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Document
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PO-1803
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File #
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PA-990236-1
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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 a draft environmental inspection report prepared by a named environmental engineering consulting firm (the consultant) and sent to the Ministry by one of the companies that hired the consultant to prepare the draft report (the company). The requester is involved in litigation with the company. The Ministry responded by issuing a fee estimate of $64.20, which was paid by the requester. The Ministry then notified the company of the appeal, pursuant to section 28 of the Act , and asked for submissions on whether the draft report should be disclosed. The company objected to disclosure. After considering the company's objections, the Ministry decided to disclose the record in its entirety. The company (now the appellant) appealed the Ministry's decision, claiming that the draft report qualified for exemption under sections 17(1)(a), (b) and (c) of the Act . I sent a Notice of Inquiry to the appellant. Because two other organizations (the affected persons), had jointly commissioned the report with the company, I also sent the Notice to them. I received representations from the appellant and both affected persons. After reviewing these representations I sent the Notice of Inquiry to the requester and the Ministry, together with the entire representations of the appellant and the affected persons. The requester and the Ministry also submitted representations. I then sent a Supplementary Notice to the Ministry, asking them to respond to particular questions concerning the possible application of section 17(1)(b). The Ministry submitted supplementary representations. Finally, I decided to provide the appellant and affected persons with an opportunity to reply to issues raised by the Ministry and the requester, and sent them a Supplementary Notice, together with the requester's entire representations and the relevant portions of the Ministry's representations and supplementary representations. No supplementary representations were submitted by the appellant or either of the affected persons. DISCUSSION: THIRD PARTY INFORMATION In the circumstances of this appeal, the Ministry has decided to disclose the record to the requester. The appellant appealed the Ministry's decision, and the affected persons support the appellant's position. Therefore the onus is on the appellant and the affected persons, as the parties resisting disclosure, to establish the requirements of the section 17(1)(a), (b) and (c) exemption claims. These sections state: 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 the record to qualify for exemption under these sections, the appellant and the affected persons must satisfy each part of the following three-part test: the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and the information must have been supplied to the Ministry in confidence, either implicitly or explicitly; and 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] In its decision upholding my Order P-373, the Court of Appeal for Ontario commented on the meaning of the three-part test articulated above, as follows: With respect to Part 1 of the test for exemption, the Commissioner adopted a meaning of the terms which is consistent with his previous orders, previous court decisions and dictionary meaning. His interpretation cannot be said to be unreasonable. With respect to Part 2, the records themselves do not reveal any information supplied by the employers on the various forms provided to the WCB. The records had been generated by the WCB based on data supplied by the employers. The Commissioner acted reasonably and in accordance with the language of the statute in determining that disclosure of the records would not reveal information supplied in confidence to the WCB by the employers. Lastly, as to Part 3, the use of the words "detailed and convincing" do not modify the interpretation of the exemption or change the standard of proof. These words simply describe the quality and cogency of the evidence required to satisfy the onus of establishing reasonable expectation of harm. Similar expressions have been used by the Supreme Court of Canada to describe the quality of evidence required to satisfy the burden of proof in civil cases. If the evidence lacks detail and is unconvincing, it fails to satisfy the onus and the information would have to be disclosed. It was the Commissioner's function to weigh the material. Again it cannot be said that the Commissioner acted unreasonably. Nor was it unreasonable for him to conclude that the submissions amounted, at most, to speculation of possible harm. [emphasis added]
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Legislation
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FIPPA
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17(1)(a), (b) & (c)
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Jul 11, 2000
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Type
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Order
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© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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