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Document
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PO-1780-I
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File #
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PA-000003-1
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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 Ministry of the Environment (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for all records in the possession of the Ministry relating to compliance by a named company with sections 2.1 and 2.2 of an Order made against it pursuant to section 18 of the Environmental Protection Act . The Ministry notified the company under section 28 of the Act . The company objected to the disclosure of the responsive records to the appellant. Based on the submissions received from the company, the Ministry denied access to the records, claiming the application of the exemptions found in sections 17(1)(a) and (c) of the Act to them. The requester, now the appellant, appealed the Ministry's decision. In her appeal materials, the appellant has raised the possible application of section 23 of the Act , the so-called "public interest override" and section 11 of the Act which obliges the Minister to disclose any record to the public where he or she has reasonable and probable grounds to believe that it is in the public interest to do so as the record reveals a grave environmental, health of safety hazard to the public. In addition, the appellant objects to the contents of the Ministry's decision letter, claiming that it lacks the particulars required by section 29(1)(b) of the Act . During the mediation stage of the appeal, the appellant agreed to withdraw her reliance on the provisions of section 11. I decided to seek the representations of the parties who are resisting disclosure of the records, in this case the Ministry and the company (the affected party), first. Both of these parties submitted representations. ISSUE: Both the Ministry and the affected party have requested that I withhold all of their representations from the appellant. The purpose of this interim order is to rule on these requests. DISCUSSION: Sharing of representations procedure In the Notice of Inquiry cover letter to the Ministry and the affected party, I stated: The representations you provide to this office may be shared with the appellant, unless there is an overriding confidentiality concern. The procedure for the submitting and sharing of representations is set out in the attached document entitled Inquiry Procedure at the Adjudication Stage . Please refer to this document when preparing your representations. The Inquiry Procedure document states: In its representations, the first party must indicate clearly, and in detail: which information in its representations, if any, the party wishes the Adjudicator to withhold from the second party; and its reasons for this request (see confidentiality criteria below). The document later sets out the criteria for withholding representations, as follows: The Adjudicator may withhold information contained in a party's representations where: (a) disclosure of the information would reveal the substance of a record claimed to be exempt or excluded; (b) the information would be exempt if contained in a record subject to the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act; or (c) the information should not be disclosed to the other party for another reason. For the purposes of paragraph (c) above, the Adjudicator will apply the following test: (i) the party communicated the information to the IPC in a confidence that it would not be disclosed to the other party; and (ii) confidentiality must be essential to the full and satisfactory maintenance of the relation between the IPC and the party; and (iii) the relation must be one which in the opinion of the community ought to be diligently fostered; and (iv) the injury to the relation that would result from the disclosure of the information would be greater than the benefit thereby gained for the correct disposal of the litigation. The Ministry's confidentiality request The Ministry addressed the confidentiality of representations issue in its submissions as follows: This document is considered the confidential facts and evidence of the Ministry of the Environment for the sole purpose of defending our actions with respect to the request made by [the appellant] and no other purpose. It is intended for the exclusive use of staff of the Information and Privacy Commissioner/Ontario and in accordance with section 55(1) of the Freedom of Information and Protection of Privacy Act, may not be disclosed to the appellant or affected parties. The Affected Party's confidentiality request The affected party indicated to me simply that it objects to the disclosure of any of its representations to the appellant. The affected party did not elaborate on their objection. FINDINGS: Further opportunity to make submissions on the sharing of representations Based on the Inquiry Procedure document, parties are not permitted a further opportunity to make submissions on the sharing of representations issue, barring exceptional circumstances. The opportunity to do so is provided at the time the original representations are made. There are no exceptional circumstances which would take this case outside the norm. As a result, this interim order constitutes my decision on this issue, and I will not be providing the Ministry or the affected party with an additional opportunity to make submissions in this regard. The Ministry's representations Having reviewed the representations of the Ministry in their entirety, I find that with one exception, they do not fit within any of the confidentiality criteria described in the material that ac
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Legislation
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Subject Index
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Signed by
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Donald Hale
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Published
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May 05, 2000
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Type
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Order – Interim
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© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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