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P-901

Document		P-901


File #		P-9400248


Institution/HIC		Ontario Hydro


Summary		NATURE OF THE APPEAL: In 1986, Ontario enacted the Provincial Nuclear Emergency Plan (PNEP) in order to deal with nuclear accidents up to a certain level of severity. In the same year, following the nuclear accident at Chernobyl, the provincial government established a number of committees to consider the safety of Ontario Hydro's CANDU reactors. One such committee was designated as "Provincial Working Group #8" (the Working Group). The objective of the Working Group, which was made up of government officials and scientists, was to review the technical basis for nuclear emergency planning in Ontario and to make appropriate recommendations to the provincial government. The report of the Working Group was circulated to many individuals and groups before being finalized in 1988. The provincial government considered the recommendations of the Working Group in developing a Cabinet Submission which was presented to the Cabinet Committee for Environmental Planning on September 30, 1993. The requester in this appeal, which is brought under the Freedom of Information and Protection of Privacy Act (the Act ), is a member of a public interest group. He asked Ontario Hydro (Hydro) for access to all documents respecting possible revisions to the PNEP. Among other things, the requester sought information on the requirement to pre-distribute "stable iodine" or potassium iodine to the public in the event of a nuclear emergency, the zone around each nuclear reactor to be covered by the plan and the recommendations of the Working Group on the subject of emergency planning. The requester also wished to receive access to a number of identified documents pertaining to these and related subjects. Hydro located a total of 24 records that were responsive to the request (four of which had two parts) and agreed to release eight of these documents to the requester in their entirety. The Ministry made the decision, however, not to disclose the remaining 16 records, either in whole or in part, based on the Cabinet records exemption found in section 12(1) the Act . The requester appealed this decision to the Commissioner's office. During the mediation stage of the appeal, Hydro agreed to release portions of two of the undisclosed records to the appellant. The contents of the 14 records which remain at issue in this appeal are generally described in Appendix "A" which is attached to this order. For ease of reference, I have retained the original numbering scheme adopted by Hydro. The documents in question consist of letters, memoranda, briefing notes, minutes and various analyses of the Cabinet Submission and other reports. A Notice of Inquiry was provided to the appellant and Hydro. Representations were received from both parties. Since some of the records identified by Hydro made reference to Cabinet documents, I also invited the Ministry of the Solicitor General and Correctional Services (the institution which prepared the Cabinet Submission) to provide the Commissioner's office with its views on the applicability of the Cabinet records exemption. The Ministry chose not to make a separate submission but instead relied on the representations advanced by Hydro. In his representations, the appellant took the position that, based on section 11 of the Act (obligation to disclose a grave environmental, health or safety hazard), Hydro ought to have released the contents of these documents to the public. In its representations, Hydro claimed for the first time that section 13(1) of the Act (the advice or recommendations exemption) applied to each of the records at issue. DISCUSSION: THE RAISING OF ADDITIONAL DISCRETIONARY EXEMPTIONS LATE IN THE APPEALS PROCESS On April 27, 1994, the Commissioner's office provided Hydro with a Confirmation of Appeal which indicated that, based on a policy adopted by the Commissioner's office, Hydro would have 35 days from the date of the confirmation (until June 2, 1994) to raise any discretionary exemptions not originally claimed in its decision letter. No additional exemptions were put forward during this period. It was not until August 22, 1994, following the issuance of the Notice of Inquiry, that Hydro indicated for the first time that it wished to rely on section 13(1) of the Act (the advice or recommendations exemption) to deny access to 12 of the records at issue. Previous orders issued by the Commissioner's office have held that the Commissioner or his delegate has the power to control the manner in which the inquiry process is undertaken. This includes the authority to set time limits for the receipt of representations and to limit the time frame during which an institution can raise new discretionary exemptions not originally cited in its decision letter. In Order P-658, Inquiry Officer Anita Fineberg explained why the prompt identification of discretionary exemptions is necessary to maintain the integrity of the appeals process. She indicated that, unless the scope of the exemptions being claimed is known at an early stage in the proceedings, it will not be possible to effectively seek a mediated settlement of the appeal under section 51 of the Act . Inquiry Officer Fineberg also pointed out that, where a new discretionary exemption is raised after the Notice of Inquiry is issued, it will be necessary to re-notify all parties to an appeal to solicit additional representations on the applicability of the new exemption. The result is that the processing of the appeal will be further delayed. Finally, Inquiry Officer Fineberg made the important point that, in many cases, the value of information which is the subject of an access request diminishes with time. In these situations, appellants are particularly prejudiced by delays arising from the late raising of new exemptions. The objective of the policy enacted by the Commissioner's office is to provide government organizations with a window of opportunity to raise new discretionary exemptions but not at a stage in the appeal where the integrity of the process is compromised or the interests of the appellant prejudiced. In the present case, the Ministry was advised of this policy yet decided to rely on a new discretionary exemption almost four months after the Confirmation of Appeal was issued. Since the Ministry has failed to advance any arguments to indicate why the 35-day time limit should not apply in the present appeal, I will not consider the application of the section 13(1) exemption in this appeal. OBLIGATION TO DISCLOSE A GRAVE ENVIRO


Legislation		FIPPA 11(1) 12(1)(b) 12(1)(c) 12(1)(d) 12(1)(e) 12(2)(b) Section 23


Subject Index		briefing materials consultation among ministers effect of 'leaks' on right to access nuclear accident preparedness Obligation to Disclose Grave Hazards


Signed by		Irwin Glasberg


Published		Apr 10, 1995


Type		Order


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