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Summary
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BACKGROUND : The Electricity Act, 1998 implemented a restructuring of Ontario Hydro (Hydro), effective April 1, 1999. At the same time, 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 Hydro prior to April 1, 1999 and unresolved as of that date. NATURE OF THESE APPEALS: Hydro received a request under the Act for access to all records pertaining to a named individual or his corporate entities from July 1, 1995 to the date of the request (October 8, 1998). Hydro identified 110 pages of responsive records, consisting of an engagement letter, invoices, purchase orders, purchase requisitions, administrative instruction notices, letters, a draft communication strategy, a brochure with covering letter, and other related notes and e-mail messages created by Hydro employees. Before responding to the requester, Hydro notified the named individual, pursuant to section 28 of the Act , and sought his views on disclosure of the records. This individual did not object to disclosure of the brochure and an attached covering letter, but did object to disclosure of all other records. Following consideration of the individual's response, Hydro issued its decision letter to the requester. Hydro: • granted access in full to 87 pages; • granted partial access to 11 pages, claiming sections 17(1)(a) and (c) (third party information) as the basis for exempting those portions relating to professional fees, the identity of specific employees of the appellant's company, and the payment rates and billable time associated with each employee; • granted partial access to seven pages, claiming section 21(1) (invasion of privacy) as the basis for exempting certain information concerning a senior Hydro official; and • denied access in full to the five- page draft communication strategy pursuant to section 18(1)(c). The named individual (now the third party) appealed Hydro's decision to disclose the 87 full pages and 18 partial pages, claiming that they qualified for exemption pursuant to sections 17(1) and 21(1) of the Act (Appeal PA-990001-1). The requester appealed Hydro's denial of access to the remaining portions of the 18 pages of records, and to the draft communications strategy (Appeal PA-990032-1). The appellant subsequently raised the possible application of the public interest override contained in section 23 of the Act . During mediation, Hydro identified ten additional pages of invoices. Hydro advised the third party that it intended to grant the requester access in full to six pages and partial access to the other four pages. The basis for denying access to the remaining information on these four pages was the same as for the other pages of invoices described above. These ten pages have been added to the scope of this appeal. The third party also raised the possible application of the sections 13(1) and 18(1) discretionary exemptions not claimed by Hydro. In the third party's view: ... the appropriate "head" has improperly considered, or neglected to consider, these discretionary exemptions and accodingly the application of these sections should be referred back to the "head" for proper consideration. Neither Hydro nor the third party object to disclosure of the company brochure and covering letter. The third party points out that "[t]his brochure forms part of the material on our web page, which can be readily accessed by any member of the public". However, it would appear that these two records have not yet been disclosed to the requester, so I will include a provision in my order requiring disclosure. I sent a Notice of Inquiry to OPGC (on behalf of Hydro), the third party, the requester, and nine individuals employed by the third party's company whose names appear in the records and whose interests may be affected by the outcome of these appeals (the affected persons). Representations were received from OPGC, the requester and counsel for the third party. PRELIMINARY MATTERS: JURISDICTION In his representations, counsel for the third party made the following submission: Pursuant to sections 2(1), 10 and 69 of the Act, the Information and Privacy Commissioner/Ontario only has jurisdiction over those institutions listed in the schedule to Regulation 460. Accordingly, effective April 1, 1999 the Act ceased to apply to, and the Information and Privacy Commissioner lost jurisdiction over, the disclosure of any records of Ontario Hydro or Ontario Hydro Financial Corporation ... Based on the foregoing, it is our submission that the Information and Privacy Commissioner/Ontario lacks jurisdiction to order disclosure of the records sought. In our submission, this should dispose of the appeals on the basis of a lack of jurisdiction . [emphasis in original] Under the circumstances, and while the issue of jurisdiction of the Information and Privacy Commissioner/Ontario is outstanding, it is premature to make further submissions. I acknowledged receipt of the third party's representations, and reminded counsel of the deadline for submitting representations on the substantive issues raised in the Notice. My letter included the following: I
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