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Document
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P-1026
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File #
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P-9500083
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Institution/HIC
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Ontario Casino Corporation
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Summary
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BACKGROUND: On October 6, 1992, the Honourable Marilyn Churley, then Minister of Consumer and Commercial Relations (the Minister), announced the decision of the provincial government to proceed with a pilot project for the establishment of a casino in the Windsor area. The Casino Project Team was established in late summer 1992 with a mandate to provide advice and support for all activities associated with bringing casinos to Ontario. The team consisted of individuals seconded from various government ministries and reported to the Minister. On April 19, 1993, the Ministry of Consumer and Commercial Relations issued a Request for Proposal (the RFP) from the private sector calling for: (i) the financing, design and construction of the permanent casino; and (ii) the operation of the businesses to be carried out in the permanent casino. The RFP stated that the successful proponent would be expected to operate an interim casino until the permanent casino was established. The RFP also set out the selection process. A selection committee, comprised of four provincial Deputy ministers was appointed to review and evaluate the proposals received in response to the RFP. On September 20, 1993, the selection committee announced a short list of four firms. On December 2, 1993, the selection committee announced its selection of Windsor Casino Ltd. (WCL) as the proponent with whom the province would enter into exclusive negotiations to finalize agreements with respect to the permanent casino. As contemplated under the RFP, the Ontario Casino Corporation (the OCC) was established as a Crown corporation pursuant to the Ontario Casino Corporation Act, 1993 (the OCC Act ) to manage and conduct the casino business and to represent the government in negotiations with WCL. The OCC took over where the Casino Project Team left off. The OCC was included as an institution under the Freedom of Information and Protection of Privacy Act (the Act ) by virtue of Ont. Reg. 305/94. During the period of December 2, 1993 to May 14, 1994, the OCC, WCL and others negotiated the Operating Agreement for the interim casino. The Interim Operating Agreement was ultimately executed, and the interim casino opened on May 14, 1994. Negotiations with WCL in respect of agreements relating to the construction, financing, development and operation of the permanent casino have not been completed. On May 24, 1994, the Interim Operating Agreement, together with background information on the opening costs of the Interim Operating Agreement and a "Summary of Certain Principal Terms of the Interim Casino Operating Agreement" were made public at a press conference in Windsor, Ontario. NATURE OF THE APPEAL: The OCC received a request under the Act for access to the following information: ... all records that would allow me to determine how the province negotiated an operating agreement with Windsor Casino Ltd. for the casino in Windsor and all records that would allow me to determine what the operating agreement includes. The records being sought include a copy of the operating agreement and all related records, including correspondence between parties involved, electronic records or machine readable records, all indexes, abstracts and inter-departmental records identifiable with my request, even though reports on those records may have been sent to other offices or departments and there may be duplication between files. The requester identified himself as a reporter, indicated that he believed access to the records was in the public interest and that he intended to disseminate the information he received for the public benefit. The OCC identified a number of responsive records and denied access to them in their entirety under the following exemptions in the Act : third party information - section 17(1) economic and other interests - sections 18(1)(c), (d) and (e) solicitor-client privilege - section 19 The OCC also maintained that certain portions of these documents were not responsive to the request. The requester appealed the denial of access. He advised the OCC that, as he had now obtained a copy of the Interim Operating Agreement between the OCC and WCL, he was no longer seeking access to this document. He confirmed that he still sought access to all other related records that would allow him to determine how the agreement was negotiated, including those which the OCC had identified as non-responsive. A Notice of Inquiry was sent to the OCC, the appellant, WCL and another party with an interest in some of the records (the affected party). Representations were received from the appellant, the OCC, WCL and the affected party. All the parties, with the exception of the appellant, were represented by counsel during the inquiry. In addition, the submissions of the OCC include an affidavit from the President of the OCC. The records at issue and the exemptions claimed for each are set out in Appendix A to this order. The records may be generally described as transaction outlines for the interim casino, drafts of the Pre-Opening and Interim Operating Agreement, various "issues" lists and memoranda, other correspondence and memoranda to the OCC (or its predecessor, the Ontario Casino Project) from its legal counsel, and correspondence between counsel for the OCC and counsel for the WCL. The OCC has been unable to locate some of the enclosures to the records at issue. The appellant has indicated that he is not pursuing the issue of the reasonableness of the search conducted by the OCC to locate these documents. In addition to the exemptions claimed by the OCC, WCL claims that section 17(1) should apply to all or portions of Records 13, 14, 15, 21, 24, 39, 41, 43 and 49. As this is a mandatory exemption, I will consider its application to these additional records where appropriate. DISCUSSION: PRELIMINARY ISSUE THE RESPONSIVENESS OF PORTIONS OF RECORDS 3, 7, 22, 23, 47, 51 AND 52 I canvassed the issue of responsiveness of records in detail in Order P-880. That order dealt with a re-determination regarding this issue which resulted from the decision of the Divisional Court in Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3d) 197. In that case, the Divisional Court characterized the issue of the responsiveness of a record to a request as one of releva
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Legislation
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FIPPA
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17(1)(a), (b) & (c)
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18(1)(c)
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Section 19
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Section 23
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Subject Index
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Signed by
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Anita Fineberg
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Published
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Oct 16, 1995
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Type
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Order
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