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Summary
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NATURE OF THE APPEAL: This is my second interim order with respect to some of the outstanding issues from Interim Order PO-1927-I. Ontario Power Generation Inc. (formerly part of Ontario Hydro) (for simplicity, both referred to interchangeably as Hydro in this 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 (now the appellant). 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 issued a fee estimate. 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 . As well, during the mediation stage of this appeal, one of the affected parties took the position that the Act has 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 and Hydro, asking for representations on the constitutional issue, as well as on most of the substantive issues that remained outstanding. I also sent the Notice to a number of parties, asking them to provide representations on the constitutional issue. I decided not to seek representations on the section 17(1) exemption claim at that time, pending my determination on the constitutional issue. Following the receipt and exchange of representations, I issued Interim Order PO-1927-I in which I found that: - the Act applied to the records; - the section 15(a) exemption claim was not applicable in the circumstances of the appeal; - many of the records qualified for exemption under section 15(b); - under section 23 of the Act , there existed a compelling public interest in the disclosure of twenty-three records or portions of records that qualified 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 had met the first part of the test. I had initially also sought representations on the application of the section 18 exemption claim, but decided to defer consideration in Interim Order PO-1927-I for the following reasons outlined in that order: Now that I have determined that I have jurisdiction to deal with the records and issues in this appeal, I must provide the various affected parties with an opportunity to provide representations on the application of section 17(1) for those records for which they have an interest, and I will be issuing a Supplementary Notice of Inquiry to Hydro and those affected parties for this purpose. Given the nature of the sections 17 and 18 exemption claims, and some similar considerations that apply to both of them, I have decided to defer my decisions regarding the application of the sections 18(1)(a), (c) and (d) exemption claims until I have received representations from the parties on section 17(1). All issues relating to sections 17 and 18 will be addressed in my final order. Finally, in Interim Order PO-1927-I summarized the matters which remained at issue as follows: This Interim Order disposes of all of the records at issue, with the exception of the following records, which are subject to consideration under section 17(1)(a), (b) and (c) following notification of the relevant affected parties; sections 18(1)(a), (c) and (d); and/or section 23 of the Act : • Records 1, 31, 34, 40, 46, 51, 55, 56, 62, 63, 66, 71, 72, 73, 81, 102, 108, 113, 133, 155, 164, 213 and 245; and • Records 12, 33, 47, 48, 49, 50, 52, 68, 79, 86, 90, 91, 106, 125, 136, 138, 139, 141, 148, 150, 151, 154, 156, 157, 158, 159, 160, 161, 162, 163, 165, 166, 167, 174, 175, 178, 179, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 248, 251, 254, 261, 265, 267, 268 and 269, and the undisclosed portions of Records 197, 203, 256 and 262. After issuing Interim Order PO-1927-I, I sent a Supplementary Notice of Inquiry to Hydro and the six identified affected parties. I received representations from Hydro and four affected parties. I then sent the Supplementary Notice, along with Hydro's representations and the non-confidential portions of the representations of one of the affected parties, Atomic Energy Canada Limited (AECL), to the appellant. The appellant did not provide representations in response. RECORDS: The records remaining at issue in this appeal are listed above. However, because some records are essentially duplicates of others, I have removed certain records from the scope of my inquiry. Specifically: Record 34 is similar to Records 40, 46 and 155, but for some notations and/or cover pages that are not relevant to my section 23 discussion; Records 63 and 71 are similar to records 73 and 72 respectively, and the minor differences are not relevant to my section 23 discussion; Record 55 is contained in record 56, but for a date stamp that is not relevant to my section 23 discussion. Accordingly, the records remaining at issue in this appeal consist of the following two groups: #1 Records or portions of Records 1, 31, 34, 51, 56, 62, 63, 66, 71, 81, 102, 108, 113, 133, 164, 213 and 245; and #2 Records 12, 33, 47, 48, 49, 50, 52, 68, 79, 86, 90, 91, 106, 125, 136, 138, 139, 141, 148, 150, 151, 154, 156, 157, 158, 159, 160, 161, 162, 163, 165, 166, 167, 174, 175, 178, 179, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 248, 251, 254, 261, 265, 267, 268 and 269, and the undisclosed portions of Records 197, 203, 256 and 262.
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