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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: the actual agreement, all sub-agreements, the letter of intent and all background documents that (i) were announced Nov. 14/91, or (ii) are related to [the proposed sale of SkyDome] (including new [consortium] agreements). SkyDome did not make a substantive decision on the access request but instead provided the requester with a fee estimate of $360. The requester appealed SkyDome's decision regarding the amount claimed for record search and preparation time and also requested a fee waiver. This fee appeal was processed by the Commissioner's office and resulted in the issuance of Order P-409. In that order, former Assistant Commissioner Tom Mitchinson held that the fee estimate did not comply with the requirements of section 57(1)(a) of the Act and, therefore, that SkyDome was precluded from charging any fee for processing the appellant's request. SkyDome was then ordered to issue a proper decision letter in response to the original request. SkyDome subsequently identified one record that was responsive to the request. This record consists of a five page document entitled "Letter of Intent", dated November 12, 1991, to which are attached Schedules A and B, comprising three pages and one page, respectively. SkyDome also determined that the release of the document might affect the interests of a number of third parties and, pursuant to section 28(1) of the Act , notified several organizations 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), 18(1)(a), (c), (d), (e), (f) and (g) and 21 of the Act . The requester appealed SkyDome's decision. Efforts to mediate this appeal were not successful and notice that an inquiry was being conducted to review SkyDome's decision was sent to SkyDome, the appellant and to nine affected persons. Representations were received from SkyDome, from counsel representing seven of the affected persons, as a group, and from one other affected person individually. The representations received from the group of seven affected persons (the SAI group), refer to the presence of "labour relations information" in the record. That reference, in turn, raises the potential applicability of section 17(1)(d) of the Act to the Letter of Intent. The group's representations do not, however, pursue this issue in any detail nor is it addressed by any of the other parties. For these reasons and based on my independent review of the record, I find that this provision does not apply to the information contained in the Letter of Intent. In the Notice of Inquiry, the parties were also invited to make representations on the applicability of section 21 of the Act to the Letter of Intent but no submissions were received. Since section 21 is a mandatory exemption, I have reviewed the record to determine whether it contains any personal information and, if so, whether the disclosure of that information would constitute an unjustified invasion of the personal privacy of an individual. My conclusion is that the Letter of Intent does not contain any personal information and, on this basis, it is not necessary for me to pursue this issue further. ISSUES: The issues to be addressed in this appeal are: A. Whether the mandatory exemptions provided by sections 17(1)(a), (b) and (c) of the Act apply to the record. B. Whether the discretionary exemptions provided by sections 18(1)(a), (c), (d), (e), (f) and (g) of the Act apply to the record. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the mandatory exemptions provided by sections 17(1)(a), (b), (c) of the Act apply to the record. Section 17(1) of the Act states that: 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 institution where it is in the public interest that similar information continue to be so supplied; (c) result in undue loss or gain to any person, group, committee or financial institution or agency; ... For a record to qualify for exemption under sections 17(1)(a), (b) or (c), the institution and/or the affected persons involved in the appeal must demonstrate that each component of the following three-part test has been met: 1. the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and 2. the information must have been supplied to the institution in confidence, either implicitly or explicitly; and 3. the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in sections 17(1)(a), (b) or (c) will occur. [Order 36] If any part of the test is not satisfied, the exemption under section 17(1) will not apply to the record (Order 36). I will first consider part two of the test, which requires that SkyDome and/or the affected persons must establish that the information contained in the record was supplied to SkyDome and secondly that such information was supplied in confidence either implicitly or explicitly. A number of previous orders have addressed the question of whether information contained in an agreement entered into between an institution and an affected person was supplied by the affected person. In general, the conclusion reached in these orders is that, for such information to have been supplied to an institution, the information must be the same as that originally provided by the affected person. Since the information contained in an agreement is typically the product of a
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