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P-561

Document		P-561


File #		P-910275


Institution/HIC		Stadium Corporation of Ontario Limited


Summary		ORDER BACKGROUND: The Stadium Corporation of Ontario Limited (SkyDome) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to: ... copies of any and all reports, correspondence, memos or other documents relating to the testing performed by [a named company] prior to October, 1988, on the steel that was used in the construction of the retractable roof of SkyDome. SkyDome located a large number of records that were responsive to the request. SkyDome also determined that the release of these documents might affect the interests of a number of third parties and, pursuant to section 28(1) of the Act , notified several companies that an access request had been received. These third parties were invited to make representations on whether the documents in question should be released. SkyDome then considered the submissions made and decided to withhold access to the records in their entirety pursuant to sections 17(1)(a), (b) and (c) of the Act . The requester appealed the decision. During the course of the mediation process, the appellant indicated that she was not interested in (1) certain correspondence contained in the records and (2) certain inspection reports which did not involve the steel used in the retractable roof. The appeal was consequently narrowed in these respects. Further mediation to resolve the appeal was not successful and notice that an inquiry was being conducted to review the institution's decision was sent to SkyDome, the appellant, and 17 affected persons. These affected persons included (1) the company which undertook the quality control inspection of the steel used for the roof structure, (2) architects and engineering firms involved in the project, (3) the general contractor, (4) certain sub-contractors and (5) two steel fabricators. Representations were received from the appellant, SkyDome and ten of the affected persons. While the representations were being considered, the Commissioner's office learned that one group of records to which the appellant sought access was available for review at the City of Toronto's Buildings and Inspections Department. As a result, it was decided that SkyDome and the five affected persons with an interest in the records should be asked whether they would continue to rely on section 17(1) of the Act to deny access to these documents. Further representations were received from three of these parties. One affected person consented to the release of these records while two others did not. Before proceeding to analyze the records at issue, I should state that the processing of this appeal was rendered particularly complex and time-consuming for a number of reasons. First, there were a large number of records to be considered. Second, these documents were extremely technical in nature. Third, the question of whether section 17(1) of the Act applied to the records represented the first occasion that the Commissioner's office was called upon to apply the principles of intellectual property law to engineering and architectural reports. THE RECORDS AT ISSUE: Because of the large number of records and their nature, these documents have been divided into seven general groupings which I shall describe below: The Group 1 records consist of a series of reports which document the inspections carried out on the steel which was to be used for the retractable roof. These inspections were undertaken at the steel fabricator's shop prior to October 1988. The records which make up Groups 2 and 3 constitute a series of inspection reports which relate to structures such as stairs, handrails and catwalks. Having reviewed the contents of these reports, I find that they do not relate to the structural steel elements used in the retractable roof and, hence, fall outside the ambit of the access request. On this basis, these records will not be considered further for the purposes of this appeal. The Group 4 records consist of a series of reports relating to inspections at the construction site. These documents set out the procedures to be followed in building the roof and comment on the progress made in completing the structure in the relevant period of time (i.e. between October 1987 and September 1988). Of these records, a total of 19 (which involve inspections conducted between January 10 to September 18, 1988) were found in the City of Toronto's Buildings and Inspections Department, whereas five (covering the period between October 18 and December 27, 1987) were not. For ease of reference, I shall refer to the first set of records as Group 4A and the second as Group 4B. The Group 5 records are reports which relate to the testing of the Hollow Structural Steel Seams which were part of the SkyDome structure. The Group 6 records consist of reports on the metallurgical testing for quality of some steel members used in the roof structure. Finally, the Group 7 records comprise a series of documents which relate to the development of a testing process for the roof seals. Where appropriate, I have also integrated any correspondence found in the records into the group to which these documents most clearly relate. The records which remain at issue in this appeal are, therefore, those contained in Groups 1, 4, 5, 6 and 7. ISSUES: The issues to be determined in this appeal are: A. Whether the mandatory exemptions provided by sections 17(1)(a), (b) or (c) of the Act apply to the records at issue. B. If the answer to Issue A is yes, whether a compelling public interest in the disclosure of the records clearly outweighs the purpose of the exemption provided by section 17(1) of the Act . SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the mandatory exemptions provided by sections 17(1)(a), (b) or (c) of the Act apply to the records at issue. Sections 17(1)(a), (b) and (c) of the Act read as follows: A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to, (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; (b) result in similar information no longer being supplied to the


Legislation		FIPPA 17(1)(a) 17(1)(c) 17(1)


Subject Index		"supplied in confidence" "supplied" competitive position health and safety issues reasonable expectation of harm trade secret undue loss or gain


Signed by		Irwin Glasberg


Published		Oct 22, 1993


Type		Order


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