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Document
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PO-1698
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File #
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PA-990044-1
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Institution/HIC
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Ontario Hydro
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Summary
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BACKGROUND : The Electricity Act, 1998 implemented a restructuring of Ontario Hydro, effective April 1, 1999. At the same time, Ontario Hydro ceased to be an institution covered by the Freedom of Information and Protection of Privacy Act (the Act ). Some, but not all, of the new corporate bodies created as part of the restructuring exercise were added by regulation to the list of institutions covered by the Act . Ontario Power Generation Company (OPGC) was not one of the new organizations designated as an institution. However, by means of a Transfer Order made by the Lieutenant Governor in Council under the Electricity Act, 1998 , OPGC assumed responsibility for all requests made under the Act that were received by Ontario Hydro prior to April 1, 1999 and unresolved as of that date. NATURE OF THE APPEAL: On November 9, 1998, Ontario Hydro received a request under the Act for access to all records pertaining to the contract between a named company and Ontario Hydro from "Jan 1 1998 to present". Ontario Hydro identified two responsive records: an "Engagement Letter" dated March 3, 1998 signed by the officials of the named company and Ontario Hydro; and an "Amending Letter" dated August 25, 1998 signed by the same individuals. The content of these two letters reflects arrangements for the named company to act as exclusive financial advisor to Ontario Hydro "in connection with a potential Transaction involving the nuclear power generating assets of Hydro". Pursuant to section 28 of the Act , Ontario Hydro notified the named company of the request and provided the company with an opportunity to submit representations if it felt the records should not be disclosed. After considering the company's response, Ontario Hydro issued its decision to the requester granting access to both records in their entirety. The company (now the appellant) appealed Ontario Hydro's decision, but only with respect to "Schedule A", a Transaction Fee Schedule, which was attached to the Engagement Letter. The appellant claimed that this schedule qualifies for exemption pursuant to sections 17(1)(a) and (c) of the Act . During the course of mediation, the records were provided to this Office by Ontario Hydro. Included among them was a third record, which was not referred to in the appellant's letter of appeal. This record is a five-page purchase order, dated November 25, 1998, naming the appellant as supplier, with an attached two-page unsigned memorandum of purchase approval, dated May 20, 1998. Ontario Hydro identified this record as responsive to the appellant's request, but had not provided section 28 notice to the appellant. Because the Mediator determined that disclosure of this record might affect the interests of the appellant, she asked OPGC, which had by this point assumed responsibility for the appeal under the terms of the Transfer Order, to provide a copy of the record to the appellant, which it did. The appellant objected to disclosure of this record, and advised the Mediator accordingly. The appellant claimed that the record was created after the date of the request and therefore was not responsive; that it was unsigned and therefore not part of the contractual arrangements between the appellant and Ontario Hydro; or, alternatively, that it also qualified for exemption pursuant to sections 17(1)(a) and (c) of the Act . As a consequence, this third record was added to the scope of the appeal. I sent a Notice of Inquiry to OPGC (on behalf of Ontario Hydro), the appellant and the requester. Representations were received by all three parties. PRELIMINARY MATTERS: Responsiveness The appellant claims that the purchase order and attachment are not responsive to the request, for two reasons: (1) because the date of the purchase order (November 25, 1998) falls after the date of the request (November 9, 1998); and (2) because the record is in draft form and unsigned by Ontario Hydro. With regard to the first reason, the appellant points to the actual wording of the request, which includes the time frame "Jan 1 1998 to present", and is dated November 9, 1998. The appellant refers to Order P-931 which includes the statement: The Act does not impose an obligation on an institution to make a decision with respect to records that do not exist at that point in time. The appellant acknowledges that the attachment to the purchase order, dated May 20, 1998, falls within the time frame of the request. OPGC's representations on this issue are as follows: 1. The Purchase Order is an internally generated document created for Ontario Hydro's administrative purposes. 2. Furthermore, although the purchase order is dated November 25, 1998, it is our understanding that it was entered into our computer system on May 21, 1998. The requester accepts that the purchase order is not dated within the time period specified by the request, but submits that it makes sense to deal with it in the context of other related records, and that it is "reasonably related" to the request, the phrase used in Order P-880 to define responsiveness. Turning to the second reason, the appellant points out that the record was neither signed by Ontario Hydro nor sent to the appellant, and remains in draft form. The appellant submits: Until a Purchase Order is signed by one contracting party and sent to the other contracting party, it cannot be considered to form part of a contract between two parties. Since the Purchase Order should not be considered to form part of the [appellant's] contract with Ontario Hydro, it does not fall within the purview of the Requester's request, and cannot be considered to be reasonably related to it. The requester points out that his request was for all records "pertaining to the [appellant's] contract". Therefore, he submits that even if the record in draft form does not form part of the contract, the record is still clearly responsive to the request as worded. The issue of responsiveness of records was canvassed in detail by former Adjudicator Anita Fineberg in Order P-880, referred to earlier. That order
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Legislation
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Jul 21, 1999
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Type
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Order
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