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Document
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P-76
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File #
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Appeal 880105
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Institution/HIC
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Ministry of Agriculture and Food
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Summary
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O R D E R This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act, 1987 (the " Act ") which gives a person who has made a request for access to a record under subsection 24(1) of the Act a right to appeal any decision of a head under the Act to the Commissioner. The facts of this case and the procedures employed in making this Order are as follows: 1. On April 7, 1988, the Ministry of Agriculture and Food (the "institution") received a request for access to a "list showing names and addresses of Ontario dairy producers". 2. By letter dated May 2, 1988, the institution denied the request under section 21 of the Act . In later communications, the institution specified subsections 21(2)(e), 21(2)(f), 21(2)(h), and 21(3)(d) as applicable to the record, and also raised subsections 17(1)(a) and 17(1)(c) as providing exemption from disclosure. 3. On May 4, 1988, the requester appealed the decision of the institution. I gave notice of the appeal to the institution, as provided for in the Act . 4. Between May 4, 1988 and October 25, 1988, investigations were made by an Appeals Officer with a view to settlement, but in the circumstances of this appeal no settlement could be reached. 5. During the course of the above-noted investigations, I sent notice to the Ontario Milk Marketing Board (the "Board") to advise them of the appeal, pursuant to subsection 50(3) of the Act . 6. On October 25, 1988, I sent notice that I was conducting an inquiry to review the institution's decision to the institution, the Board and the appellant. 7. On November 8, 1988, I invited the parties to submit written representations concerning this appeal. 8. Written representations were received from the institution and the Board, and further clarification of those representations was also received. The appellant chose to rely on written representations which he had submitted at the time the appeal was commenced. I have considered all representations in making my order. The purposes of the Act as set out in section 1 should be noted at the outset. Subsection 1(a) provides a right of access to information under the control of institutions in accordance with the principles that information should be available to the public and that necessary exemptions from the right of access should be limited and specific. Subsection 1(b) sets out the counter-balancing privacy protection purpose of the Act . The subsection provides that the Act should protect the privacy of individuals with respect to personal information about themselves held by institutions and should therefore provide individuals with a right of access to that information. Further, section 53 of the Act provides that the burden of proof that the record falls within one of the specified exemptions in this Act lies with the head of the institution (the "head"). In this case, the burden of proving the applicability of the section 17 exemption lies with both the head and the affected persons as they are the ones resisting disclosure. The issues arising in this appeal are as follows: A. Whether the requested information is subject to exemption from disclosure under subsection 17(1) of the Act . B. Whether the requested information qualifies as "personal information" within the meaning of subsection 2(1) of the Act . C. If the answer to Issue "B" is in the affirmative, whether the disclosure of the requested information is contrary to the provisions of section 21 of the Act . ISSUE A : Whether the requested information is subject to exemption from disclosure under section 17 of the Act . Subsection 17(1) of the Act reads as follows: 17.--(1) 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; or (c) result in undue loss or gain to any person, group, committee or financial institution or agency. As I outlined in Order 36 (Appeal Number 880030), records must meet a three-part test in order to fall within the section 17 exemption: 1. the records must contain third party information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and 2. the information must have been supplied by the third party to the institution in confidence, either implicitly or explicitly; and 3. the prospect of disclosure of the records must give rise to a reasonable expectation that one of the types of injuries specified in (a), (b) or (c) of subsection 17(1) will occur. Failure to satisfy the requirements of any part of this test will render the section 17 exemption claim invalid. The appellant has made no submissions concerning the possible application of section 17. Both the institution and the Board have submitted arguments with respect to possible section 17 exemption, and I shall deal with these submissions in the context of the three-part test as outlined above. Test - Part 1 : Both the institution and the Board, in their submissions, argued that the record is "commercial" information within the meaning of subsection 17(1). The Board is an independent corporation, owned and operated by its members. Under regulation, the Board has the power to carry on business or "commercial" activities and, in fact, does so. The institution and the Board have indicated in their submissions that the "list showing names and addresses of Ontario dairy producers" (the record at issue in this appeal) is a valuable asset with respect to one of the Board's commercial activities. That activity is the sale of advertising space in a magazine distributed by the Board to
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Legislation
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FIPPA
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17(1)(a), (b) & (c)
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17(1)
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Subject Index
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Signed by
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Sidney Linden
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Published
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Jul 17, 1989
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Type
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Order
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