about another company, and are, in my view, not responsive to this request. These severances are outside the scope of this appeal and will not be considered in this Order. ISSUES: The issues arising in this appeal are: A. Whether the mandatory exemption provided by section 17 of the Act applies to the severances at issue. B. If the answer to Issue A is yes, whether there is a compelling public interest in the disclosure of any of the severances which clearly outweighs the purpose of the exemption. SUBMISSIONS/CONCLUSIONS : ISSUE A : Whether the mandatory exemption provided by section 17 of the Act applies to the severances at issue. Sections 17(1)(a), (b) 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 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; In Order 36, former Commissioner Sidney B. Linden established a three-part test, each part of which must be satisfied in order for a record to be exempt under sections 17(1)(a), (b) or (c). Subsequent to the issuance of Order 36, section 17(1) was amended to include a new section 17(1)(d). This new section is not covered by the test established in Order 36, and is also not relevant in the circumstances of this appeal. The test for exemption under sections 17(1)(a), (b) or (c) is as follows: 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 types of harm specified in (a), (b) or (c) of subsection 17(1) will occur. Part One The institution and the affected party both submit that the material provided to the institution to show the state of the industry in general and to support requests for financial assistance included facts, figures, commercial data, financial information and labour statistics. Having reviewed the records, I am of the view that they all contain commercial, financial and/or labour relations information, and that the first part of the section 17(1) test is satisfied. Part Two Records 2, 3, 4, and 5 are letters and/or submissions which contain information supplied by the affected party to the institution. The information severed from Record 1 would, in my view, reveal information supplied by the affected party to the institution in Records 2, 3, 4 and 5. In its representations, the affected party clearly outlines an expectation of confidentiality with respect to specific details contained in the severed portions of Records 2, 3, 4 and 5. As well, the institution submits that it generally regards all commercial, financial or labour relations information received from businesses or companies seeking financial assistance from the institution to be confidential. The appellant disputes the intention to preserve confidentiality because the discussions between the provincial government and the company w
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Legislation
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FIPPA
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17(1)(a)
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17(1)(a), (b) & (c)
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17(1)(b)
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17(1)(c)
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Section 23
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17(1)
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Apr 08, 1992
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Type
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Order
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