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Document
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P-493
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File #
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P-9200768
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Institution/HIC
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Ministry of Municipal Affairs
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Summary
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ORDER BACKGROUND: The Office of the Greater Toronto Area (the OGTA) (now the Ministry of Municipal Affairs), (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to all information relating to the proposed projects known as Transportation Place and Ontario International Landport. The OGTA located the responsive records and forwarded the request and the records to the Ministry to administer the request. The Ministry denied the requester access to six records in full and thirteen records in part pursuant to sections 13 and 17 of the Act . The requester appealed the decision. Subsequently, the requester appealed the decision of another provincial ministry in which many of the same records are at issue. During mediation of this appeal, the appellant agreed that only those records that were not common to both appeals would be addressed in this order. These records are numbered as Records 7, 8, 9, 10, 11, and 22 according to the Ministry's index. Further mediation was not possible, and notice that an inquiry was being conducted to review the Ministry's decision was sent to the appellant, the Ministry, and a party whose interests may be affected by the disclosure of the information at issue in this appeal (the affected party). Written representations were received from the Ministry only. In its representations, the Ministry stated that it would now release Records 8 and 11 in their entirety, and make further disclosure of parts of Records 7, 9, and 10. The Ministry has advised this office that these records and parts of records have been disclosed to the appellant. The remaining records at issue in this appeal, together with the exemptions claimed, can be described as follows: 7. Memo dated August 29, 1989 - access denied in part pursuant to sections 13 and 17 of the Act . 9. Memo dated January 25, 1991 - access denied in part pursuant to section 13 of the Act . 10. Memo dated January 29, 1991 - access denied in part pursuant to section 13 of the Act . 22. Draft memo dated January 21, 1992 - access denied in total pursuant to section 13 of the Act . ISSUES: The issues arising in this appeal are: A. Whether the discretionary exemption provided by section 13(1) of the Act applies. B. Whether the mandatory exemption provided by section 17 of the Act applies to Record 7. SUBMISSIONS/CONCLUSIONS ISSUE A: Whether the discretionary exemption provided by section 13(1) of the Act applies. Section 13(1) of the Act reads: A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution. Advice for the purposes of this section must contain more than mere information. Generally speaking, "advice" pertains to the submission of a suggested course of action, which will ultimately be accepted or rejected by its recipient in the deliberative process (Orders 118, P-304 and P-348). "Recommendations" should be viewed in the same vein (Orders 161, P-248 and P-348). Records 7, 9, and 10 In my opinion, the information in paragraph 1 on page 3 of Record 7, and the first sentence of of Record 10 after the name, "Brampton" do not contain advice or recommendations for the purposes of section 13(1) of the Act . In my view, this information is a comment on the merits of the proposed project; it does not recommend a specific course of action. The information in paragraph 1 on page 2 of Record 9 does not contain advice or recommendations as contemplated by section 13. This information outlines some administrative requirements for the project and does not recommend a specific course of action. I find that the information in paragraph 2 on page 2 of Record 9, and in the first sentence of paragraph 2 of Record 10 does recommend a specific course of action and therefore, qualifies for exemption under section 13(1) of the Act . Record 22 I have carefully reviewed this record, which consists of a draft memorandum and three attachments. I find that only the information in the last paragraph of the draft memorandum, and the second and third attachments qualify as advice or recommendations detailing a specific course of action for the purposes of section 13(1). In my view, the remaining portions of the draft memorandum and the first attachment are limited to comments about the merits of the proposed project and the alternatives available should the government decide to support the proposal. It is my opinion that these portions of the record constitute opinion or factual material and do not suggest a recommended course of action. Accordingly, these portions of Record 22 are not covered by the section 13(1) exemption. As section 13 is a discretionary exemption, it is my responsibility to ensure that the head of an institution has properly exercised his or her discretion when deciding not to disclose a record. In the circumstances of this appeal, I have found nothing to indicate that the exercise of discretion to refuse access to those portions of the records which I have found exempt under section 13(1) of the Act was improper. ISSUE B: Whether the mandatory exemption provided by section 17 of the Act applies to Record 7. 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 to qualify for exemption under sections 17(1)(a), (b) or (c)
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Legislation
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Subject Index
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Signed by
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Anita Fineberg
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Published
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Jul 09, 1993
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Type
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Order
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