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Document
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P-41
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File #
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Appeal 880131
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Institution/HIC
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Ministry of Tourism and Recreation
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Summary
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O R D E R This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act, 1987 , (the " Act ") which gives a person who has made a request for access to a record under subsection 24(1) of the Act , a right to appeal any decision of a head to the Commissioner. The facts of this case and the procedures employed in making this Order are as follows: 1. On March 23, 1988, the requester filed a written request to the Ministry of Tourism and Recreation (the "institution"), which administers the NOR-DEV programme, for "a copy of the 1985/86 NORDEV funded St. Mary's Riverboat Study." 2. On April 19, 1988, the institution advised the requester in writing that: "I regret that I am unable to provide you with a copy of the St. Mary's Riverboat Study. The proponents of this study are actively pursuing the development of this project. In accordance with section 17(1) of the Freedom of Information and Protection of Privacy Act , disclosure of the study findings at this time 'would prejudice the developers' competitive position'." 3. By letter dated May 13, 1988, the requester appealed the head's decision to refuse access to the study. 4. During the mediation stage of the appeal, the institution indicated it was relying on subsections 17(1)(a)(b) and (c) and 18(1)(d) of the Act in denying the appellant access to the record. 5. On August 25, 1988, I wrote to the appellant, the institution and certain affected persons (the proponents of the study), advising them that I was conducting an inquiry to review the decision of the head. An Appeals Officer's Report accompanied this notice. 6. By letter dated September 7, 1988, I invited the parties and the affected persons to make written representations on the issues arising in the appeal. 7. Written representations were received from the appellant and the institution, but not from the affected persons. I have considered these representations in making my Order. It should be noted, at the outset, that the purposes of the Act as set out in subsections 1 (a) and (b) are: (a) to provide a right of access to information under the control of institutions in accordance with the principles that, (i) information should be available to the public, (ii) necessary exemptions from the right of access should be limited and specific, and, ... (b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information. Further, section 53 of the Act provides that the burden of proof that the record falls within one of the specified exemptions in this Act lies upon the head. The issues arising in this appeal are as follows: A. Whether the record at issue in this appeal is in the custody or under the control of the institution as required by subsection 10(1) of the Act . B. If the answer to Issue A is in the affirmative, whether any parts of the record are exempt from release pursuant to subsections 17(1)(a)(b) or (c) of the Act . C. If the answer to Issue B is in the negative, whether the record is subject to the discretionary exemption provided by subsection 18(1)(d) of the Act . ISSUE A : Whether the record at issue in this appeal is in the custody or under the control of the institution as required by subsection 10(1) of the Act . Subsection 10(1) of the Act reads as follows: Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless the record or the part of the record falls within one of the exemptions under sections 12 to 22. (emphasis added) NOR-DEV is a program established by the Ministry of Northern Development and Mines. It consists of a Tourism Development Program which itself contains a Preliminary and Feasibility Studies Subprogram. The Ministry of Tourism and Recreation (the "institution") administers this Planning and Feasibility Studies Subprogram. A government brochure provided to me by the institution identifies the purpose of the Subprogram as providing assistance for feasibility and planning studies which will stimulate investment in tourism projects having potential regional significance. The brochure sets out that "...funding under the Subprogram will be in the form of financial contribution towards planning studies and the assessment of investment opportunities." The institution submits that "...because of the joint financial contribution to the cost of the study and the agreement between the institution and third parties, the study was not a record within the custody or control of the Institution as anticipated by section 10(1) and the Act does not apply." The aforementioned brochure sets out the status of studies such as the one that forms the record in this appeal. On page 21, the brochure states: 3. All reports produced by consultants shall become the property of the Province of Ontario. In those cases where the study produces information of a confidential nature, the Ministry of Northern Development and Mines may hold back such confidentialities for such time as it deems appropriate. On page 22 in dealing with the manner of payment, the brochure concludes as follows: A holdback from the final payment shall be retained until the final study report of the consultant has been accepted by the Ministry of Northern Development and Mines. As far as the St. Mary's Riverboat Study is concerned, I have reviewed the contents of an agreement, dated November 18, 1985, between one of the third party proponents and the Province of Ontario, which sets out the procedure for producing this study. Appendix "A" to this agreement lists supplementary terms and conditions including the following: 5. Simultaneously with the completion of the feasibility study and delivery to the Tourism Developer [the third party proponents], the Tourism Developer shall cause six (6) copies of the feasibility study to be delivered to Ontario. Appendix "B" to this same agreement sets out "Standard Terms and Conditions". Among them,
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Legislation
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FIPPA
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10(1) custody or control
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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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Sidney Linden
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Published
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Mar 02, 1989
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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