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Document
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PO-2032
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File #
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PA-020021-1
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Institution/HIC
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Ministry of Northern Development and Mines
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Summary
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NATURE OF THE APPEAL: The Ministry of Northern Development and Mines (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) to view "all minutes of the Northern Ontario Heritage Fund Corporation Board of Directors meetings, from June 26, 1995 until and including July 18, 200l." The Ministry initially gave the requester a fee estimate of $113.00 to process the request, and he paid a deposit of $56.50. The Ministry then issued a final decision identifying 50 records responsive to the request. The Ministry granted full access to 44 records and partial access to 6 records. In refusing access to portions of the six records, the Ministry relied on the exemptions in sections 13(1) (advice to government - one record) and 18(1)(g) (economic or other interests - five records). The Ministry also advised the requester that two sets of minutes would be reviewed for release once approved by the Board of Directors of the Northern Ontario Heritage Fund Corporation (the NOHFC). Finally, the Ministry reduced its original fee estimate to $100.60 and advised the requester that he would receive the records upon paying the outstanding balance of $44.10. The requester (now the appellant) appealed the Ministry's access decision. During mediation, the Ministry indicated that it had decided to grant full access to the two sets of minutes that were initially withheld pending approval by the NOHFC Board of Directors. Also during mediation, the Ministry advised the appellant that it was no longer relying on section 18(1)(g) to deny access to portions of five records, and issued a revised decision granting access to these records in their entirety. Therefore, these five records and the application of section 18(1)(g) are no longer at issue in this appeal. The Ministry continued to deny access to a 5-page attachment to the minutes of the March 25, 1999 meeting of the NOHFC Board, pursuant to section 13(1) of the Act . The unresolved issues relating to the one remaining record were transferred to the adjudication stage of the appeal process. I sent a Notice of Inquiry to the Ministry initially, and received representations in response. I then sent the Notice to the appellant, together with a copy of the non-confidential portions of the Ministry's representations. The appellant did not submit representations. RECORDS: The record is a 5-page attachment to the minutes of the March 25, 1999 meeting of the Board of Directors of the NOHFC, entitled "Toward a Northern Ontario Tourism Action Plan: Proposed NOHFC Initiative". The minutes themselves have already been disclosed to the appellant. DISCUSSION: Section 13(1) of the Act reads: A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution. I recently issued Order PO-2028, which involved the same parties as the current appeal (Order PO-2028 is subject to an application for judicial review). In that order I stated: In previous orders, this office has found that the words "advice" and "recommendations" have similar meanings, and that in order to qualify as "advice or recommendations" in the context of section 13(1), the information in question must reveal a suggested course of action that will ultimately be accepted or rejected by its recipient during the deliberative process of government policy-making and decision-making [see, for example, Orders P-118, P-348, P-883, P-1398 and PO-1993]. In addition, adjudicators have found that advice or recommendations may be revealed in two ways: (i) the information itself consists of advice or recommendations; or (ii) the information, if disclosed, would permit one to accurately infer the advice or recommendations given [see Orders P-1037 and P-1631]. Ministry's submissions The Ministry identifies that the record is a "Proposed Initiative" (PI) prepared by the Ministry's Regional Economic Development Branch (REDB) and presented by the Director of that branch to the NOHFC. The Ministry explains that employees in the REDB are divided into a series of teams who serve as the Ministry's focal point for economic development in Northern Ontario. Two of the responsibilities of these teams, as identified by the Ministry, are to "facilitate consultation with northerners on policy ideas and initiative" and to "support [the NOHFC] by promoting programs, assessing proposals and monitoring projects". In this regard, the Ministry submits: … the extensive consultation with tourism industry stakeholders in the north and the development of tourism initiatives presented in the portion of the record at issue and the resulting advice and recommendations provided to the Board are clear elements of the mandate of the REDB and its area teams. As far as the record itself is concerned, the Ministry submits: … the [PI] contains a recommendation that the initiatives described in the document be considered by the NOHFC Board. Although the word proposal is used, it is clear in the context that the initiatives are being recommended for approval by the NOHFC Board as part of its tourism program. Apart from this overall recommendation, the document describes each of the recommended initiatives and implicitly recommends specific components and criteria described for each initiative. The description of the initiatives therefore contains its own recommendations within the larger suggested course of action - to fund the initiatives as part of the existing tourism program. It cannot be disclosed without revealing the advice that relates to these specific recommendations or the overall suggested course of action. The Ministry points out that the NOHFC Board has the authority to consider the various recommended initiatives, and to either accept all of them, only some of them, or to reject the recommendations and fund none of them. The Ministry submits: The recommendation for these tourism initiatives was clearly prepared for the purpose of advising the Board, which would make the ultimate decision after consideration of that advice. In its representations, the Ministry changed its position with respect to page 1 of the record. The Ministry continued to maintain that this introductory background section: … qualifies as advice, in that it serves to place the recommended initiatives into context and is essential to understanding the basis of what is being recommended. However, the ministry notes that this section is also more factual, would not reveal the substance of the advice or recommendation and may be released to the appellant. In support of its position that pages 2-5 should not be disclosed, the Ministry points to Orders 94 and PO-1823, which deal with the purpose underlying the section 13(1) exemption. In Order 94, former Commissioner Sidney B. Linden stated: In my opinion, this exemption purports to protect the f
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Legislation
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Aug 08, 2002
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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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