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Document
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PO-2072-F
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File #
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PA-990381-1
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Institution/HIC
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Ontario Hydro
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Summary
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NATURE OF THE APPEAL: This is my final order with respect to the outstanding issues from Interim Order PO-1927-I and Interim Order PO-2014-I. BACKGROUND: Ontario Hydro (now Ontario Power Generation Inc.) received a request in 1999 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". For simplicity, I will refer to Ontario Hydro and Ontario Power Generation Inc. interchangeably as "Hydro". Hydro identified a large number of responsive records and, after notifying a number of parties whose interests might be affected by disclosure of the records, 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 a number of exemptions in the Act . The requester (now the appellant) appealed Hydro's decision, and also raised the possible application of the "public interest override" contained in section 23 of the Act . As well, one of the affected parties took the position that the Act had no application to certain records on the basis that, as a constitutional matter, the Parliament of Canada, not the Government of Ontario, has exclusive jurisdiction over matters relating to atomic energy. The appeal proceeded to the adjudication stage. I sent a Notice of Inquiry to the appellant, Hydro and a number of affected parties, asking for representations on the constitutional issue, as well as on most of the substantive issues that remained outstanding. I decided not to seek representations on the section 17(1) exemption claim at that time, pending my determination on the constitutional issue. I then exchanged the non-confidential portions of the representations with the other parties and provided an opportunity for reply representations. Only the appellant submitted reply representations. Interim Order PO-1927-I (Order #1) Following the receipt and exchange of representations, I issued Order #1 in which I determined that: - the Act applies to the records; - many of the records qualifies for exemption under section 15(b); - under section 23 of the Act , there exists a compelling public interest in the disclosure of twenty-three records or portions of records that qualify for exemption under section 15(b). I decided to defer consideration of the second part of the section 23 test (whether the compelling public interest was sufficient to override the purpose of the section 15(b) exemption) until all of the exemption claims had been applied to the twenty-three records that met the first part of the test. After issuing Order #1, I sent a Supplementary Notice of Inquiry to the parties, inviting them to address the matters remaining at issue. I received submissions from the appellant and four affected parties. I then sent a modified Notice of Inquiry to the appellant, along with Hydro's representations and the non-confidential portions of the representations of one affected party, Atomic Energy of Canada Limited (AECL). In the Notice to the appellant I summarized the positions of the three other affected parties. The appellant did not provide representations in response. Interim Order PO-2014-I (Order #2) I then issued Order #2, in which I resolved a number of other issues in this appeal. In that order I found that certain records qualified for exemption under section 17(1) and/or 18(1)(a) of the Act . I also determined that six of the twenty-three records identified in Order #1 as possibly subject to the section 23 public interest override were in fact duplicate records. As well, I found that section 23 might apply to four additional records which qualified for exemption under section 17(1) and/or 18(1)(a) of the Act . As a result of my findings, there are 21 records or portions of records that qualify for exemption under sections 17(1), 18(1)(a) and/or 15(b) of the Act , but which might also fit within the public interest override in section 23. In its submissions in response to the Supplementary Notice of Inquiry issued after Order #1, AECL requested that I reconsider my determination that there is a compelling public interest in the disclosure of certain records under section 23. One of the reasons for that request was AECL's view that, based on security concerns, there is a public interest in the non-disclosure of the relevant records. AECL also suggested that its argument regarding a public interest in non-disclosure "applies equally to the assessment of whether the public interest in disclosure clearly outweighs the purpose …" of exemptions that apply to the records. I considered this request in Order #2. My analysis of the issue is discussed in more detail below. My conclusion in this regard appears at Order Provision 9 of Order #2, where I referred to my finding in Order #1 that there is a compelling public interest in disclosure of certain records, and stated that: … for reasons outlined in this interim order, I have decided to seek further submissions from the parties before finalizing my decision on the application of section 23 of the Act to these records. As a result, I issued a further Supplementary Notice of Inquiry to Hydro, the appellant, the affected parties whose records remained at issue, as well as the parties who received the original Notice of Inquiry in this appeal. The Supplementary Notice included reference to the impact of the events of September 11, 2001 and their aftermath, the passage of the federal Anti-terrorism Act and the introduction of other security legislation by the federal government, and recent jurisprudence on the topic of nuclear safety. I invited comment on whether there is a compelling interest in non-disclosure that would bring the public interest in disclosure below the threshold of "compelling". I received representations from the appellant and two affected parties (AECL and the federal Department of Justice), which were shared with the other parties. I then received reply representations from the appellant and AECL. RECORDS: The 21 records or parts of records that remain at issue are identified in the attached Appendix "A". DISCUSSION: PRELIMINARY ISSUE: ACCESS TO THE RECORDS AT ISSUE AND REPRESENTAIONS BY APPELLANT'S COUNSEL FOR THE PURPOSE OF ARGUMENT In his representations in response to the Supplementary Notice of Inquiry issued after Order #2, the appellant, through his counsel, requests access to the records at issue, and full access to the representations of "the respondent" for the purpose of preparing argument. The appellant submits: … [I]t is virtually imp
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Legislation
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FIPPA
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52(13)
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52(3)
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Section 23
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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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Nov 22, 2002
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Type
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Order – Final
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© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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