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Document
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PO-1806-F
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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 (the affected party) with sections 2.1 and 2.2 of an order made against it pursuant to section 18 of the Environmental Protection Act . The order was served on the affected party by the Ministry on May 4, 1999. The requester, representing an environmental organization, provided this office with the specific requirements from the Order relating to the requested information. The Ministry notified the affected party under section 28 of the Act . The affected party objected to the disclosure of the responsive records to the appellant. Based on the submissions received from the affected party, the Ministry denied access to the records, claiming the application of the exemptions found in sections 17(1)(a), (b) 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 an institution's head 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 or 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 first seek the representations of the parties resisting the disclosure of the records, in this case the Ministry and the affected party, both of whom made submissions. In Interim Order PO-1780-I, I ordered that the non-confidential portions of the representations of the Ministry and the affected party be shared with the appellant, who was also invited to make submissions. Upon receipt of the representations of the appellant, the non-confidential portions of her submissions were also shared with the Ministry and the affected party, who were requested to make any additional submissions by way of reply pertaining particularly to the application of section 23 to the requested information. The affected party chose to make further reply representations responding to the issues raised by the appellant's submissions. The records consist of two documents: 1) Preliminary Report: Options and Technologies for Management of Trenton Mill Dissolved Solids, dated July 3, 1999, and 2) Options and Technologies for Management of Trenton Mill Dissolved Solids, Preliminary Engineering and Design, dated October 3, 1999. Included with these two documents are a fax cover sheet and two covering letters from the affected party's solicitors. DISCUSSION: THIRD PARTY INFORMATION General Principles For a record to qualify for exemption under sections 17(1)(a), (b) or (c), the Ministry and/or the affected party 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. [Orders 36, M-29 and M-37] The Ontario Court of Appeal recently overturned the Divisional Court's decision quashing Order P-373 and restored Order P-373. In that decision the Court stated 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] [ Ontario (Workers' Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 at 476 (C.A.), reversing (1995), 23 O.R. (3d) 31 (Div. Ct.)] The Ministry indicates that it is no longer relying on the exemption in section 17(1)(b) and the affected party's submissions do not consider this section. Based on my review of the records and the submissions of the parties, I agree that it has no application in the present appeal and will not address it further in this order. Part One of the Test - Types of Information The affected party submits that: . . . The Reports (the records at issue) are
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Legislation
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FIPPA
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17(1)(a)
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17(1)(c)
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Section 23
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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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Jul 18, 2000
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Type
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Order – Final
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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