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Document
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P-885
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File #
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P-9400665
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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 for a report distributed to a particular committee meeting on a given date, as well as other records relating to archaeological research produced by the Ministry out of its Temagami District office. The requester also sought a fee waiver on the basis that payment of fees would cause him financial hardship. The Ministry located the responsive records and provided the requester with access to the report distributed to the Comprehensive Planning Council Meeting at no charge. The Ministry granted partial access to other archaeological documents and issued a fee estimate in the amount of $180. The Ministry also made the decision not to waive the fees. The requester appealed the Ministry's decisions regarding access, the calculation of the fee and the fee waiver. The records which are at issue in this appeal consist of 14 Heritage Site Assessment documents, two pages of oral history notes and 11 other reports on archaeological research. The Ministry relies on the following exemptions to deny access to these records, either in whole or in part: facilitate commission of unlawful act - section 14(1)(l) third party information - section 17(1) valuable government information - section 18(1)(a) A Notice of Inquiry was provided to the appellant, the Ministry and the Indian band identified by the Ministry as having supplied the information contained in the Heritage Site Assessment reports and the oral history notes (the affected party). Representations were received from the appellant and the Ministry only. DISCUSSION : THIRD PARTY INFORMATION The Ministry claims that sections 17(1)(b) and/or (c) of the Act apply to exempt the Heritage Site Assessment reports and the oral history notes in their entirety. For a document to qualify for exemption under this provision, the Ministry and/or the affected party 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 renders the section 17(1) claim invalid. I will first consider the second part of the test. Part Two of the Test To satisfy part two of the test, the Ministry and/or the affected party must show that the information was supplied to the Ministry, and that it was supplied in confidence , either implicitly or explicitly. Several previous orders have determined that information contained in a record would reveal information "supplied" within the meaning of section 17(1) of the Act , if its disclosure would permit the drawing of accurate inferences with respect to the information actually supplied to the Ministry. The Ministry's representations on part two of the test only address the application of section 17(1) to the locations of the archaeological sites. The Ministry states that this information, as contained in the Heritage Site Assessment Reports and oral history notes, was supplied to the Ministry in confidence by the affected party. However, I have not been provided with any evidence to conclude that this was, in fact the case. I have carefully reviewed all of the records. I note that each Site Assessment Report contains a list of references citing multiple sources for the information contained in the document. However, it is not evident from either the references or the Ministry's representations that it was the affected party that supplied the specific information relating to the archaeological sites. There is no clear connection made between this information and the affected party as the supplier of the site locations. Similarly, the oral history notes do not particularize the origin of the facts contained in the two pages. Accordingly, I cannot conclude that all the information contained in the Heritage Site Assessment Reports and the oral history notes was supplied to the Ministry by the affected party for the purposes of section 17(1). As I have noted above, failure to satisfy the requirements of any part of the test will render the section 17(1) claim invalid. As the second part of the test has not been satisfied, I find that these records do not qualify for exemption under section 17(1) of the Act . FACILITATE COMMISSION OF UNLAWFUL ACT The Ministry relies on section 14(1)(l) to exempt the information relating to the exact location of archaeological sites contained in all of the records at issue. Section 14(1)(l) of the Act reads as follows: A head may refuse to disclose a record where the disclosure could reasonably be expected to, facilitate the commission of an unlawful act or hamper the control of crime. Previous orders have found that in order to qualify for exemption under this section, the Ministry must establish "a clear and direct linkage" between the disclosure of the specific information at issue and the harm mentioned in the exemption. As part of its representations, the Ministry has included an affidavit from the Manager of the Archaeology and Heritage Planning Unit, Cultural Programs Branch of the Ministry of Culture, Tourism and Recreation. The affidavit provides a comprehensive and detailed explanation of the institution's policies, priorities and programs for the conservation, protection and preservation of the heritage of Ontario pursuant to the Ontario Heritage Act . In particular, the affidavit discusses the growing market for archaeological artifacts and cites examples of how disclosure of the location of archaeological sites has resulted in such sites being looted. The removal of archaeological artifacts without a licence or the looting of archaeological sites is an offence under the Ontario Heritage Act . Accordingly, the M
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Legislation
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FIPPA
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14(1)(l)
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17(1)(b)
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17(1)(c)
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57(4)
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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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Mar 07, 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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