|
|
Document
|
|
P-435
|
|
|
|
|
|
File #
|
|
P-9200588
|
|
|
|
|
|
Institution/HIC
|
|
Ministry of Northern Development and Mines
|
|
|
|
|
|
Summary
|
|
ORDER
BACKGROUND:
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 certain funding proposals (the proposals) submitted to the Ministry under the Mine
Technology Research Subprogram of the Northern Ontario Development Agreement (NODA),
together with the Ministry's evaluations of the proposals.
NODA is a joint undertaking of the Government of Canada and the Government of Ontario,
whose purpose is to encourage economic development and diversification in Northern Ontario by
the development and implementation of strategies for sustainable development in tourism,
forestry and minerals. A Joint Federal/Provincial Management Committee administers the
programs operated under NODA. The Mining and Minerals Technology Program Technical
Sub-Committee is responsible for administration of the funding program.
The requester specifically sought access to the following proposals and corresponding
evaluations: 05, 06, 14, 16, 18, 21, 22, 25, 27, 33, 34, 36, 37, 41, 43, 44, 45, 46, 52, 53, 54, 55,
57, 58, and an unnumbered proposal submitted for the creation of the Canadian Abandoned Mine
Agency. All proposals relate to mining and minerals technology. The Ministry provided access
to records relating to proposal 22, which involved the requester, and denied access to all other
responsive records, pursuant to sections 15(a) and 17(1) of the Act. The requester appealed the
Ministry's decision.
Mediation was not successful, and notice that an inquiry was being conducted to review the
decision of the Ministry was sent to the appellant, the Ministry and the 14 companies and/or
individuals who submitted the particular proposals identified by the appellant (the affected
persons). Written representations were received from the Ministry and the appellant. Two
affected persons involved with projects 06, 18, 27 and 37 agreed to the release of their proposals
and evaluations, and a third affected person objected to the release of the proposal and evaluation
relating to his project. None of the other affected persons responded to the Notice of Inquiry.
In Order P-388, I considered the application of sections 15(a) and 17(1) to the records at issue in
Appeal #P-920588, including what was referred to as the unnumbered proposal and
corresponding evaluation, and ordered the Ministry to disclose all records to the appellant. I
subsequently learned that, due to an oversight by this office, representations had not been
solicited from the originator of the unnumbered proposal (the final affected person) before Order
P-388 was issued. I was asked by the final affected person to re-open Order P-388 and to
provide it with an opportunity to make representations in respect to the disclosure of the
unnumbered proposal and corresponding evaluation.
This request by the final affected person raised the question of my authority to re-open and
reconsider a part of Order P-388. Accordingly, I solicited representations from the appellant, the
Ministry and the final affected person with respect to my jurisdiction to reconsider Order P-388
in these circumstances.
- 2 -
[IPC Order P-435/March 22, 1993]
At the same time, for the purposes of expediency, I invited the final affected person to also make
representations on the substantive issues raised in the appeal. In the interim, I instructed the
Ministry that Order P-388 was stayed.
Coincidental with the release of this order, I have instructed the Ministry to comply with the
provisions of Order P-388 with respect to all records at issue in Appeal #P-920588, except the
unnumbered proposal and corresponding evaluation (the record). In this order I will be
considering the application of various exemptions claimed by the Ministry and the final affected
person with respect to this remaining record.
For the purposes of this order, I am assuming that where a person who is directly affected by the
appeal has not been provided with an opportunity to make representations concerning disclosure
of the record, I have the legal authority to re-open the Order and reconsider the application of the
exemptions claimed by the Ministry to that record, namely sections 15(a) and 17(1) of the Act.
PRELIMINARY ISSUE
In its original decision letter, the Ministry claimed sections 15(a) and 17(1) of the Act as the
basis for exempting the various records at issue in Appeal #P-920588, including the record
which is the subject of this order. The Ministry did not claim section 15(b) of the Act with
respect to this record. In its representations, the final affected person raises section 15(b) of the
Act, and submits that this section is applicable to the record.
