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P-1231

Document		P-1231


File #		P-9500399


Institution/HIC		Ontario Hydro


Summary		BACKGROUND: Atomic Energy of Canada Limited (AECL) appointed a Technical Advisory Committee (TAC) to assist it in developing an environmental impact statement (the impact statement) on the "Concept for Disposal of Canada's Nuclear Fuel Waste". The impact statement was finalized and presented to the Canadian Environmental Assessment Agency (CEAA) in 1994, at which time it was also made available to the public. CEAA is currently holding public hearings on the issues surrounding the disposal of nuclear fuel waste. The TAC was comprised largely of national experts from the university community who were asked to provide advice on the underground disposal of spent nuclear fuel. It held a number of meetings to discuss the content of the impact statement while it was under development. Communications took place between employees of Ontario Hydro (Hydro) and employees of AECL in the context of these TAC meetings. NATURE OF THE APPEAL: The appellant, an organization with an interest in nuclear issues, requested access to information from Hydro under the Freedom of Information and Protection of Privacy Act (the Act ). Specifically, the appellant requested copies of all correspondence from a named employee in Hydro's Radioactive Materials Management section of the Nuclear Engineering Department to a named employee of AECL during a specific time period. The appellant has intervenor status at the public hearings currently being conducted by CEAA. Hydro identified 14 responsive records which dealt with communications between Hydro and AECL in the context of the TAC meetings referred to above. After receiving input from AECL pursuant to section 28 of the Act , Hydro decided to provide the appellant with access to ten records in their entirety and partial access to one other record. Hydro denied access to Records 1, 6 and 8, and to the remaining portions of Record 4, based on one or more of the following exemptions: advice to government - section 13(1) relations with other governments - section 15(c) third party information - sections 17(1)(a) and (c) economic and other interests of Ontario - sections 18(1)(e) and (g) AECL did not appeal Hydro's decision regarding access, and the ten records and one partial record were disclosed. The appellant appealed Hydro's decision, and also raised the possible application of the so-called "public interest override" (section 23). This office sent a Notice of Inquiry to the appellant, AECL and Hydro. Representations were received from the appellant and Hydro. AECL advised this office that it chose not to make representations in this appeal. However, AECL expressed its view that the Act is not constitutionally applicable to records containing information relating to atomic energy and nuclear power facilities, and that its decision not to participate in this appeal should not be considered as a waiver of its rights to object to disclosure under the Act on this constitutional basis in future appeals. In its representations, Hydro states that Records 1, 6 and 8 have now been disclosed to the appellant. Therefore, these records and the exemption claims associated with them (sections 13(1) and 15(c)) are no longer at issue. The only information which remains at issue is a three-page appendix (the Appendix), dated March 10, 1992, which is attached to Record 4. The two-page covering letter has already been disclosed. The Appendix was prepared by a Hydro employee, and contains comments relating to the drafting of the impact statement. Hydro claims sections 17(1)(a) and (c), and 18(1)(e) and (g) to exempt the Appendix. DISCUSSION: THIRD PARTY INFORMATION Sections 17(1)(a), (b) and (c) of the Act read as follows: A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to, (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; (b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied. (c) result in undue loss or gain to any person, group, committee or financial institution or agency. Hydro must provide sufficient evidence to establish that the Appendix contains the requisite type of information, was supplied to it in confidence, and that one or more of the harms in sections 17(1)(a), (b) or (c) could reasonably be expected to occur upon disclosure of the Appendix. All three of these elements must be satisfied before the exemption can apply. Type of Information Hydro states that the entire Appendix contains scientific and labour relations information. Hydro's representations include nothing to support its position regarding "labour relations". Having reviewed the record, I find that it does not contain information concerning the collective relationship between an employer and its employees, and therefore does not constitute "labour relations information" (Order P-653). Hydro does not draw any distinctions among the various parts of the Appendix. In my view, paragraphs numbered 1, 2 and 3 on page 1 and the last two sentences of the first full paragraph on page 2 contain scientific and technical information. The rest of the Appendix does not contain any of the types of information listed in section 17(1). Therefore, only the specific parts of the Appendix identified in this paragraph of my order satisfy the first element of this exemption claim. Supplied in Confidence Hydro must show that the information was supplied to Hydro by AECL, either implicitly or explicitly in confidence . Supplied Hydro submits that, although the Appendix was created by Hydro, disclosure would reveal information supplied to Hydro by AECL. A number of previous orders have established that information contained in a record


Legislation		FIPPA 17(1)(a), (b) & (c) 18(1)(e) 18(1)(g)


Subject Index		accurate inferences Nuclear Waste scientific technical


Signed by		Tom Mitchinson


Published		Jul 17, 1996


Type		Order


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