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Document
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PO-1707
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File #
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PA-980132-1
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Institution/HIC
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Ministry of the Environment
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Summary
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NATURE OF THE APPEAL: The requester, a member of the media made a request to the Ministry of the Environment (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act ). The request was for access to correspondence and reports relating to the abatement effort concerning air emissions from [a named company's] coke oven batteries numbers 6 and 7. In particular, he requested access to "documents relating to decisions about whether or not to pursue mandatory abatement with the company." Following third party notification, the Ministry decided to provide partial access to the records, as indicated in an index of records which it attached to its decision. The Ministry denied access to the remaining records pursuant to sections 17 and 19 of the Act . The decision letter also stated that some of the undisclosed information was not responsive to the request. The company appealed the Ministry's decision to release, either in whole or in part, 20 of the 33 records listed on the index. The company agreed with the Ministry's decisions with respect to the remaining 13 records and they, accordingly, are not at issue in this appeal. The requester did not appeal the Ministry's decision to deny access to certain portions of the records. Therefore, these portions of the records are not at issue in this appeal. During mediation, the requester indicated that he was not seeking the information in the portions of Records 5, 7, 11, 12, 13, 14, 17, 20, 25, 26, 27, 28 and 33 which the Ministry has withheld as being not responsive to the request. These portions of the above-noted records are not at issue. The requester does not agree, however, with the company's position that a portion of Record 31 is not responsive. This portion of the record remains at issue. Following the issuance of the Mediator's Report, the company withdrew its position that the word describing the type of meeting in Records 12, 17 (at the top of pages one and two), 26 and 28, is non-responsive and indicated that it does not object to disclosure of these portions. This information, therefore, is not at issue in this appeal and may be disclosed to the requester. I sent a Notice of Inquiry to the Ministry, the company and the requester. Representations were received from the company and the Ministry in response to the Notice. In addition, the company's letter of appeal includes extensive representations with respect to its reasons for objecting to the Ministry's decision. I have also been provided with the company's representations to the Ministry in response to the third party Notice. I have considered all of these communications in arriving at my decision in this appeal. There are two issues to be determined in this order: whether a portion of Record 31 is responsive to the request; whether the mandatory exemption in section 17(1) (third party information) applies to the records at issue. RECORDS: The records at issue consist of letters, minutes of meetings, plans, updates and other documents related to the request and comprise the withheld portions of Records 6, 7, 9, 12, 17, 20, 21, 22, 25, 26, 27, 28, 29 and 31 and Record 32 in its entirety. DISCUSSION: RESPONSIVE RECORDS The company objects to the disclosure of two words on Record 31 on the basis that they are not responsive to the request. In this regard, the company states that the particular "operation" referred to in this part of the record is a distinct operation which does not relate to the coke oven batteries. Further, the company indicates that this operation is a separate and specific area of the plant and has its own unique function. The Ministry notes that this phrase is found on a letter from the company to the Ministry which refers to all coke ovens at the company and relates to the company's abatement activities, specifically, coke ovens 6 and 7. The Ministry asserts that the operation referred to in the record relates to the use of coke ovens and is, moreover, a commonly used process. Therefore, the Ministry does not believe that the company would suffer any harm from the disclosure of this information. In my view, whether or not the company would suffer harm from disclosure is not relevant to whether this part of the record is responsive to the request. In Order P-880, former Adjudicator Anita Fineberg considered the standard to be applied in deciding whether records are responsive to a request. She stated: In my view, the need for an institution to determine which documents are relevant to a request is a fundamental first step in responding to a request. It is an integral part of any decision by a head. The request itself sets out the boundaries of relevancy and circumscribes the records which will ultimately be identified as being responsive to the request. I am of the view that, in the context of freedom of information legislation, "relevancy" must mean "responsiveness". That is, by asking whether information is "relevant" to a request, one is really asking whether it is "responsive" to a request. While it is admittedly difficult to provide a precise definition of "relevancy" or "responsiveness", I believe that the term describes anything that is reasonably related to the request. I agree with this analysis and adopt it for the purposes of this appeal. The request is clearly for records pertaining to the abatement activities of the company and the Ministry relating to the coke oven batteries. Although it may be that the two processes are linked in the overall operations of the coke ovens, this linkage is not necessarily tied to the company's abatement efforts or the Ministry's decisions as they concern the company's activities in this regard. I accept the company's explanation of the nature of the operation and am satisfied that it is not related to its abatement activities with respect to the coke ovens. Therefore, I find that this portion of Record 31 is not responsive to the request. Accordingly, I will order the Ministry not to disclose this portion of the record. THIRD PARTY INFORMATION
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Legislation
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FIPPA
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17(1)(a)
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17(1)(b)
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17(1)(c)
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17(1)
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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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Aug 24, 1999
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Type
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Order
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