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Document
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P-632
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File #
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P-9300201 and P-9300202
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Institution/HIC
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Stadium Corporation of Ontario Limited
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Summary
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ORDER BACKGROUND: The Stadium Corporation of Ontario Limited (SkyDome) received two requests under the Freedom of Information and Protection of Privacy Act (the Act ) for access to: (1) Briefings prepared by Stadco for the Ontario Government and the new Treasurer since October 1990, and any correspondence sent/received from the government relating to government policy or positions on the status of present financing or proposed refinancing arrangements relating to SkyDome. [The requester subsequently clarified that these materials related "... to the intended sale and privatization of Stadco and the financing related to that intended sale and privatization".] (2) Current capital budget, status of loans and any refinancing efforts underway. SkyDome identified one record as being responsive to each request and denied access to each in its entirety, claiming the exemptions in sections 13(1), 17(1), 18(1)(a), (c), (d), (e), (f) and (g) and 19 of the Act . The requester appealed both decisions to deny access and claimed that more records responsive to these requests should exist. The Commissioner's office opened Appeal Number P-9300201 to address the first appeal and Appeal Number P-9300202 to deal with the second. As mediation of these appeals was not possible, notices that inquiries were being conducted to review SkyDome's decisions were sent to SkyDome, the appellant and a company whose interests might be affected by disclosure of the information contained in the record responsive to the first request (the affected party). Representations were received from SkyDome only. The affected party confirmed that it would not be submitting any representations. In its representations, SkyDome made no representations with respect to the application of sections 18(1)(e), (f), (g) and 19 of the Act . As these are discretionary exemptions, I will not consider them in this order. THE RECORDS: The record identified by Skydome as being responsive to the first request is a 30-page briefing report which appears to have been prepared for the Ministry of Treasury and Economics. This document will be referred to as Record 1. The record responsive to the second request is a four-page document entitled "Fiscal 1991 Capital Plans" (Record 2). This record consists of four parts: Summary (page 1), Category A "Profit Generating/Cost Reduction" (page 2), Category B "Long Term/Quality & Safety of Facility" (page 3) and Category C "Improving Guest Satisfaction" (page 4). ISSUES: The issues to be addressed in these appeals are: A. Whether the discretionary exemption provided by section 13(1) of the Act applies to the records. B. Whether the mandatory exemption provided by section 17(1) of the Act applies to the records. C. Whether the discretionary exemptions provided by sections 18(1)(a), (c) and/or (d) of the Act apply to the records. D: Whether SkyDome conducted a reasonable search for the records in the circumstances of these appeals. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the discretionary exemption provided by section 13(1) of the Act applies to the records. Section 13 of the Act provides that: A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution. Accordingly, in order to qualify for exemption under section 13(1) of the Act , two requirements must be met: (1) the records or parts of records to be exempted must contain advice or recommendations, and (2) the advice or recommendations must have been given by a public servant, any other person employed in the service of an institution or a consultant retained by the institution. [Order P-628] SkyDome's representations with respect to the application of section 13(1) of the Act to both records merely state: The information contained in the Record was compiled with the advice and recommendations of various persons employed by or a consultant retained by the Institution. The Record does not fall within any of the exceptions contained in sub-section 13(2) and consequently the Record should not be disclosed pursuant to the provisions of sub-section 13(1). No further evidence of any kind to substantiate this position was provided. As far as the first requirement of the section 13(1) exemption is concerned, the "advice" must contain more than mere information. Generally speaking, advice pertains to the submission of a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process (Order 118). "Recommendations" must be viewed in the same vein. A record that identifies an option is not exempt under this section where there is no indication whether or not the option is recommended (Order P-398). While Record 1 concludes with five options, there is no indication which option is or is not recommended, and what the suggested course of action, if any, might be. The four-page summary of certain financial plans which comprises Record 2 does not contain any advice or recommendations at all. With respect to the second requirement of the section 13(1) exemption, apart from the statement of Skydome's representations reproduced above, I have been provided with no evidence concerning the identity(ies), positions or any other information about the individual or group who created these records. Accordingly, having reviewed the records, and in the absence of further evidence, I am not satisfied that section 13(1) applies to either Record 1 or 2. ISSUE B: Whether the mandatory exemption provided by section 17(1) of the Act applies to the records. Sections 17(1)(a), (b) and (c) of the Act state: 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 pers
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Legislation
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FIPPA
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17(1)(a), (b) & (c)
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18(1)(a)
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18(1)(c)
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18(1)(d)
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Subject Index
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Signed by
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Anita Fineberg
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Published
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Feb 22, 1994
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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