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Document
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P-48
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File #
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Appeal 880038
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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 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 to the Commissioner. The facts of this case and the procedures employed in making this Order are as follows: 1. By letter dated January 7, 1988, addressed to the Freedom of Information and Privacy Co-ordinator of the Ministry of Industry, Trade and Technology (the "institution"), a request was made for copies of "documents provided by the Ontario Development Corporation to the Provincial Auditor in connection with the Provincial Auditor's Report on Ventura Technologies Corporation, dated May 14, 1987" . This report is entitled "Report of the Review of Concerns Raised by Mr. Peter Whitehouse". The requester, through a numbered company, is the largest single shareholder of Ventura Technologies Corporation. 2. On March 7, 1988, the head sent a letter to the requester denying access to the records, citing sections 13, 14(1)(f), 17(1)(a)(b) and (c), 18(1), 19 and 21(1) of the Freedom of Information and Protection of Privacy Act, 1987 . 3. By letter dated March 14, 1988, the requester appealed the decision of the head. I sent a notice of the appeal to the institution and the appellant. 4. The records were obtained and examined by an Appeals Officer from my staff. Efforts were made by the Appeals Officer and the parties to settle the appeal. A settlement was not effected as both parties maintained their respective positions. 5. On May 2, 1988, I sent notice to the appellant and the institution, that I was conducting an inquiry to review the decision of the head. Enclosed with this letter was a report prepared by the Appeals Officer, intended to assist the parties in making their representations concerning the subject matter of the appeal. The Appeals Officer's Report outlines the facts of the appeal and sets out questions which paraphrase those sections of the Act which appear to the Appeals Officer, or any of the parties, to be relevant to the appeal. The Appeals Officer's Report indicates that the parties, in making representations to the Commissioner, need not limit themselves to the questions set out in the Report. The Report is sent to all persons affected by the subject matter of the appeal. 6. A number of affected persons were subsequently identified and given notice that I was conducting an inquiry. 7. All parties were advised of their right to make representations on the issues arising in the appeal. 8. Written representations were received from the appellant, the institution and some affected parties. It should be noted, at the outset, that the purposes of the Act as set out in subsections 1 (a) and (b) are: (a) to provide a right of access to information under the control of institutions in accordance with the principles that, (i) information should be available to the public, (ii) necessary exemptions from the right of access should be limited and specific, and, ... (b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information. Section 53 of the Act provides that the burden of proof that a record or part of a record falls within one of the specified exemptions in this Act lies upon the head. The issues arising in this appeal are as follows: A. Whether any parts of the records at issue are exempt from disclosure pursuant to subsection 14(1)(f) of the Act ; B. Whether any parts of the records at issue are exempt from disclosure pursuant to subsection 13(1) of the Act ; C. Whether any parts of the records at issue are exempt from disclosure pursuant to subsections 17(1)(a), (b) or (c) of the Act ; D. Whether any parts of the records at issue are exempt from disclosure pursuant to subsections 18(1)(a), (c) and/or (d) of the Act ; and E. Whether any parts of the records at issue are exempt from disclosure pursuant to section 21 of the Act . The representations received from the institution at the inquiry stage of the appeal make no reference to the application of section 19 to these records, and I have assumed that any claim for exemption under this section has been abandoned by the institution. Fourteen (14) separate records are at issue in this appeal, some of which the institution found to be exempt under more than one section of the Act . The institution made an alternative argument that the subsection 14(1)(f) exemption applies to all the records, and I will deal with this argument first. In the interest of clarity, I will then proceed to deal with the proper disposition of each record separately. ISSUE A : Whether any parts of the records at issue are exempt from disclosure pursuant to subsection 14(1)(f) of the Act . Subsection 14(1)(f) of the Act reads as follows: A head may refuse to disclose a record where the disclosure could reasonably be expected to, ... (f) deprive a person of the right to a fair trial or impartial adjudication; ... Two legal actions have been commenced which the institution submits are relevant to the subsection 14(1)(f) exemption claim: Ventura Technologies Corporation v. Ontario Development Corporation and Touche Ross Limited ; and A T & T Information Systems Inc. and A T & T Canada Inc . v. Al Humphreys and Disc Consultants Inc . In the first law suit, the Ontario Development Corporation (the "ODC") and its agent, Touche Ross Limited, are named defendants; in the second, the institution categorizes ODC and Touche Ross Limited as potential defendants. In its representations, the institution provides no specific evidence or argument as to why the release of the records at issue in this appeal would deprive it of the right to a "fair trial or impartial adjudication" in these two law suits. Nor is it obvious, from my examination of the record, that such a result could reasonably be expected. Rather, the institution makes the general assertion that "...it woul
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Legislation
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FIPPA
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10(2)
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13(2)
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13(2)(a)
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14(1)(f)
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17(1)(a), (b) & (c)
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18(1)(d)
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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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Sidney Linden
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Published
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Apr 06, 1989
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Type
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Order
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