|
|
Document
|
|
P-1190
|
|
|
|
|
|
File #
|
|
P-9500760
|
|
|
|
|
|
Institution/HIC
|
|
Ministry's position that each report in its entirety relates to a suggested course of action and qualifies for exemption under section 13(1). The five evaluation reports are not all written in the same style. Other than the
|
|
|
|
|
|
Summary
|
|
BACKGROUND:
Ontario Hydro (Hydro) operates five nuclear power plants which are licensed and regulated by
the Atomic Energy Control Board (AECB). A Peer Evaluation Program has been established by
Hydro, and evaluations are conducted on each plant every second year. The reports which are
prepared following these evaluations are used by Hydro to supplement periodic AECB reviews
which address regulatory compliance. The peer evaluation teams are made up of employees
from each of the nuclear generating plants which Hydro operates, as well as outside industry
experts.
The peer evaluations follow a process similar to the one developed in the United States by the
Institute of Nuclear Power Operations (INPO). The INPO is a non-profit collective organization
established in 1979 after the Three Mile Island nuclear incident. The INPO developed standards
of excellence against which member utilities are evaluated. Ontario Hydro adopted standards
substantially similar to those developed by the INPO to evaluate its own nuclear operations. The
standards are described in an internal Hydro publication which was recently updated and
republished.
NATURE OF THE APPEAL:
Hydro received a request under the Freedom of Information and Protection of Privacy Act (the
Act) for access to a copy of all peer evaluation reports conducted by or for Hydro. The request
was later clarified to be the most recent peer evaluation report for each of the five nuclear plants
operated by Hydro. The requester is a newspaper reporter.
Hydro responded by denying access to all responsive records on the basis of the discretionary
exemptions provided by section 13(1) (advice to government) and sections 18(1)(c), (e), (f) and
(g) (economic interests of an institution) of the Act.
The requester (now the appellant) appealed Hydro’s decision. In his letter of appeal, the
appellant raised the possible application of section 23 of the Act, the so-called “public interest
override”.
The records at issue are draft or final evaluation reports on the following nuclear generating
plants: Bruce A (1995 first draft report); Bruce B (1994 final report); Pickering A/B (1992 final
report); Pickering B (1995 first draft report); and Darlington (1994 final report). According to
Hydro, reports remain in draft form until a response has been made by Hydro management.
Mediation was not possible and a Notice of Inquiry was sent to the appellant and Hydro.
Representations were received from Hydro only.
In its representations, Hydro withdrew its exemption claims under sections 18(1)(e) and (f).
Therefore, section 13(1) and sections 18(1)(c) and (g) of the Act are the only exemptions which
remain at issue in this appeal.
DISCUSSION:
ADVICE TO GOVERNMENT
- 2 -
[IPC Order P-1190/May 27, 1996]
Section 13(1) of the Act states:
A head may refuse to disclose a record where the disclosure would reveal advice or
recommendations of a public servant, any other person employed in the service of an
institution or a consultant retained by an institution.
It was established in Order 118, and followed in many subsequent orders, that advice and
recommendations for the purpose of section 13(1) must contain more than just information. To
qualify as “advice” or “recommendations”, the information contained in the records must relate
to a suggested course of action, which will ultimately be accepted or rejected by its recipient
during the deliberative process. Information that would permit the drawing of accurate
inferences as to the nature of the actual advice or recommendations given also qualifies for
exemption under section 13(1) of the Act.
In its representations, Hydro states that the peer evaluation reports reflect the findings of the
evaluation team relative to published performance objectives. According to Hydro, the format of
the reports follows the industry protocol, namely that findings are taken as being
recommendations for improvements. After receiving these findings, management develops and
implements corrective actions to address the issues. Hydro argues that the peer evaluation
reports are always to be viewed as recommendations regarding suggested courses of action to
improve the safety of nuclear facilities.
In my view, some parts of the evaluation reports contain what can accurately be characterized as
"background information" in the context of section 13(1): a description of the purpose and scope
of the review; how the review was conducted; and areas of accomplishment. Other parts include
“factual” information which is distinct from any identified recommendations or action plans.
Accordingly, I do not accept the Ministry's position that each report in its entirety relates to a
suggested course of action and qualifies for exemption under section 13(1).
The five evaluation reports are not all written in the same style. Other than the background and
factual information I have identified above, three of the reports identify areas for improvement,
recommendations and action plans for implementing the recommendations. I find that this
information does meet the requirements of section 13(1).
