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Document
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PO-2068
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File #
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Appeal PA-010366-2
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Institution/HIC
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Ministry of the Environment and Energy
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Summary
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NATURE OF THE APPEAL: The Ministry of Environment and Energy (the Ministry) (now the Ministry of Energy) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to “All records on special rate deals with large electricity customers under the competitive market (these would in part be records compiled as part of the Electricity Act, 1998, Regulation entitled Transition, Generation Corporation Rate Options)." The Ministry did not issue a decision letter within the statutory 30-day period and, as a result, the requester filed a “deemed refusal” appeal. The Ministry subsequently issued a decision letter and the deemed refusal appeal file was closed. The Ministry identified 27 responsive records, and notified a number of affected parties to seek their views regarding disclosure. Based on the results of the notification process, the Ministry decided to grant partial access to the records, with severances made pursuant to one or more of the following exemptions in the Act : - section 12(1) - Cabinet records; - section 17(1) - third party information; and - section 18(1) - economic or other harm to the Ministry. Specifically, 12 records were disclosed in full; four records were disclosed in part; 10 records were denied in their entirety; and one record was withheld on the basis that it was not responsive to the request. The requester (now the appellant) appealed the Ministry’s decision to deny access. During mediation, attempts were made to notify three affected parties who were either not notified by the Ministry or did not respond to the Ministry’s notification, to determine whether they would consent to disclosing information pertaining to them. One affected party objected to disclosure and the other two did not respond. Mediation was not successful in resolving all of the issues in this appeal, so the file was transferred to the adjudication stage of the process. I sent a Notice of Inquiry to the Ministry and the eight affected parties, initially, which outlined the facts and issues and requested representations. The affected parties included the Ministry of Finance (MOF) and Ontario Power Generation Inc. (OPG). The Ministry and six affected parties, including MOF and OPG, provided me with representations in response. One other affected party advised that it would not be providing representations, and the eighth affected party did not respond to the Notice. I then sent a modified Notice of Inquiry to the appellant, together with a copy of the non-confidential portions of the representations of the Ministry, MOF and OPG. The appellant advised this office that he would not be submitting representations. RECORDS: Fifteen records remain at issue, including one record that the Ministry claims is not responsive to the request. Records denied in full are Records 1-4, 11, 14, 23, 24, 25 and 27; and records denied in part are Records 6, 8+9, 10 and 26. The records consist of correspondence, presentation notes, background and meeting notes, memos, presentation slides, a sample electricity invoice and lists of companies receiving special rates. The records are described in an index provided to the appellant with the Notice of Inquiry as an attachment to the Ministry’s representations. DISCUSSION: RECORDS NO LONGER AT ISSUE In their representations, some affected parties consented to disclosing certain records relating to them. In some instances, the Ministry has also withdrawn its exemption claims for these same records. Specifically, the affected party connected to Record 3 consents to disclosing the following portions of that record: a letter dated July 7, 1999 from the affected party to MOF; and an October 6, 1999 series of presentation slides entitled “Surplus Power: History, Status, Issue, Proposal.” The Ministry has withdrawn any exemptions for these portions of Record 3, so they should be disclosed to the appellant. The rest of Record 3, which is another series of presentation slides, is not covered by the affected party’s consent and remains at issue in this appeal. Similarly, the affected party connected to Record 10 consents to disclosing the remaining responsive portions of this record, and the Ministry has withdrawn any exemption claims for it. Accordingly, the undisclosed portions on page 2 of Record 10 should be provided to the appellant. Record 6 consists of correspondence between an affected party and the Ministry/MOF. As described in the Ministry’s index (which has been provided to the appellant), Record 6 consists of correspondence about the “Elimination of Surplus Power Rate Tariff in Restructured Electricity Market”, and most of the text of this correspondence has already been disclosed to the appellant. Record 6 includes a three-page letter from the affected party to the two Ministers. A heading at the end of this letter indicates that the affected party sent the letter on behalf of a list of other companies that would appear to share an interest in the subject matter of the correspondence. When I sent my Notice of Inquiry to this affected party, I specifically asked it to provide representations on its own behalf and on behalf of the listed companies that it purported to represent on page 3 of the letter. The affected party responded by consenting to disclosure of the remaining portions of Record 6, but also suggested that I notify the other listed companies directly. I have decided, in the circumstances, that it is not necessary for me to notify these other companies. It is clear from the face of Record 6 that the affected party submitted its letter to the Ministry as a representative of a group of customers with a shared interest in the content of the letter. The affected party presumably had the consent of these companies to act on their behalf in submitting the letter, and, in my view, absent any indication from the affected party that these arrangements have changed, I am prepared to infer that the affected party continues to speak on their behalf. In this regard, it is significant to note that the Ministry has withdrawn its section 17(1) claim for Record 6, and that most of its content has already been disclosed to the appellant. Accordingly, Record 6 should be disclosed to the appellant. RESPONSIVENESS The Ministry takes the position that Record 25 is not responsive to the appellant’s request. Previous orders have established that in order to be responsive a record must be “reasonably related” to the request. In Order P-880, former Adjudicator Anita Fineberg 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 des
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Legislation
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FIPPA
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10(2)
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12(1)
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12(1)(b)
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12(1)(f)
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17(1)(a)
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17(1)(c)
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18(1)(a)
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18(1)(c)
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18(1)(d)
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17(1)
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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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Nov 14, 2002
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Type
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Order
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