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Document
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P-841
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File #
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P-9400449
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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 Ministry of Natural Resources (the Ministry) received a request from the appellant for access to all information and activities pertaining to the lost circulation zone on Chatham Well #32 in Woodhouse Township. The appellant alleges that the water on her farm has been contaminated as a result of the drilling of a well by an engineering firm ( Firm A). Apparently, the appellant has filed a civil suit against Firm A for damages as a result of its actions while drilling the well. Firm A is a client of another company of environmental professionals (Firm B). The Ministry provided some records to the appellant. It denied access to the following three documents on the basis of the third party information exemption (section 17 of the Act ): Record 1: a letter dated March 22, 1990 from Firm A to the Ministry; Record 2: a letter dated March 23, 1990 from Firm B to the Ministry enclosing a memorandum to file; and Record 3: a letter dated May 27, 1992 from Firm B to the Ministry. The appellant appealed the denial of access to these three records. She subsequently asked the Ministry for all information related to the Ministry's activities in monitoring and regulating Chatham Well #32 from the time the drilling permit was issued until the date of the request. Specifically, she was interested in receiving copies of the log books or records of visits which would record the Ministry's monitoring of the well during this time period. The Ministry provided the appellant with total access to all the responsive information it had, but indicated that inspection and monitoring records did not exist. This decision was appealed on the basis that further records should exist. A Notice of Inquiry was sent to the Ministry, the appellant and Firms A and B. Representations were received from all parties. Because the subject matter of both appeals is similar, they were dealt with as one file. Accordingly, this order will dispose of the issues raised by the appeal of both decisions of the Ministry, i.e. denial of access and the reasonableness of the search. DISCUSSION: THIRD PARTY INFORMATION In its representations, the Ministry indicates that it is relying on the submissions of the engineering firms with respect to the application of section 17(1) of the Act to the three letters. Thus, in this case, for the records to qualify for exemption under section 17(1)(a), (b) or (c) the engineering firms 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 3. the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in (a), (b) or (c) of subsection 17(1) will occur. Failure to satisfy any part of the test will render the claim for exemption invalid. Part One of the Test I have reviewed the three letters and am satisfied that they contain scientific and/or technical information related to the drilling of the well, water sampling and ground water quality interference. Accordingly, part one of the test has been met. Part Two of the Test To satisfy part two of the test, the engineering firms must show that the information was supplied to the Ministry, and that it was supplied in confidence, either implicitly or explicitly. Both firms submit that the information was supplied to the Ministry implicitly in confidence. Records 2 and 3 are confirmations of telephone conversations between the authors of the letters and a representative of the Ministry. All of the technical and scientific information contained in these records was provided by the Ministry employee to the representative of Firm B, who then confirmed the substance of the conversation in this correspondence. The information was not supplied to the Ministry by Firm B . Therefore, part two of the section 17(1) test has not been met with respect to these documents and I will not consider them further. I am satisfied that the information contained in Record 1 was supplied to the Ministry. I am also satisfied that the individual who provided this information had a reasonable expectation that, in the words of Firm A, " information supplied in the letters would be strictly for the Ministry staff and their records". Thus, both elements of part two of the test have been satisfied with respect to Record 1. Part Three of the Test I will now consider the application of part three of the test (the "harms" element) to Record 1. Firm B claims that sections 17(1)(a), (b) and (c) are relevant considerations. However, it merely states, with respect to section 17(1)(c), that if the records are disclosed and weaken the case of Firm A in the civil action, then Firm A could suffer undue loss, which in turn could possibly adversely affect the business relationship between the two firms. Firm A maintains that disclosure of the records could result in the harms described in sections 17(1)(b) and (c). In order to meet the requirements of section 17(1)(b) of the Act , the firm 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. Firm A indicates that the records were unsolicited correspondence to the Ministry. It argues that the information contained in the records goes well beyond what is required by the Ministry in the forms which must be completed and filed with the government with respect to the work undertaken by the firm. These forms, prescribed under the Petroleum Resources Act , and in particular, Form 107, the "Drilling and Completion Record" have been disclosed to the appellant. The firm suggests that if t
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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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Jan 18, 1995
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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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