The other two reports outline findings in response to particular performance objectives. Although
it is not clear from the face of these reports that any course of action outlined under these finding
has been recommended, I am prepared to accept Hydro’s submission that recommendations can
be inferred from the nature of the peer evaluation process, and I find that the portions of the
reports containing this information satisfy the requirements of section 13(1).
Although I have found that the requirements of section 13(1) have been established with respect
of portions of the records, I must now consider the potential application of section 13(2),
specifically section 13(2)(f), which states:
Despite subsection (1), a head shall not refuse under subsection (1) to disclose a
record that contains,
- 3 -
[IPC Order P-1190/May 27, 1996]
a report or study on the performance or efficiency of an institution,
whether the report or study is of a general nature or is in respect of
a particular program or policy;
Section 13(2)(f) is unusual in the context of the Act in that it constitutes a mandatory exception
to the application of an exemption for discrete types of documents, namely reports on
institutional performance or efficiency. Even if a report contains advice or recommendations for
the purposes of section 13(1), an institution must disclose the entire document if the report falls
under section 13(2)(f) (Orders P-726 and P-763).
Previous orders of this office have interpreted section 13(2)(f) to apply to reports and studies
which focus on one or more discrete program areas within an institution, rather than the
institution as a whole (Orders P-348, P-603 and P-658). This interpretation is consistent with the
general principle of providing requesters with a general right of access to government
information, and accords with the plain meaning of the exception. I therefore adopt this
interpretation for the purposes of this appeal.
Although section 13(2) was identified in the Notice of Inquiry, Hydro did not make specific
representations on this section.
Hydro does state that it adopted standards to evaluate its nuclear operations, which are described
in an internal Hydro report entitled “Ontario Hydro’s Nuclear Performance Objectives and
Criteria for Operating Nuclear Power Plants”. This report was recently updated and re-published
in February 1996. Hydro points out in its representations that the peer evaluation reports which
are at issue in this appeal are evaluations conducted relative to these performance objectives.
Having reviewed the five records at issue in this appeal, I find that they are clearly reports. They
are identified as such, and they consist of formal statements or accounts of the results of the
collation and consideration of information. Furthermore, each record involves the study of a
number of issues and concerns relating to management and maintenance of one of Hydro’s
nuclear power plants.
Further, I find that the peer evaluation reports relate specifically to the performance of nuclear
facilities operated by Hydro, and as such fall squarely within the scope of section 13(2)(f).
Because section 13(2)(f) is a mandatory exception to the section 13(1) exemption claim, Hydro
must not refuse to disclose these reports irrespective of whether all or any parts of them meet the
requirements for exemption under section 13(1).
Therefore, I find that the records are not subject to exemption under section 13(1) of the Act.
ECONOMIC AND OTHER INTERESTS OF THE INSTITUTION
Section 18(1)(c) states:
A head may refuse to disclose a record that contains,
information where the disclosure could reasonably be expected to
- 4 -
[IPC Order P-1190/May 27, 1996]
prejudice the economic interests of an institution or the
competitive position of an institution;
To establish a valid exemption claim under section 18(1)(c), Hydro must demonstrate a
reasonable expectation of prejudice to its economic interests or competitive position arising from
disclosure.
With respect to prejudice to both its economic interests and its competitive position, Hydro states
that at this time it is under considerable pressure to reduce the cost of producing power and to
open itself up to competition in power generation. It argues that unduly critical public releases
may harm two initiatives in which it is currently engaged.
Hydro describes current negotiations with potential private sector partners regarding one of its
nuclear plants, and submits that unduly critical public releases could reasonably be expected to
raise concerns with these potential partners.
Hydro also points out that it is involved in ongoing international negotiations which could lead to
a multimillion dollar contract. In Hydro’s view, because the peer evaluation reports do not
provide a balanced picture of safety at its nuclear power plants, these reports could be used by
others in the industry in an attempt to gain a competitive advantage. According to Hydro, its
United States competitors are not required to disclose comparable peer evaluation reports
prepared by the INPO.
I have intentionally been somewhat vague regarding the details of these ongoing negotiations, so
as not to disclose facts which could have an impact on these discussions. Hydro has provided me
with more detailed evidence than I have included in this order.
In my view, based on the evidence provided to me in this appeal, I find that Hydro has
established that disclosure of the evaluation reports could reasonably be expected to prejudice its
economic interest and/or competitive position with respect to its current and potential
negotiations, and I find that the five records qualify for exemption under section 18(1)(c) of the
Act.
