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Document
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P-798
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File #
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P-9400377
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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:
This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act). The
requester asked the Ministry of Natural Resources (the Ministry) for access to records relating to a
named corporation's applications to divert a creek pursuant to the Lakes and Rivers Improvement
Act and a license issued to the corporation under the Aggregate Resources Act. The Ministry
determined that the interests of the corporation would be affected by disclosure of the information,
notified the corporation of the request pursuant to section 28 of the Act and requested
representations from it with respect to disclosure of the records.
The corporation objected to the disclosure of some of the records.
The Ministry granted partial access to the records. The Ministry denied access to certain records,
either in whole or in part, based on specific exemptions contained in the Act, including:
• third party information - section 17(1)
The requester appealed this decision to the Commissioner's office.
As a result of mediation, this appeal is restricted to two of the five records which were originally at
issue, both of which were withheld pursuant to section 17 of the Act.
A Notice of Inquiry was provided to the Ministry, the appellant and the corporation.
Representations were received from the corporation and the Ministry. The Ministry indicated that it
supported the corporation's representations.
The two records which remain at issue in this appeal are reports prepared for the corporation by
consulting groups. One record describes the fisheries and fish habitat of the area which will be
affected by the corporation's quarrying activities. The other is a predesign report which details a fish
habitat mitigation plan, outlining the preliminary stream naturalization and wetland enhancement
necessary to replace fish habitat which will be altered due to the quarrying activities.
DISCUSSION:
THIRD PARTY INFORMATION
The Ministry and the corporation claim that sections 17(1)(a), (b) and (c) of the Act apply to each of
the two records at issue. For a record to qualify for exemption under these provisions, the Ministry
and/or the corporation must satisfy each part 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
- 2 -
[IPC Order P-798/November 16, 1994]
3. the prospect of disclosure of the record must give rise to a reasonable
expectation that one of the harms specified in sections 17(1)(a), (b) or (c) will
occur.
Parts One and Two of the Test
Having carefully reviewed the records, I find that they contain scientific and/or technical
information for the purposes of part one of the section 17(1) test.
To satisfy part two of the test, the Ministry and/or the corporation must establish that the information
contained in the records was supplied to the Ministry and secondly that such information was
supplied in confidence either implicitly or explicitly.
Based on my review of the records and the evidence before me, I find that the information contained
in each of the records was supplied to the Ministry by the corporation with an explicit expectation of
confidentiality. On this basis the second part of the section 17(1) test has been satisfied.
Part Three of the Test
To satisfy this part of the test, the Ministry and/or the corporation must describe a set of facts or
circumstances which would lead to a reasonable expectation that one of the harms described in
section 17(1) will occur if the information contained in the records is disclosed. The evidence which
is presented to establish this connection must be clear and convincing.
With respect to section 17(1)(a), the corporation submits that disclosure of the records would
interfere significantly with ongoing negotiations involving various parties who are attempting to
address the issues surrounding the application and license. However, the corporation does not detail
how or why disclosure of the records could reasonably be expected to interfere with these
negotiations. Accordingly, I find that section 17(1)(a) does not apply to exempt the records from
disclosure.
The corporation next submits that the information contained in the records is exempt from disclosure
under section 17(1)(b) of the Act. In order to meet the requirements of this provision, the
corporation must demonstrate, through the provision of detailed and convincing evidence, that:
(1) the disclosure of the information in the records could reasonably be expected
to result in similar information no longer being supplied to the institution;
and
(2) it is in the public interest that similar information continue to be supplied to
the institution in this fashion.
[Order P-604]
- 3 -
[IPC Order P-798/November 16, 1994]
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Legislation
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Subject Index
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Signed by
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Holly Big Canoe
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Published
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Nov 16, 1994
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Type
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Order
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Judicial Review
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Affected party's application abandoned October 23, 1995
St. Marys Cement Co. v. Ontario (Information and Privacy Commissioner), Toronto Doc. 836/94 (Div. Ct.)
Divisional Court Decision - Motion to Strike
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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