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P-777

Document		P-777


File #		P-9400152


Institution/HIC		Ministry of Citizenship


Summary		NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The requester asked the Ministry of Citizenship (the Ministry) to receive access to background materials relating to a decision to make a monetary grant to a named organization (the organization). This grant was made under the Ministry's Anti-Racism Operational Funding Program (AROFP). The Ministry identified a total of 27 records that were responsive to the request and disclosed 14 of these documents to the requester in their entirety. The Ministry denied access to the remaining 13 records, either in whole or in part, based on the following exemptions contained in the Act : third party information - section 17(1) invasion of privacy - section 21(1) The requester appealed this decision to the Commissioner's office. The appellant subsequently indicated that she would be prepared to restrict her appeal to nine of the records that were originally at issue. In addition, the appellant indicated that she had no interest in obtaining access to the personal information of other individuals contained in the records. A Notice of Inquiry was provided to the parties to the appeal including the organization which obtained the grant. Representations were received from all parties. In its submissions, the organization consented to the release of Record 20 in its entirety and to page 1 of Record 1. The Ministry should, therefore, disclose these materials to the appellant. A general description of the eight records which remain at issue in this appeal is contained in Appendix "A" which is attached to this order. DISCUSSION: THE RAISING OF A DISCRETIONARY EXEMPTION BY A THIRD PARTY In its representations, the organization submits that Record 12 should be exempt from disclosure under the discretionary exemption contained in section 18(1)(d) of the Act (damage to the financial interests of the Government of Ontario). As a general rule, the responsibility rests with a Ministry to determine which, if any, discretionary exemptions should apply to a particular record. The Commissioner's office, however, has an inherent obligation to uphold the integrity of Ontario's access and privacy scheme. In discharging this responsibility, there may be rare occasions when the Commissioner or his delegate decides that it is necessary to consider the application of a discretionary exemption not originally raised by a Ministry during the course of an appeal. This result would occur, for example, where the release of a record would seriously jeopardize the rights of a third party. In my view, however, this appeal does not represent a situation where a discretionary exemption not originally raised by a Ministry should be considered. Accordingly, I am not prepared to apply section 18(1)(d) in the circumstances of this appeal. INVASION OF PRIVACY As indicated previously, the appellant has indicated that she does not wish to receive any personal information contained in the records which relates to other individuals. This information (which I have highlighted in yellow on the copy of the records to be provided to the Ministry's Freedom of Information and Privacy Co-ordinator) appears on pages 5, 6, 7 and 11 of Record 3(e). The passages in question must not be released to the appellant. THIRD PARTY INFORMATION The Ministry and the organization claim that sections 17(1)(a), (b) and (c) of the Act apply to each of the eight records at issue. For a document to qualify for exemption under this provision, the Ministry and/or the organization must satisfy each part of the following three-part test: 1. the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and 2. the information must have been supplied to the institution in confidence, either implicitly or explicitly; and 3. the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in sections 17(1)(a), (b) or (c) will occur. I will first consider the third part of the test and then go on to consider the first and the second components. Part Three of the Test To satisfy this component of the test, the Ministry and/or the organization must describe a set of facts or circumstances that would lead to a reasonable expectation that one of the harms described in section 17(1) will occur if the information contained in the records is released. The evidence which is presented to establish this connection must be clear and convincing. In her representations, the appellant states that the information should be disclosed so that an average citizen can judge the basis on which the grant was made, whether the grant fits the goals of the AROFP program and finally whether the organization has applied the monies in accordance with the goals set out in the grant. In its representations, the organization points out that the strategies outlined in its proposal were developed to combat a new and pernicious form of racism. It then argues that these approaches would be undermined if groups which promote racism are forewarned of them. In the context of section 17(1), the argument is that the release of this information would cause undue loss to the organization. In general terms, this would be an argument with considerable persuasive value. I would note, however, that several weeks after the organization submitted its representations to the Commissioner's office, it made a public announcement regarding the parameters of the strategy. On this basis, I cannot conclude that the release of information in the records which essentially elaborates on these strategies would cause the organization undue loss or jeopardise the work that it is undertaking. The organization also submits that the disclosure of its research methodology would confer an unfair advantage on other human rights groups which compete for scarce public funding. More particularly, the organization suggests that these groups could bring forward similar strategies without having to invest in the substantial research necessary to develop these products. I have carefully reflected on this submission. My conclusion, however, is that the organization has not provided me with sufficient evidence to establis


Legislation		FIPPA 17(1)(a), (b) & (c)


Subject Index		"supplied in confidence" disclosure provision reasonable expectation of harm


Signed by		Irwin Glasberg


Published		Oct 13, 1994


Type		Order


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