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Document
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P-1001
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File #
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P-9500215
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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 any information concerning the formation of alliances or facilities-sharing arrangements between a named corporation (the Corporation) and three Ministry laboratories. The Ministry advised the requester that the first laboratory was now closed and that no alliances or agreements had been entered into between the Corporation and the second laboratory. The Ministry identified 23 records as being responsive to that part of the request related to the third laboratory and, pursuant to section 28 of the Act , advised the Corporation of the request. The Corporation objected to the disclosure of some of the records. The Ministry subsequently granted access to three records in their entirety and a portion of two others, including the joint facilities access agreement (the Access Agreement). The Ministry denied access to the balance of the documents under the following exemptions contained in the Act : advice and recommendations - section 13(1) third party information - section 17(1) economic and other interests - section 18(1)(c) The requester appealed the denial of access. A Notice of Inquiry was sent to the Ministry , the appellant and the Corporation. Representations were received from all three parties. After it submitted its representations, the Ministry forwarded another letter to this office indicating that it was now applying certain previously-claimed exemptions to additional records. The Corporation was represented by counsel in this inquiry. The records at issue and the corresponding exemptions are set out in Appendix A to this order. THE ISSUES The Corporation submits that there are seven issues to be addressed in this appeal: (1) The exclusion of the Corporation from the operation of the Act . (2) A final agreement supersedes negotiations and draft documents leading up to the final agreement. (3) The non-responsive nature of information contained in portions of Record 2 and parts of the electronic mail (E-mail) portion of Record 10. (4) The application of sections 17(1)(a) and (c) of the Act to Records 2, 3, 7, 10, 15, 16, 17, 18, 20, 21 and 22. (5) The application of section 19 to the E-mail portion of Record 10. (6) The application of section 18(1)(c) to the records. (7) The application of section 13(1) to the records. I will consider issues (1) and (2) as preliminary matters in this order. In both cases, these issues must be determined before the remainder may be considered. I will also consider the additional discretionary exemptions claimed by the Ministry as a preliminary issue. The appellant has indicated that he is not disputing the position of the Corporation that certain parts of Records 2 and 10 (the E-mail portion) are not responsive to his request. Accordingly, I need not consider issue (3). The Ministry has claimed that section 17(1) applies to exempt the records indicated in Appendix A from disclosure. The Corporation submits that this exemption also applies to Records 2, 3, 7, 10, 15 and 17. As section 17(1) is a mandatory exemption, I will consider its application to these additional records in my discussion of issue (4). Because of my findings on the application of section 17(1) to the E-mail portion of Record 10, I need not consider the Corporation's issue (5). I will consider issues (6) and (7) in the usual course based on the submissions of the Ministry. PRELIMINARY MATTERS APPLICATION OF THE ACT TO THE CORPORATION The Corporation correctly notes that it is not designated as an "institution" for the purposes of the Act . It maintains that, by excluding the Corporation from the application of the Act , the Legislature acknowledged the need to protect and maintain the confidential and privileged nature of information involving the Corporation and its clients. The Corporation then refers to the legal principle that "a party cannot do indirectly that which it cannot do directly". Based on this principle, it believes that it would be wrong for the appellant to obtain information about the Corporation indirectly from the Ministry when the Corporation does not have a direct legislative obligation to disclose this information as an institution under the Act . The Corporation cites the case of Madden v. Nelson and Fort Sheppard Railway [1899] A.C. 626 (H.L.) in support of this proposition. This case, however, was decided in the context of determining whether a statute which imposed certain obligations on a railway company, a federal undertaking, was beyond the jurisdiction of a provincial legislature. The Court referred to the principle cited by the Corporation in its discussion of the interpretation to be given to the provincial legislation, an issue entirely different from the statutory scheme set out in freedom of information legislation. One of the purposes set out in section 1(a)(i) of the Act is to provide a right of access to information under the custody or control of an institution in accordance with the principle that information should be available to the public. It is my opinion that the issue raised by the Corporation must be based on the wording and intent of the Act . Although the Corporation is not listed among those entities which are defined as "institutions" for the purposes of the Act , there is nothing in the Act which expressly excludes from its application records which originated from third parties such as the Corporation. Section 10(1) of the Act provides as follows: Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless the record or the part of the record falls within one of the exemptions under sections 12 to 22. [emphasis added] In Order P-239, Commissioner Tom Wright addressed a similar argument made by the Office of the Ontario Ombudsman. In that case, the Ombudsman submitted that because the Ombudsman's office is not an institution listed in the Act , it would be inappropriate to construe the Act as applicable to records prepared by the Omb
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Legislation
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FIPPA
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10(1) custody or control
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17(1)(a)
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17(1)(c)
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13(1)
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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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Sep 20, 1995
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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