In Order P-257 I addressed the situation where an affected person attempts to raise the
application of a discretionary exemption which was not claimed by the institution. At page 5 of
that order I stated:
As a general rule, with respect to all exemptions other than sections 17(1) and
21(1), it is up to the head to determine which exemptions, if any, should apply to
any requested record. If the head feels that an exemption should not apply, it
would only be in the most unusual of situations that the matter would even come
to the attention of the Commissioner's office, since the record would have been
released. If, during the course of an appeal, a head indicated a change in position
in favour of release of information not covered by sections 17(1) or 21(1), again,
this would almost always be an acceptable course of action, consistent with the
purposes of the Act. In my view, however, the Information and Privacy
Commissioner has an inherent obligation to ensure the integrity of Ontario's
access and privacy scheme. In discharging this responsibility, there may be rare
occasions when the Commissioner decides it is necessary to consider the
application of a particular section of the Act not raised by an institution during the
course of the appeal. This could occur in a situation where it becomes evident
that disclosure of a record would affect the rights of an individual, or where the
institution's actions would be clearly inconsistent with the application of a
mandatory exemption provided by the Act. It is possible that concerns such as
these could be brought to the attention of the Commissioner by an affected person
during the course of an appeal and, if that is the case, the Commissioner would
have the duty to consider them. In my view, however, it is only in this limited
- 3 -
[IPC Order P-435/March 22, 1993]
context that an affected person can raise the application of an exemption which
has not been claimed by the head; the affected person has no right to rely on the
exemption, and the Commissioner has no obligation to consider it."
In my view, this appeal does not raise the type of situations described in Order P-257, and,
because the Ministry has not claimed section 15(b) of the Act as a basis for exempting the record
at issue in this appeal, I find that this section is not applicable.
ISSUES:
The issues arising in this appeal are:
A. Whether the discretionary exemption provided by section 15(a) of the Act applies to the
record.
B. Whether the mandatory exemption provided by section 17(1) of the Act applies to the
record.
SUBMISSIONS\CONCLUSIONS:
ISSUE A: Whether the discretionary exemption provided by section 15(a) of the Act
applies to the record.
Section 15(a) of the Act states:
A head may refuse to disclose a record where the disclosure could reasonably be
expected to,
prejudice the conduct of intergovernmental relations by the
Government of Ontario or an institution;
In order to qualify for exemption under section 15(a) the record must meet the following test:
1. The Ministry must demonstrate that disclosure of the record could
give rise to an expectation of prejudice to the conduct of
intergovernmental relations; and
2. The relations which it is claimed would be prejudiced must be
intergovernmental, that is relations between the Ministry and
another government or its agencies; and
3. The expectation that prejudice could arise as a result of disclosure
must be reasonable.
[Order 210]
The Ministry submits that prejudice would result from the release of the information contained in
the record. The Ministry's representations, referring to advice received from the Federal
- 4 -
[IPC Order P-435/March 22, 1993]
Government's co-chairperson of the Mining and Minerals Technology Program Technical Sub-
Committee, state that:
release of the information in the records would likely alienate the mining industry
in general and discourage its participation in the Northern Ontario Development
Agreement, and accordingly the records should not be disclosed. It was felt by
[Ministry officials] that due to the very dominant role the federal government
plays in this program, if we did not respect their wishes federal-provincial
relationships in this area would be seriously prejudiced.
In my view, the Ministry's representations, as well as the position taken by the Federal
Government, focus on the possibility that release of the record would prejudice the relationship
between the mining industry and both levels of government, not the relationship between the
federal and provincial governments themselves. Accordingly, I find that the Ministry has failed
to establish that an expectation of prejudice to the conduct of intergovernmental relations could
reasonably be expected to result from disclosure of the record and, therefore, the record does not
qualify for exemption under section 15(a) of the Act.
ISSUE B: Whether the mandatory exemption provided for by section 17(1) of the Act
applies to the record.
Section 17(1) of the Act provides, in part:
A head shall refuse to disclose a record that reveals a trade secret or scientific,
technical, commercial, financial or labour relations information, supplied in
confidence implicitly or explicitly, where the disclosure could reasonably be
expected to,
(a) prejudice significantly the competitive position or
interfere significantly with the contractual or other
negotiations of a person, group of persons, or
organization;
(b) result in similar information no longer being
supplied to the institution where it is in the public
interest that similar information continue to be so
supplied;
(c) result in undue loss or gain to any person, group,
committee or financial institution or agency;
For a record to qualify for exemption under sections 17(1)(a), (b) and/or (c) the Ministry and/or
the affected person resisting disclosure must satisfy each part of the following three-part test:
- 5 -
[IPC Order P-435/March 22, 1993]
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 section 17(1) will occur.
[Order 36]
I have examined the unnumbered proposal and, in my view, it contains scientific, technical
and/or financial information, thereby satisfying the requirements for the first part of the section
17 test. As far as the corresponding evaluation is concerned, in my view, only the information
relating to the nature of the proposal and/or the requested funding can properly be considered as
scientific, technical and/or financial information; the remaining portion of the evaluation fails to
satisfy the requirements of the first part of the test.
