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Document
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PO-1818
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File #
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PA-990459-1
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Institution/HIC
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Ministry of Natural Resources
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Summary
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NATURE OF THE APPEAL: Management Board of Cabinet (MBC) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to: . . . copies of all proposals submitted in response to Proposal P-Pet-99-008 undertaken by the Management Board for the evaluation of the current business processes associated with customer service to the public and for copies of all evaluation documentation in connection with such proposals. Pursuant to section 25 of the Act , MBC transferred the request to the Ministry of Natural Resources (the Ministry) as it appeared that the Ministry had a greater interest in the responsive records. The Ministry notified the firms which submitted proposals (the affected parties) in accordance with section 28 of the Act . Ten of the companies who submitted proposals responded to this notification. Three of them consented to the partial disclosure of their proposal to the appellant while the others objected to the release of any part of it. The Ministry decided to deny access to the responsive records, in their entirety, claiming the application of the exemptions contained in sections 17(1)(a) and (c) of the Act . The Ministry applied the exemptions to both the proposals themselves and to the evaluation materials generated by the Ministry. The appellant appealed the Ministry's decision to deny access to the records. During the mediation stage of the appeal, the appellant advised the Mediator that he was not seeking access to any personal information which may be contained in the records in the form of resumes or other background information relating to any identifiable individuals. The appellant indicated, however, that he continues to seek access to the current position titles held by these individuals. In addition, the Ministry disclosed to the appellant certain information contained in the proposals submitted by the three affected parties whose consent to such disclosure had been granted. This office sent a Notice of Inquiry first to the Ministry and to the 15 affected parties, seeking their submissions on the application of the exemptions in sections 17(1)(a) and (c) to the records. Representations were received from the Ministry and 11 of the affected parties. The non-confidential portions of these representations and an amended Notice of Inquiry were then provided to the appellant, who also made submissions with respect to the issues raised in the appeal. In their representations, a number of the affected parties have indicated that they have no objection to the disclosure to the appellant of much of the information contained in their proposals. I will not list in this order those portions of the records for which such consent to disclosure has been granted. Rather, I will provide the Ministry with a highlighted copy of the records indicating only those portions of them which are not to be disclosed. The remaining portions of the records which are not highlighted should be disclosed to the appellant in accordance with the order provisions set forth below. RECORDS AT ISSUE: There are 1091 pages of records identified as responsive by the Ministry. The records consist of the proposals made by the 15 affected parties and other records generated by the Ministry in the course of its evaluation of each of the proposals. For each proposal, there are three one-page evaluation forms. For three of the proposals, there are four four-page interview scoring documents. For one of the proposals, there are two four-page interview scoring documents, and for another there is a four-page assessment of proposal. There is also a three-page letter written by the Ministry to one of the affected parties responding to a request for feedback regarding its proposal. Additionally, there is a six-page record which evaluates the bid of each affected party to determine the top candidates, a one-page record which compares the costs of the bids (two copies), a one-page e-mail message (two copies) with an attached one-page draft scoring sheet, a one-page e-mail message regarding times for interviews, and a one-page e-mail with attached draft questions for the interviews. DISCUSSION: THIRD PARTY INFORMATION General Principles For a record to qualify for exemption under sections 17(1)(a) or (c), the Ministry and/or the affected parties must satisfy each part of the following three-part test: the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and the information must have been supplied to the Ministry in confidence, either implicitly or explicitly; and the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in (a) or (c) of section 17(1) will occur. [Orders 36, M-29 and M-37] The Ontario Court of Appeal recently overturned the Divisional Court's decision quashing Order P-373 and restored Order P-373. In that decision the Court stated as follows: With respect to Part 1 of the test for exemption, the Commissioner adopted a meaning of the terms which is consistent with his previous orders, previous court decisions and dictionary meaning. His interpretation cannot be said to be unreasonable. With respect to Part 2, the records themselves do not reveal any information supplied by the employers on the various forms provided to the WCB. The records had been generated by the WCB based on data supplied by the employers. The Commissioner acted reasonably and in accordance with the language of the statute in determining that disclosure of the records would not reveal information supplied in confidence to the WCB by the employers. Lastly, as to Part 3, the use of the words "detailed and convincing" do not modify the interpretation of the exemption or change the standard of proof. These words simply describe the quality and cogency of the evidence required to satisfy the onus of establishing reasonable expectation of harm. Similar expressions have been used by the Supreme Court of Canada to descr
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Legislation
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Subject Index
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Signed by
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Donald Hale
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Published
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Sep 22, 2000
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Type
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Order
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© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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