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Document
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PO-1884
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File #
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PA_000244-1
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Institution/HIC
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Ontario Realty Corporation
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Summary
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NATURE OF THE APPEAL: The Ontario Realty Corporation (the ORC) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for "... a copy of the Price Waterhouse consultant's report on ORC operations prepared, according to John Barber of The Globe and Mail (24 March), last summer". The ORC located one responsive record, and denied access to the requester on the basis that it qualified for exemption under section 13(1) of the Act (advice and recommendations). The requester (now the appellant) appealed the ORC's decision, maintaining that the record fell within the scope of section 13(2)(f) and should be disclosed. Section 13(2) lists a number of exceptions to the section 13(1) exemption which, if applicable, require disclosure of a record even if it otherwise qualifies for exemption. The appellant also raised the possible application of the public interest override contained in section 23 of the Act . Mediation was not successful, so the appeal moved to the adjudication stage. I sent a Notice of Inquiry to the ORC initially setting out the issues, and received representations in response. I then sent the Notice to the appellant along with the non-confidential portions of the ORC's representations. The appellant also provided representations. RECORDS: The record is a 24-page report by PricewaterhouseCoopers (PWC) entitled "Ontario Realty Corporation Report on Transition Planning". It is labelled as a draft and dated August 31, 1999. DISCUSSION: ADVICE OR RECOMMENDATION Section 13(1) reads: 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. A number of previous orders have established that advice or recommendations for the purpose of section 13(1) must contain more than mere 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 [Orders 118, P-348, P-363, upheld on judicial review in Ontario (Human Rights Commission) v. Ontario (Information and Privacy Commissioner) (March 25, 1994), Toronto Doc. 721/92 (Ont. Div. Ct.); Order P-883, upheld on judicial review in Ontario (Minister of Consumer and Commercial Relations) v. Ontario (Information and Privacy Commissioner) (December 21, 1995), Toronto Doc. 220/95 (Ont. Div. Ct.), leave to appeal refused [1996] O.J. No. 1838 (C.A.)]. The ORC submitted the following in support of its section 13 claim. The ORC submits that section 13 of the Act applies to exempt the Draft Report from disclosure on the basis that the disclosure of the Draft Report would reveal advice or recommendations of PWC, a consultant retained by the ORC. During a time of significant change and transition for the ORC as a whole, professional advice was required and accordingly the ORC retained PWC as their consultant. The Draft Report discloses the draft professional opinions of PWC which constitute PWC's advice and recommendations as to factors affecting the transition and how the ORC ought to conduct itself to effect the transition. The Draft Report also discloses certain work/data and analysis which form a part of the advice and recommendations. The ORC also provides affidavit evidence from the Vice-President of Facility Support Services at the ORC, who previously held the position of Acting Vice-President, Transition. She states: ... PWC was requested to "develop recommendations for how ORC can successfully achieve all of the required milestones between now and the final hand-over of (certain management contracts)". The key items to be addressed by PWC were identified at the outset in the "scope of assignment" of their work. These key items included making recommendations for a transition plan which would cover tasks associated with contractual requirements, tasks required to accomplish appropriate staffing, and tasks related to development of a communications plan as well as other key items. I accept the ORC's position on this issue. The report does in fact address the various transition issues described by the ORC, and includes a series of general and specific recommendations on various aspects of the move to externally-provided facilities management that could be accepted or rejected by the ORC during its deliberative process on this matter. Therefore, I find that portions of the record satisfy the requirements of section 13(1) of the Act . EXCEPTION TO THE ADVICE AND RECOMMENDATIONS EXEMPTION Section 13(2) of the Act sets out a number of mandatory exceptions to the exemption provided by section 13(1). Section 13(2)(f) reads: Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record that contains, 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 the exemption for a discrete type of document, namely reports on institutional performance. Even if the report or study contains advice or recommendations for the purposes of section 13(1), the ORC must still disclose the entire document if the record falls into the section 13(2)(f) category. [See Order P-726; Order P-1190, upheld on judicial review in 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.); and Order PO-1709, upheld on judicial review in Minister of Health and Long-Term Care v. David Goodis, Senior Adjudicator, and Ontario Association of Naturopathic Doctors , Toron
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Legislation
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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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Mar 21, 2001
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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