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Document
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P-1496
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File #
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P-9700240
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Institution/HIC
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Ministry of the Environment
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Summary
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BACKGROUND: A named company (the affected party) submitted an application to theIndustry Conservation Branch of the Ministry of Environment and Energy, now theMinistry of the Environment (the Ministry), for a grant pursuant to theEnvironmental Technologies Program (the ETP). The grant, which related to aninnovative container, was given to the affected party. The contract signedbetween the Ministry and the affected party provided a total of $250,000 forfive milestones after successful completion of the project. NATURE OF THE APPEAL: A lawyer (the appellant) made a request under the Freedom of Informationand Protection of Privacy Act (the Act ) to the Ministry. Therequest was for records relating to the grant issued to the affected party forthis innovative container. The Ministry located records responsive to the request and, pursuant tosection 28(1) of the Act , notified the affected party and requested thatit provide its views to the Ministry regarding disclosure. The affected partyresponded, indicating that certain portions of the record should not bedisclosed because section 17 applied. The affected party's reasons focused onthe research and developmental work that it was performing in the area of thisparticular innovative container. The affected party was concerned thatdisclosure of the information would provide an advantage to a competitor who hasnot spent the resources and efforts in research and development. The Ministry subsequently issued a decision to the appellant grantingpartial access to the responsive records. The Ministry withheld the remainingrecords from disclosure on the basis of section 17(1) of the Act (thirdparty information). The appellant appealed the denial of access. In his letter of appeal, the appellant indicated that he was limiting theappeal to the identity of sub-contractors/customers and expenditures by thethird party for specific milestones which are found in the following records: (a) Record 1 - page 30 of the agreement (estimated projects costs, cashflow and timing); (b) Records 2 - 6, respectively - page 2 of four task reports and thefinal report (project costs and cash flow); (c) Record 7 - financial statements for year ending March 31, 1996,Auditor's Report; and (d) Record 8 - statements of subcontractor accounts. This office provided a Notice of Inquiry to the Ministry, the appellant andthe affected party. Representations were received from all three parties. DISCUSSION: THIRD PARTY INFORMATION For a record to qualify for exemption under section 17(1)(a) or (c), theMinistry and/or the affected party must satisfy each part of the followingthree-part test: 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 inconfidence, either implicitly or explicitly; and 3.the prospect of disclosure of the record must give rise to a reasonableexpectation that one of the harms specified in (a) or (b) of section 17(1) willoccur. [Order 36] All three parts of the test must be satisfied in order for the exemption toapply. Type of Information The Ministry and the affected party both submit that the records containcommercial and financial information. Records 1 - 6 all contain the samecategories of information. This information is found under the followingheadings: direct labour/ benefits/ travel/ equipment/ materials/ plant cost/subcontracts/ overhead. In my view, these records all contain informationpertaining to the costs of the project, which qualifies as financial andcommercial information. Record 7 contains the financial statements of theaffected party and qualifies as financial information. Record 8 contains thestatements of account from subcontractors and similarly represents the cost ofthe project. This information also qualifies as financial and commercialinformation. Accordingly, I find that the first requirement of the exemptionhas been met. Supplied in confidence In order for this part of the section 17(1) test to be met, the informationmust have been supplied to the Ministry in confidence, either implicitly orexplicitly. The information will also be considered to have been supplied ifits disclosure would permit the drawing of accurate inferences with respect tothe information actually supplied to the institution. Previous orders have addressed the question of whether the informationcontained in an agreement entered into between an institution and a third partywas supplied by the third party. In general, the conclusion reached in theseorders is that, for such information to have been supplied to an institution,the information must have been the same as that originally provided by the thirdparty. Since the information in an agreement is typically the product of anegotiation process between the institution and the third party, thatinformation will not qualify as originally having been "supplied" forthe purpose of section 17(1) of the Act . As I indicated above, Record 1 contains page 30 of the agreement between theMinistry and the affected party. The portion which has been denied is the detailedbreakdown of the estimated project costs, cash flow and timing. Both the Ministry andthe affected party state that the information contained in Record 1, althoughpart of the agreement, is the estimated cost of the project and is based oninformation supplied directly by the third party in support of the grantapplication. It is clear that the information in Records 2 through 8 was supplied to theMinistry by the affected party. In the circumstances, I am satisfied that thedisclosure of the information in Record 1 would reveal information supplied tothe Ministry. With respect to whether the records were supplied to the Ministry "inconfidence", the Ministry states that it is the Ministry's practice to keepapplications and all subsequent documentation pertaining to grants confidentialas these types of records reveal information that is often considered as havingscientific, technical, commercial or business value by the proponent. The Ministry indicates further that its guideline for completing theapplication states that: Ontario will waive its rights to the intellectual property developedthrough the R and D carried out under the ETP provided that certain conditionsare met. As long as the proponent commercializes the product or process inCanada and does not default on the requirements of the contract, the proponentcan sell the product or process without royalties to Ontario. The Ministry points out that Article 10 of the agreemen
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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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Dec 02, 1997
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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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