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Document
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P-70
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File #
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Appeal 880264
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Institution/HIC
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Ministry of Natural Resources
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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 under the Act to the Commissioner. The facts of this case and the procedures employed in making this Order are as follows: 1. On July 8, 1988, a request was made to the Ministry of Natural Resources (the "institution") for copies of "the contract between the Queen (Ministry of Natural Resources) and [a named individual] for creel census on Lake St. Clair" and "the contract between the Queen (Ministry of Natural Resources) and [a named individual] for creel census on Lake Erie (Pelee Island)". 2. By letter dated August 8, 1988, the institution responded to the requester that access to both contracts was denied, citing section 17 and subsection 18(1)(a) of the Act . 3. By letter dated August 19, 1988, the requester appealed the decision of the head. I sent notice of the appeal to the institution and the appellant. 4. The records were obtained and examined by an Appeals Officer. The appeal was unable to be resolved in mediation and both parties requested resolution by inquiry. 5. On February 7, 1989, I sent notice to the appellant, the institution and two affected persons, that I was conducting an inquiry to review the decision of the head. Enclosed with these letters were reports 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. Written representations were received from the appellant, the institution and one affected person and I have taken them into consideration in making this Order. To date, representations have not been received from the second affected person. It should be noted, at the outset, that one of the purposes of the Act as defined in subsection 1(a) is to provide a right of access to information under the control of institutions in accordance with the principles that necessary exemptions from the right of access should be limited and specific. Further, section 53 of the Act provides that the burden of proof that the record or part of the record falls within one of the specified exemptions in the Act lies with the head. In this case, the burden of proving the applicability of the section 17 exemption lies with both the head and the affected persons as they are the ones resisting disclosure. The issues arising in this appeal are as follows: A. Whether any part of the contracts fall within the section 17 mandatory exemption. B. Whether any part of the contracts fall within the subsection 18(1)(d) discretionary exemption. C. If either Issue A or Issue B is answered in the affirmative, whether there exists a compelling public interest in the disclosure of the records exempted under sections 17 or 18 that clearly outweighs the purpose of the exemptions, as provided by section 23 of the Act . D. If either Issue A or Issue B is answered in the affirmative, whether the severability requirements of subsection 10(2) apply to any of the records at issue. Before addressing the issues set out above, it is necessary to identify the records. At issue in this appeal are two executed standard form contracts, to which the institution has denied access in their entirety. At the same time, the institution acknowledges that "a draft, blank copy of the contract to be entered into was available publicly for a fee of ten dollars to anyone who asked, prior to the tender closing" and further, that "those portions of the contract document[s] that are considered to be disclosable have been and continue to be available to the public ". (emphasis added) For those very reasons, in my view, the standard form contracts themselves do not fall within the purview of the section 17 and 18 exemptions and there is no need for me to subject them to further scrutiny. What I intend to examine, pursuant to these exemptions, are the following pieces of information (information which, when inserted in the "blanks" of the standard form contract, resulted in the "executed" contracts): (1) date of contract. (2) name of contractor. (3) start and completion dates. (4) dollar figures (per scheduled sampling) or "unit price". (5) name and address of designated representative of the contractor. (6) name and address of designated representative of the Crown. (7) signatures of the parties and witnesses thereto. ISSUE A : Whether any part of the contracts fall within the section 17 mandatory exemption. Subsection 17(1) of the Act reads as follows: 17.--(1) 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; or (c) result in undue loss or gain to any person, group, committee or financial institution or agency. In order to fall within the section 17 exemption, the parts of the contracts in issue must meet all three parts of the following test: 1. The records must contain information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and 2. the information must have
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Legislation
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FIPPA
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17(1)(a), (b) & (c)
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18(1)(d)
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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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Jun 29, 1989
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Type
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Order
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