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Document
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P-1175
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File #
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P-9600026
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Institution/HIC
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Ministry of Labour
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Summary
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NATURE OF THE APPEAL: The appellant is a professional engineer with training in metallurgical engineering. He was formerly employed by an oil company (the corporation). In 1988, he resigned from his employment with the corporation. He states that, among other reasons, he resigned because of safety concerns about potential metal stress in a particular piece of machinery at a refinery operated by the corporation. For ease of reference I will refer to this piece of machinery as "the machinery". After his resignation, the appellant contacted two organizations about his safety concerns arising from the way in which the corporation was operating the machinery. One organization the appellant contacted was the Ministry of Labour (the Ministry), in connection with its mandate under the Occupational Health and Safety Act (the OHSA ). He also contacted the Association of Professional Engineers of Ontario. Both organizations looked into the appellant's concerns. In particular, the Ministry conducted an investigation under the OHSA , and issued a report on the results of this investigation in June 1995. Soon afterwards, under the Freedom of Information and Protection of Privacy Act (the Act ), the appellant made an access request to the Ministry for a copy of this report. The Ministry notified the corporation of the request pursuant to section 28 of the Act . The corporation advised the Ministry that it objects to disclosure, and the Ministry denied access to parts of the report under the exemption in section 17(1) of the Act (third party information). The appellant filed an appeal of this denial of access. This office sent a Notice of Inquiry to the Ministry, the appellant and the corporation. Before the due date for representations specified in the initial Notice of Inquiry, a revised Notice of Inquiry was sent to the same parties. In addition to inviting representations on section 17(1), the revised Notice of Inquiry invited the parties to comment on the possible application of the so-called "public interest override" in section 23 of the Act , and on the possible application of section 11 of the Act . The latter section mandates disclosure by the "head" of an institution where such disclosure is in the public interest and the record reveals a grave environmental, health or safety hazard to the public. In response to the Notices, all three parties submitted representations. DISCUSSION: SECTION 11 OF THE ACT Section 11(1) of the Act states: Despite any other provision of this Act, a head shall, as soon as practicable, disclose any record to the public or persons affected if the head has reasonable and probable grounds to believe that it is in the public interest to do so and that the record reveals a grave environmental, health or safety hazard to the public. In Order 187, then Assistant Commissioner Tom Wright considered whether the Commissioner (or his delegates) have the authority to make an order under section 11 of the Act . He stated: Section 11 is a mandatory provision which requires the head to disclose records in certain circumstances. Commissioner Sidney B. Linden in Order 65 ... found that the duties and responsibilities set out in section 11 of the Act belong to the head alone. I concur with Commissioner Linden's interpretation of section 11 and adopt it in this appeal. As a result it is my view that the Information and Privacy Commissioner or his delegate do not have the power to make an Order pursuant to section 11 of the Act . I agree with this interpretation. Accordingly, it is not possible for me to make an order with respect to the application of section 11. THIRD PARTY INFORMATION Section 17(1) of the Act states, in part, 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. I will analyse whether the undisclosed information is exempt under section 17 under three subject headings, namely "Type of Information", "Supplied in Confidence" and "Harms". Type of Information In order to qualify for exemption under section 17(1), the information at issue must be "a trade secret or scientific, technical, commercial, financial or labour relations information". The undisclosed parts of the report consist of information about the machinery. This information consists of technical descriptions of the machinery, observations about its operations and information about several incidents involving it. In Order P-454, former Assistant Commissioner Irwin Glasberg discussed the meaning of "technical" information, as follows: [i]n my view, technical information is information belonging to an organized field of knowledge which would fall under the general categories of applied sciences or mechanical arts. Examples of these fields would include architecture, engineering or electronics. While, admittedly, it is difficult to define technical information in a precise fashion, it will usually involve information prepared by a professional in the field and describe the construction, operation or maintenance of a structure, process, equipment or thing. I agree with this interpretation. The author of the report is a professional engineer and, in my view, the undisclosed information describes the construction and operation of equipment. I find that all of it qualifies as "technical" information. Supplied in Confidence Section 17 requires that the information at issue was "supplied in confidence implicitly or explicitly." I will discuss this requirement in two parts: (1) was the information "supplied", and (2) if so, was it supplied "in co
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Legislation
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FIPPA
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11(1)
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17(1)(a), (b) & (c)
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67(2)
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Section 23
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Subject Index
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Signed by
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John Higgins
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Published
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May 07, 1996
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Type
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Order
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