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P-627

Document		P-627


File #		P-9200547


Institution/HIC		Ontario Northland Transportation Commission


Summary		ORDER BACKGROUND: The Ontario Northland Transportation Commission (the ONTC) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to copies of minutes of all the ONTC's meetings for the previous year as well as any related documentation. The ONTC denied access to this information under sections 12, 13, 15, 17, 18 and 21 of the Act . The requester appealed the denial of access. Notice that an inquiry was being conducted to review the ONTC's decision was sent to the ONTC, the appellant and 17 affected persons. Representations were received from the appellant, the ONTC and several affected persons. During the inquiry, the ONTC disclosed a portion of the Minutes to the requester, and these records and section 21 of the Act are no longer at issue. The records remaining at issue in this appeal are portions of President's Reports relating to rail operations and labour relations for April and May 1991; July - October 1991; December 1991; and January - April 1992. These records relate to seven affected persons. Representations were received from four of these affected persons. In its representations, the ONTC removed the section 13(1) exemption it applied to information in the President's Reports under the headings Financial Results and Commercial Operations. As it claimed no other exemptions for this information and, in my view, no mandatory exemptions apply, I order its disclosure, and will consider below only the remaining portions of the records. ISSUES: The issues in this appeal are: A. Whether the discretionary exemption provided by section 18 of the Act applies. B. Whether the discretionary exemption provided by section 13(1) of the Act applies. C. Whether the mandatory exemption provided by section 12 of the Act applies. D. Whether the discretionary exemption provided by section 15(b) of the Act applies to one part of the records. E. Whether the mandatory exemption provided by section 17(1) of the Act applies. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the discretionary exemption provided by section 18 of the Act applies. The ONTC submits that sections 18(1)(a), (c) and (d) apply to information contained under the headings "Carload Freight" and "Freight Marketing" (including two graphs attached to the April 1991 report). It also submits that sections 18(1)(a), (e) and (g) apply to information under the heading "Passenger Trains". These sections read: A head may refuse to disclose a record that contains, (a) trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Ontario or an institution and has monetary value or potential monetary value; (c) information where the disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution; (d) information where the disclosure could reasonably be expected to be injurious to the financial interests of the Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario; (e) positions, plans, procedures, criteria or instructions to be applied to any negotiations carried on or to be carried on by or on behalf of an institution or the Government of Ontario; (g) information including the proposed plans, policies or projects of an institution where the disclosure could reasonably be expected to result in premature disclosure of a pending policy decision or undue financial benefit or loss to a person; Carload Freight/Freight Marketing The ONTC explains the highly confidential nature of contracts made between railways and shippers in today's market. The Carload Freight information in the records reveals freight rates, revenues and freight movements which result from confidential contracts the ONTC enters into with major freight customers. The ONTC emphasizes the importance of keeping this information confidential. To establish a valid exemption under section 18(1)(c), the ONTC must successfully demonstrate a reasonable expectation of prejudice to the economic interests or competitive position of a government institution arising from disclosure of the information. The test under section 18(1)(c) is one of a reasonable expectation of prejudice to economic or competitive interests. Descriptions of possible harm, even in substantial detail, are insufficient in themselves. At the least, there must be a clear and direct linkage between the disclosure of specific information and the harm alleged (Orders P-557 and M-202). The ONTC states that the Carload Freight portions of the records reveal the ONTC's freight volumes, revenues and traffic data. The ONTC submits that disclosure of the Carload Freight information would detrimentally affect the ONTC by providing competitors, especially highway carriers, with market data and other critical information. ONTC submits that the disclosure of this confidential information would place competitors: ... in a preferential position to rail carriers regarding submission of transportation proposals to the customers and this unfair advantage would dilute Ontario Northland's revenues and adversely impact on its economic interests. The ONTC emphasizes that the disclosure of this information could reasonably be expected to result in the loss of rail revenue to competitors, thereby causing prejudice to its economic interests and its competitive position. Having reviewed the information contained under the headings Carload Freight and Freight Marketing (including the two graphs attached to the April 1991 report), I am of the view that these portions of the records qualify for exemption under section 18(1)(c) of the Act . The ONTC also claimed sections 18(1)(d), 13 and 17 to exempt the Carload Freight information. As I have concluded that the Carload Freight information is properly exempt under section 18(1)(c) of the Act , it is not necessary for me to consider the additional exemptions which the ONTC applied to this part of the records. Passenger Trains The ONTC has applied section 18(1)(a) to exempt the information contained in this portion of the President's


Legislation		FIPPA 12(1) 15(b) 18(1)(a) 18(1)(c) 18(1)(d) 18(1)(e) 13(1) 17(1)


Subject Index		Economic or Other Interests of Institutions


Signed by		Holly Big Canoe


Published		Feb 10, 1994


Type		Order


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