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Document
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P-385
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File #
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P-910041
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Institution/HIC
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Ministry of Natural Resources
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Summary
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ORDER On October 1, 1992, the undersigned was appointed Inquiry Officer and received a delegation of the power and duty to conduct inquiries and make orders under the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act. The Ministry of Natural Resources (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to records relating to a five year contract for the growing of tree seedlings between the Ministry and a named company (the affected person). The request included access to all copies of correspondence between the Ministry and the affected person, the tender submitted by the affected person, the number of additional seedling orders from the affected person between 1983 and 1991, and all grants received by the affected person between 1983 and 1990. Following notification of the affected person, the Ministry granted partial access, denying access to the remainder of the records pursuant to section 17(1)(a) of the Act . The appellant appealed the Ministry's decision. Mediation of the appeal was not successful and notice that an inquiry was being conducted to review the Ministry's decision was sent to the appellant, the Ministry and the affected person. Written representations were received from the Ministry and the affected person. During the processing of the appeal, the affected person agreed to the disclosure of additional records. These records were released to the appellant by the Ministry. The records remaining at issue in this appeal are listed and described in Appendix A to this order. The sole issue in this appeal is whether the mandatory exemption provided by section 17(1)(a) of the Act applies to the records. Section 17(1)(a) of the Act reads 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; In order to qualify for exemption under section 17(1)(a), the Ministry and/or affected person must satisfy the requirements of the following three-part test: 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 must give rise to a reasonable expectation that one of the types of injuries specified in subsection 17(1)(a) will occur. Failure to satisfy the requirements of any part of this test will render the section 17(1) claim invalid [Order 36]. PART ONE With respect to the first part of the test, I have reviewed the records and I am satisfied that the information contained in all of the records qualifies as "commercial" and/or "financial" information. The records contain the contractual agreements, negotiations and correspondence between the Ministry and the affected person relating to the growing of seedlings and the amounts of money involved in the transactions. PART TWO In order to meet the second part of the test, the information at issue must have been supplied to the Ministry in confidence, either implicitly or explicitly. This part of the test has dual requirements. The parties resisting disclosure must prove not only that the information was supplied to the Ministry, but also that it was supplied to it in confidence , either implicitly or explicitly. In its representations, the Ministry indicates that "the records in question constitute third party information as defined by section 17 of [the Act ]" and states that it "relies upon the representations and other evidence presented by the affected person". In a letter sent to the Appeals Officer clarifying the tendering process and responding to certain questions regarding Record 2 in Appendix A, the Ministry stated: The original tender was for five years with new prices being negotiated for years two through five. These were the result of confidential negotiations and should not be released. The legal agreements ... contain negotiated prices which may provide information about the company which is not part of the public record. It has been established that information which is the result of contractual negotiations between a governmental institution and an affected person, does not qualify as information which has been "supplied", regardless of whether this information may have been treated confidentially [Order 87]. In my opinion, any information that relates to prices and other stipulations contained in the various contracts and correspondence, was the result of negotiations between the Ministry and the affected person. Therefore, this information cannot be considered to have been supplied to the Ministry. It should be noted that I would have found that such information was supplied to the Ministry, had I been satisfied that its disclosure would permit the drawing of accurate inferences with respect to the information actually supplied to the Ministry. With respect to information which is not the result of negotiations, the affected person submits: ... the tendering process has always been considered confidential except when otherwise expressed. When one is requested to explain and defend costs in both operational expenses and capital expenses, it is natural to assume the information requested by the government would of necessity be confidential or bidders would not release information intimately connected with their practice of doing business. I find the affected person's representations to be general assertions of fact which do not provide sufficient evidence to enable me to conclude that the information contained in all of the records was supplied to the Ministry in confidence. Despite the dearth of representations, I am prepared to accept that, based on my own revie
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Legislation
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Subject Index
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Signed by
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Asfaw Seife
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Published
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Dec 18, 1992
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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