Section 18(1)(g) states:
A head may refuse to disclose a record that contains,
information including the proposed plans, policies or projects of an
institution where the disclosure could reasonably be expected to
result in premature disclosure of a pending policy decision or
undue financial benefit or loss to a person;
In order to qualify for exemption under this section, Hydro must establish
that the records contain information including proposed plans, policies or
projects, and that disclosure could reasonably be expected to result in:
(i) premature disclosure of a pending policy decision, or
- 5 -
[IPC Order P-1190/May 27, 1996]
(ii) undue financial benefit or loss to a person.
In its representations on section 18(1)(g), Hydro refers back to statements regarding ongoing
negotiations made in support of its section 18(1)(c) exemption claim. In addition, Hydro states
that because the peer evaluation reports do not provide a balanced picture to the public, there is a
reasonable expectation that they will be used to generate negative public opinion, and result in
possible unnecessary and costly plant improvements or temporary shut downs.
In my view, Hydro has not provided evidence sufficient to establish the requirements for
exemption under section 18(1)(g). I am not convinced that the records are properly characterized
as “proposed plans, policies or projects”, and even if they are, I find that Hydro has not provided
sufficient evidence to establish a reasonable expectation that their release could result in
premature disclosure of a pending policy decision or in undue financial loss to Hydro or benefit
to any other person.
Therefore, I find that the records do not qualify for exemption under section 18(1)(g) of the Act.
PUBLIC INTEREST IN DISCLOSURE
I have found that the records qualify for exemption under section 18(1)(c), and I will now
consider the possible relevance of section 23 of the Act. This section reads as follows:
An exemption from disclosure of a record under sections 13, 15,17, 18, 20 and 21
does not apply where a compelling public interest in the disclosure of the record
clearly outweighs the purpose of the exemption. (emphasis added)
There are two requirements contained in section 23 which must be satisfied in order to invoke
the application of the so-called “public interest override”: there must be a compelling public
interest in disclosure; and this compelling public interest must clearly outweigh the purpose of
the exemption.
As I have stated above, although the appellant raised the application of section 23, he did not
make any representations on this issue. This is unfortunate.
The Act is silent as to who bears the burden of proof in respect of section 23. The burden of
proof in law generally is that a person who asserts a position must establish it. However, where
the application of section 23 to a record has been raised by an appellant, it is my view that the
burden of proof cannot rest wholly on the appellant, where he or she has not had the benefit of
reviewing the requested record before making submissions in support of his or her contention
that section 23 applies. To find otherwise would be to impose an onus which could seldom, if
ever, be met by an appellant. Accordingly, I have reviewed the records with a view to
determining whether there is a compelling public interest in disclosure which clearly outweighs
the purpose of the section 18(1)(c) exemption.
Hydro submits that for the Peer Evaluation Program to be useful, its employees must be prepared
to provide full and open input to the review team, and the team in turn must be frank and direct
in its report. Hydro expresses concern that disclosure of the peer evaluation reports would result
- 6 -
[IPC Order P-1190/May 27, 1996]
in future input that is not bluntly critical, thereby diminishing the significance and undermining
the usefulness of the evaluations in ensuring the highest standards of safety and reliability at the
nuclear plants.
Hydro also makes reference to the case of Rubin v. Canada (Minister of Transport) (December
21, 1995), Doc. T-891-93, T-2187-93 (Fed. T.D.), where the court upheld the government’s
decision to deny access to records relating to a post-accident review of the operation of an
airline. It is important to note that, unlike the Rubin case, in the appeal before me, Hydro has not
submitted any evidence to indicate that the Peer Evaluation Program would be cancelled if the
confidentiality of the records is not maintained.
Hydro submits that the safe operation of nuclear stations is assured through the regulatory and
licencing process overseen by AECB. In Hydro’s view:
The peer evaluation program is a management tool that evaluates plant operations
against the best standards in the industry and works to assure a standard of
excellence for safety and reliability that is in the best interests of Ontario Hydro,
its employees and the public at large.
In explaining the rationale behind the adoption of the INPO program (which led to the creation
of Hydro’s Peer Evaluation Program), Hydro makes the following statement:
Nuclear disasters, regardless of whether or not there is harm to the environment
and/or to the public were seen to have a negative effect on the public. It was
determined that nuclear incidents, even minor incidents, must not be allowed to
occur; INPO therefore developed the standards of excellence against which the
member utilities would be evaluated.
