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Document
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P-528
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File #
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P-9300170
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Institution/HIC
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Ministry of the Attorney General (Office of the Public Trustee)
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Summary
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ORDER The Office of the Public Trustee, an agency of the Ministry of the Attorney General (the Ministry), received a request pursuant to the Freedom of Information and Protection of Privacy Act (the Act ) for access to background financial information about a named home for senior citizens. The request was sent to the Ministry for processing. Pursuant to section 28(1) of the Act , the Ministry notified a representative of the senior citizens home as its interests might be affected by the disclosure of the requested records. The representative objected to the disclosure of the records. The Ministry decided to release the records to the requester, and notified the home's representative accordingly. The representative appealed the decision of the Ministry. Mediation was not possible and notice that an inquiry was being conducted to review the Ministry's decision was sent to the Ministry, the appellant and the requester. Representations were received from the Ministry only. The appellant indicated that his prior correspondence and communications with the Appeals Officer assigned to the appeal should be considered as his representations. The following are the records at issue in this appeal: 1. Letter dated November 8, 1990 from the Administrator of the appellant to the Charities Division of the Ministry 2. Letter dated August 28, 1990 from the Charities Division of the Ministry to the appellant 3. Deficiency Notice for Charities dated February 19, 1993 from the Office of the Public Trustee to the appellant 4. Audited financial statements of the appellant dated July 13, 1990 5. Audited financial statements of the appellant dated July 19, 1989 6. Audited financial statements of the appellant dated June 21, 1988 The sole issue arising in this appeal is whether the records at issue qualify for exemption pursuant to section 17(1) of the Act . This section reads as follows: 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; or (d) reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute. For these records to qualify for exemption under section 17(1) of the Act , each part of the following three-part test must be satisfied: 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. [Order 36] Because the Ministry is prepared to disclose the records, the burden of establishing the requirements of the test for exemption under section 17(1) of the Act rests with the appellant. Turning to the first part of the test, I must consider whether the disclosure of the information contained in the records would "reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information". In his response to the Ministry's section 28(1) notice, the appellant stated that "... we are refusing its disclosure because the financial data could have labour relations implications" (emphasis added). In order to qualify as financial information, the information must "pertain to finance or money matters". Records 2 and 3 In my view, the information contained in Records 2 and 3 is not financial information as the term is understood in section 17(1). Record 2 is merely a transmittal letter which encloses a notice of the reporting requirements of the Public Trustee. Record 2 is a form letter in which certain documentation and information is noted as being required by the Public Trustee in order that the appellant conform with the provisions of the Charities Accounting Act (the CAA ). Because all three parts of the test must be satisfied in order for a record to qualify for exemption under sections 17(1)(a), (b) or (c), and I have found that the first part of the test for exemption under section 17(1) has not been satisfied for Records 2 and 3, I need not consider them further. They should be disclosed to the requester. Records 4, 5, and 6 The information contained in the audited financial statements of the appellant, Records 4, 5, and 6, clearly constitutes financial information. With respect to part two of the test, the appellant must prove that the information was supplied to the Ministry and that it was supplied in confidence , either explicitly or implicitly. The appellant is a charitable institution within the meaning of The Charitable Institutions Act . As such, it provided Records 4, 5 and 6 to the Ministry pursuant to sections 1 and 2 of the CAA . I am satisfied that the "supplied" aspect of part two of the section 17(1) test has been met. With regard to the issue of whether the information was supplied in confidence, part two of the test for exemption under section 17(1) requires the demonstration of a reasonable expectation of confidentiality at the time the information was provided. It is not sufficient that the appellant had an expectation of confidentiality with respect to the information su
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Legislation
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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 02, 1993
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Type
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Order
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