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PO-1887-I

Institution/HIC		Ontario Realty Corporation


Summary		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 access to "any and all records from July 1, 1995 to [the date of the request] pertaining to the sale of approximately 33 acres of land behind the Ernest C. Drury School" located in the Town of Milton. The requester also asked for any directives or memoranda declaring the land surplus. The ORC identified 88 responsive records and, following third party notification, granted partial access to the requester. Access to the undisclosed records or portions of records was denied on the basis of one or more of the following exemption claims contained in the Act : section 13(1) - advice or recommendations sections 17(1)(a), (b) and (c) - third party information sections 18(1)(c), (d) and (e) - economic and other interests of the institution section 19 - solicitor-client privilege section 21(1) - invasion of privacy Portions of two records were also considered not to be responsive to the request. Along with its decision, the ORC provided the requester with two indices describing the records and identifying the exemptions claimed for each record. The requester (now the appellant) appealed the ORC's decision. During mediation, a number of things transpired: The appellant agreed not to pursue access to any information covered by the section 21 exemption claim. The appellant accepted that portions of two records were not responsive to his request. The appellant raised the possible application of the public interest override contained in section 23 of the Act . The appellant questioned whether the searches conducted by the ORC for records responsive to his request were adequate. Because Record 2B might contain the appellant's personal information, section 49(a) was added to the scope of the appeal. Mediation was not successful in resolving the appeal, so the matter moved to the adjudication stage. I sent a Notice of Inquiry initially to the ORC and to two parties whose interests may be affected by this appeal (the affected parties). The ORC and one affected party submitted representations in response. In its representations, the ORC withdrew the section 19 claim with respect to a number of records, on the basis that solicitor-client privilege had been waived through disclosure of these records to the prospective purchaser's lawyer during the course of an Ontario Municipal Board (OMB) hearing involving the property. However, the ORC maintained that the exemptions in sections 13(1), 17(1) and/or 18(1) applied to some of these records. Sections 13(1) and 18(1) are discretionary exemptions and, because they were raised for the first time at this stage of the appeal, the issue of the late raising of discretionary exemptions was added to the scope of the inquiry. Because section 17(1) is a mandatory exemption, I must consider the possible application of section 17(1) to these additional records. I then sent a modified Notice of Inquiry to the appellant, along with the representations of the ORC and the one affected party. The appellant provided me with representations in response. Status of the sale of the property The representations of all parties make reference to the status of the sale of the Ernest C. Drury School property. A significant portion of the representations provided by the ORC and the affected party (who is the prospective purchaser of the property) refer to the possible harm and potential prejudice to their interests if the records are disclosed before the purchase and sale of the property is completed. These parties also both refer to the OMB hearing involving the property, which was recently concluded, and the impact the OMB's decision has on the status of the property sale. The appellant's representations also refer to the impact of the OMB decision. In the appellant's view, because the OMB gave conditional approval to the sale of the property, the harms associated with the sale not proceeding, and the resulting requirement for the ORC to re-market the property, are no longer valid. Based on the information provided to me, it would appear that the OMB gave conditional approval to the sale but I have no evidence that the actual sale of the property has taken place. I will review the representations of the parties and make my decisions on that basis. RECORDS: The records remaining at issue consist of letters, memoranda, e-mail messages, agreements, reports, studies and other records relating to the proposed purchase and sale of the property. They are described in the ORC's two indices entitled: (1) Index of Records - ORC; and (2) Index of Records - Legal Services Branch. Some records are duplicates of others. Specifically, Records 24B, 32B and 33B are duplicates of Records 8A, 15A and 16A; and Record 17A is a duplicate of Record 35B, although 35B contains an additional cover page. Records 24B, 32B, 33B and 17A will be treated in the same manner as their duplicates, and I will not discuss them separately in this order. The section 19 exemption claim was withdrawn by the ORC for Records 15A and 35B. No other exemptions were claimed for certain portions of these records, specifically all parts of Record 15A with the exception of numbered paragraphs 1 through 15, and the two cover pages plus pages 1 and 2 of Record 35B. These portions of Records 15A and 35B should be disclosed to the appellant. PRELIMINARY MATTER: LATE RAISING OF DISCRETIONARY EXEMPTIONS In its representations, the ORC states that: ... documents listed in the Notice of Inquiry (for which a claim for exemption under section 19 was made) are not solicitor-client privileged as they were exchanged between counsel for the ORC and counsel for the purchaser ... However records 6A, 7A, 8A, 13A, 18A, 12B, 18B, 20B, 23B, 24B and 29B are properly exempt (in whole or in part) pursuant to either sections 13, 17 (a mandatory section) or 18 because they disclose


Legislation		FIPPA Section 23 13(1) 17(1)(a) 18(1)(c)


Subject Index		Public Interest Override allowed reasonable steps to locate record


Signed by		Tom Mitchinson


Published		Apr 04, 2001


Type		Order – Interim


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