The Ministry takes the position that the information contained in the proposal and the evaluation
was "supplied" by the final affected person. Although, I accept that the proposal was supplied to
the Ministry, the information contained in the evaluation was created by Ministry staff, and was
not "supplied" by the final affected person. It is possible for information which was not actually
supplied to the Ministry to be "supplied" for the purposes of section 17(1) if its disclosure would
permit the drawing of accurate inferences with respect to information which was actually
supplied to the Ministry (Order 203). In my view, the only information contained in the
evaluation which would permit the drawing of accurate inferences about information actually
supplied to the Ministry is the same portion of the evaluation which I found to contain scientific,
technical and/or financial information under my discussion of the first part of the test.
Therefore, I find that the unnumbered proposal and those parts of the evaluation which contains
scientific, technical and/or financial information were "supplied" to the Ministry for the purpose
of section 17(1) of the Act.
As to whether this record was supplied "in confidence", I find that the request for proposals
issued jointly by the Ontario Mining Association, the Ontario Ministry of Northern Development
and Mines, and the Federal Department of Energy, Mines & Resources, makes no explicit
reference to confidentiality, nor was any evidence submitted during the course of this appeal
which would indicate that the Ministry offered any explicit undertaking regarding
confidentiality. As far as any implicit expectation of confidentiality is concerned, the Ministry
states in its representations:
The practice by both the federal and provincial officials was (and is) to treat
proposals in confidence and not circulate them beyond the evaluation process.
My understanding is that this practice was well known by the industry participants
and accordingly gave rise to the expectation of confidentiality on their part.
- 6 -
[IPC Order P-435/March 22, 1993]
After having been provided with an opportunity to make further representations with respect to
the record at issue in this appeal, the Ministry submitted an affidavit from the Co-ordinator of the
NODA program which indicates that he was aware that the final affected person expected the
proposal to be treated confidentially.
In its representations, the final affected person states:
... the unnumbered proposal constitutes third party information within the
meaning of section 17 of the Act that contains technical and financial information
supplied in confidence implicitly or explicitly that could reasonably be expected
to result in similar information no longer being supplied to the Ministry where it
is in the public interest that similar information continue to be so supplied.
The final affected person also submits an affidavit similar in nature to the one provided by the
Ministry, which states that the final affected person communicated an expectation of
confidentiality at the time the proposal was submitted.
Based on the evidence before me in this appeal, I feel that some doubt exists as to whether the
portions of the record which I have found were "supplied" to the Ministry were supplied "in
confidence". However, it is not necessary for me to make a finding on this part of the test,
because the requirements of the third part of the section 17(1) exemption test have not been
established.
To satisfy the third part of the test, the Ministry and/or the final affected person must present
evidence that is detailed and convincing, and must describe a set of facts and circumstances that
would lead to a reasonable expectation that the harm described in sections 17(1)(a), (b) and/or (c)
would occur if the information was disclosed. Generalized assertions of fact in support of what
amounts, at most, to speculations of possible harm do not satisfy the requirements of the third
part of the test (Orders 36, P-373, P-394 and P-400).
In its representations, the Ministry makes no reference to the third part of the test, and provides
no evidence in support of the position that one of the enumerated harms would reasonably be
expected to occur if the record is disclosed.
The final affected person's representations allude to the type of harm envisioned by section
17(1)(b), but include only the following statements in support of its position:
It is in the public interest for both governments to share information and to avoid
duplication of efforts. Without the assurance that expectations of confidentiality
would be respected by the Government of Ontario, Canada would be reluctant to
communicate proposed federal initiatives.
- 7 -
[IPC Order P-435/March 22, 1993]
|
|
|
|
|
|
Legislation
|
|
|
|
|
|
|
|
Subject Index
|
|
|
|
|
|
|
|
Signed by
|
|
Tom Mitchinson
|
|
|
|
|
|
Published
|
|
Mar 22, 1993
|
|
|
|
|
|
Type
|
|
Order
|
|
|
|
|
|
Judicial Review
|
|
Affected party's application abandoned March 31, 1995
Canada (Attorney General) v. Ontario (Information and Privacy Commissioner), Toronto Doc. 247/93 (Ont. Div. Ct.) Toronto Doc. 247/93 (Ont. Div. Ct.)
|
|
|
|
|
|
<<
Back
|
|
|