It is clear that public concerns regarding the safety of nuclear facilities was the impetus behind
the creation of Hydro’s Peer Evaluation Program. In my view, it is not possible to allay these
concerns by merely advising the public that reviews of nuclear operations are conducted against
the highest possible standards. This simply does not provide enough information for the public
to assess the adequacy of the program in meeting its objectives. I am unable to accept Hydro’s
position that the results of the Peer Evaluation Program should not be disclosed to the very
public whose concerns about nuclear safety the Program was designed to allay.
As far as Hydro’s submissions about confidentiality and the openness of its employees are
concerned, in my view, it is in the interests of both Hydro and the public to ensure that Hydro
continues to receive frank and open input and to report on nuclear safety issues in the most
fulsome manner possible. This enables Hydro to represent itself in its commercial ventures as
operating nuclear plants as closely as possible to the highest standards of excellence.
Commissioner Tom Wright discussed the issue of nuclear safety and section 23 in Order P-270.
This appeal involved a request for agendas and minutes of the Senior Ontario Hydro/Atomic
Energy of Canada Limited Technical Information Committee (SOATIC), which were denied by
Hydro under section 17(1) of the Act. In considering whether there was a compelling public
interest in disclosure of nuclear safety related information, he stated:
- 7 -
[IPC Order P-1190/May 27, 1996]
In my view, there is a need for all members of the public to know that any safety
issues related to the use of nuclear energy which may exist are being properly
addressed by the institution [Hydro] and others involved in the nuclear industry.
This is in no way to suggest that the institution is not properly carrying out its
mandate in this area. In this appeal, disclosure of the information could have the
effect of providing assurances to the public that the institution and others are
aware of safety related issues and that action is being taken. In the case of nuclear
energy, perhaps unlike any other area, the potential consequences of inaction are
enormous.
I believe that the institution, with the assistance and participation of others, has
been entrusted with the task of protecting the safety of all members of the public.
Accordingly, certain information, almost by its very nature, should generally be
publicly available.
In view of the above, it is my opinion that there is a compelling public interest in
the disclosure of nuclear safety related information.
I agree with Commissioner Wright’s comments, and find that there is a compelling public
interest in disclosure of records concerning nuclear safety. The question which remains is
whether this compelling public interest is sufficient to clearly outweigh the purpose of the
section 18(1)(c) exemption.
In my view, the purpose of section 18(1)(c) is to protect the ability of institutions such as Hydro
to earn money in the market-place. This exemption recognizes that institutions sometimes have
economic interests and compete for business with other public or private sector entities, and it
provides discretion to refuse disclosure of information on the basis of a reasonable expectation of
prejudice to these economic interests or competitive positions.
Although, it was not necessary for Commissioner Wright to make a finding under section 23 in
Order 270, because he did not uphold the exemption claim under section 17(1), he stated his
view that the public interest in disclosure of the information contained in the records at issue in
that appeal would be sufficiently compelling as to clearly outweigh the purposes of section 17(1)
of the Act.
Former Assistant Commissioner Irwin Glasberg dealt with the issue of nuclear safety in Order
P-901, which also involved Hydro. In that case, he found that records prepared by a working
group involved in nuclear emergency planning qualified for exemption under section 12 of the
Act (Cabinet records), which is not subject to the section 23 public interest override. However,
he went on to state that:
Were it not for the fact that the records at issue are subject to the Cabinet records
exemption, I would have had no hesitation in finding that there exists a
compelling public interest in the disclosure of these documents which clearly
outweighs the purposes of the exemptions found in the Act.
(See also Order P-956).
- 8 -
[IPC Order P-1190/May 27, 1996]
|
|
|
|
|
|
Legislation
|
|
|
|
|
|
|
|
Signed by
|
|
Tom Mitchinson
|
|
|
|
|
|
Published
|
|
May 27, 1996
|
|
|
|
|
|
Type
|
|
Order
|
|
|
|
|
|
Judicial Review
|
|
Institution's application dismissed December 3, 1996
Institution's motion for leave to appeal refused February 24, 1997
Ontario Hydro v. Ontario (Information and Privacy Commissioner), [1996} O.J. No. 4636 (Div. Ct.), leave to appeal refused [1997] O.J. No. 694 (C.A.)
Court of Appeal Decision
Divisional Court Decision
Divisional Court Decision - Strike
|
|
|
|
|
|
<<
Back
|
|
|