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Summary
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NATURE OF THE APPEAL: Ontario Hydro (now Ontario Power Generation Inc.) (for simplicity, both referred to interchangeably as Hydro in this interim order), received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to "[a]ll documents from Jan. 1, 1995 to present on the use of plutonium/MOX as fuel at Ontario Hydro". Hydro identified a large number of responsive records. Pursuant to section 28 of the Act , Hydro notified 11 parties whose interests might be affected by disclosure of the records (the affected parties). Six affected parties consented to full disclosure of records relating to them, three consented to partial disclosure, and two objected. After considering the affected parties' responses, Hydro issued its decision to the requester. Hydro provided full access to 78 records totalling approximately 300 pages, and denied access to the remaining records, in whole or in part, on the basis of the following exemptions: sections 15(a) and (b) - relations with other governments sections 17(1)(a), (b) and (c) - third party information sections 18(1)(a), (c) and (d) - economic and other interests of Ontario Hydro provided the requester with an Index of Documents describing the records and identifying the exemptions claimed for each record. Hydro also charged the requester a fee of $1,680 for searching, photocopying and preparing the records for disclosure. The requester (now the appellant) appealed Hydro's decisions regarding access and fees, and also raised the possible application of the "public interest override" contained in section 23 of the Act . During mediation of the appeal, several events occurred as follows: • Records 12, 14, 27, 75 and 120 were identified as duplicates of Records 13, 15, 30, 77 and 121. The appellant agreed not to pursue access to any duplicates, so Records 13, 15, 30, 77 and 121 were removed from the scope of the appeal. • Hydro's Index of Documents identified some other records as being duplicates. However, these records contain additional information, such as handwritten notations, and these records continue to be at issue in the appeal. • The appellant indicated that he does not want access to any foreign language records, so any records not written in English are no longer at issue. • Hydro reconsidered its position with respect to Records 89, 109, 193 and 194 and disclosed them to the appellant. • Hydro clarified that Record 46 was inadvertently left off the Index of Documents, and advised that access to this record was denied on the basis of sections 15(a) and (b), 17(1)(a), (b) and (c), and sections 18(1)(a), (c) and (d) of the Act . • Hydro explained how the fee for 53 hours of search time was calculated. The appellant was not satisfied with the explanation and Hydro 's fee remains at issue. • In responding to Hydro's section 28 notice, Atomic Energy of Canada Limited (AECL), one of the affected parties, took the position that the Act has no application to certain records. Specifically, AECL stated: ... As a constitutional matter, the Parliament of Canada has exclusive jurisdiction over matters relating to atomic energy, nuclear facilities, and nuclear substances, as declared in s. 18 of Canada's Atomic Energy Control Act and confirmed by the Supreme Court of Canada in Ontario Hydro v. Ontario (Labour Relations Board) (1993) 107 D.L.R. (4 th ) 457. The information contained in the records identified by [Hydro] as responsive to the above FOI request and forwarded to AECL for comment clearly relates to atomic energy, and accordingly the [ Act ] has no application to it and cannot be used to justify its release. The Government of Canada, not the Government of Ontario, has the exclusive jurisdiction to regulate and control the disclosure of such information. The appeal proceeded to the adjudication stage. I sent a Notice of Inquiry to the appellant and Hydro , asking for representations on the constitutional issue raised by AECL, as well as most of the substantive issues that remained outstanding. I also sent the Notice to AECL, the Canadian Nuclear Safety Commission, the Canadian Department of Foreign Affairs and International Trade (CDFAIT), the Attorney General for Canada and the Attorney General for Ontario, asking these parties to provide representations on the constitutional issue. Because the Ontario Hydro case cited by AECL also refers to the "peace order and good government" clause of Canada's constitution as a source of Parliament's exclusive jurisdiction in matters relating to atomic energy, I also sought representations on this aspect of the constitutional issue. I attached a Notice of Constitutional Question to the Notice of Inquiry, pursuant to section 109 of the Courts of Justice Act . I decided not to seek representations on the section 17(1) exemption claim at that time, pending my determination on the constitutional issue. The appellant submitted representations on all substantive and constitutional issues raised in the Notice. Hydro provided representations on most of the substantive issues, but not on the constitutional issues. Hydro also identified 15 records for which it specifically declined to make representations on the application of section 15. None of the other parties provided representations on the constitutional issue, including AECL, the party that initially raised it. I then exchanged the non-confidential portions of the representations among the parties, and invited representations in response. One of the 15 records identified by Hydro in its representations (Record 135) was provided to the appellant as an attachment to the representations, and is no longer at issue in this appeal. The appellant was the only party to submit additional representations. THE RECORDS: There are approximately 200 records that remain at issue in this appeal, totalling almost 1300 pages. The records include letters, notes, e-mail messages, minutes, reports, briefing documents, agendas, memoranda, proposals, and other documents relating to the use of plutonium/MOX fuel in nuclear reactors. Hydro explains the context in which these records were created or came into its custody or control. In 1993-94, the U.S. National Academy of Sciences initiated a study to identify ways to dispose of Russian weapons-grade plutonium that would meet international standards. One identified option was the possible use of plutonium in CANDU reactors. In pursing this option, the U.S. Department of Energy commissioned AECL to undertake studies and tests to ascertain the feasibility of using MOX fuel containing weapons-grade plutonium in CANDU reactors. AECL established study groups to review and study various aspects of this option, and these bodies held meetings between 1995 and 1998. The Canadian Government, Hydro, other foreign countries, and a number of private companies were represented on these study groups. The records at issue in this appeal are various documents that were either created by Hydro or otherwise came into the custody or control of Hydro in the context of its participation in this multi-national project. For ease of reference, the records can be broadly classified as follows: CATEGORY A Records specifically involving AECL (or an AECL subsid
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