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Document
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PO-2043
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File #
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PA-010208-1
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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 ) for access to information relating to three specific Mining Licences of Occupation (MLO), dated May 6, 1947, December 17, 1951 and December 27, 1928, respectively. Specifically and in respect of each of the licences, the requester sought access to: a) all copies from date of issue to present of invoices of rents payable; b) all records from date of issue to present indicating date and amount of payments made under each; c) all copies from date of issue to present of receipts issued or acknowledged by the Treasurer of Ontario in respect of payments received under each; d) all copies from date of issue to present of default notifications prepared and/or delivered under each and e) any and all documents relevant to the issue whether each of the licences is actually or potentially void. "Documents" in this context should be understood to include any and all notes, memoranda, e-mail writings, disks saved documents, and fax copy correspondence. In making this request, the requester referred to section 63(2) of the Act , which provides that "this Act shall not be applied to preclude access to information that is not personal information and to which access by the public was available by custom or practice immediately before this Act comes into force". The requester indicated that a former Senior Policy Advisor, Chief Mining Recorder and Supervisor responsible for forfeitures in the Mining Lands Section of the Ministry advised that the records responsive to this request were available to the public from at least 1951 until 1988, where his knowledge ceases. The requester contended that since the custom and practice was that these records were available to the public immediately before the Act came into force on January 1, 1988, it is legally entitled to see them. The requester indicated further that it does not believe that section 17(1) should apply to the records because "it is against public policy as enacted in the Mining Act to keep the payments confidential, because all open Crown mineral rights may be staked and recorded." The requester also took the position that the records at issue record payments that are legally required to be made to the Ministry. The Ministry provided a fee estimate of $1,406.30 in respect of search time and photocopying costs. The Ministry indicated that an estimate of the preparation cost for records to be disclosed had yet to be determined. The requester paid the estimated fee. Pursuant to section 28 of the Act , the Ministry then notified two companies, whose interests may be affected by the disclosure of the records. One of the companies (Company A) holds ownership of the first two Licences, and is co-holder with the second company (Company B) of the third Licence. The two companies (the third parties) objected to the disclosure of the responsive records. In so objecting, Company B, in addition to making its own submissions, referred to and relied on the submissions made by Company A. The Ministry notified the third parties that it had decided to grant access to the records, as it was of the opinion that section 17(1) of the Act did not apply to them. The Ministry subsequently advised the requester that it had decided to grant access to the responsive records, subject to the third parties' right to appeal. The Ministry also indicated it would remove information that it deemed to be non-responsive from the records. Company A appealed the Ministry's decision to grant access to the requester. The requester did not appeal the Ministry's decision to withhold non-responsive information. Mediation of the appeal initiated by Company A was not successful and the appeal was moved to inquiry. I decided to seek representations from Company A, initially. Although Company B did not appeal the Ministry's decision, I notified it as an affected party in this appeal and sought submissions from it on the issues to be adjudicated. Only Company A submitted representations in response, which I then sent to the requester and the Ministry along with a copy of the Notice of Inquiry, amended to reflect matters arising from Company A's representations, in particular, Company A's contention that the Ministry did not sever out all of the information that was not responsive to the request. Both the Ministry and the requester submitted representations in response. After reviewing them, I decided to seek representations in reply from Company A, but only with respect to the possible application of the mandatory exemption at section 17(1) of the Act . In doing so, I enclosed a copy of the Notice of Inquiry that was sent to the Ministry and requester along with the portions of their representations that address the section 17(1) exemption. I also attached certain portions of the Ministry's and requester's representations that address section 63(2) since they may also be relevant to the application of section 17(1). Because of the findings I have made in this order, it is not necessary for me to consider the possible application of section 63(2). Resolved Issue In its submissions, Company A expressed concern regarding the scope of the responsive records identified by the Ministry. In bringing this forward, Company A effectively raised a new issue in this appeal, which I subsequently asked the other parties to address. With respect to this issue, the Ministry agreed, upon review, that the severing it initially did was not in accordance with the scope of the request. The requester also indicated that he has no objection to all non-responsive information being removed from the records at issue. On this basis, the scope of the responsive records issue has been resolved and I will not address it further. As a result, the sole issue to be adjudicated is whether the mandatory exemption in section 17(1) of the Act applies to the information at issue.
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Legislation
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Subject Index
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Signed by
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Laurel Cropley
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Published
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Sep 13, 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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