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Summary
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O R D E R INTRODUCTION: This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act,1987 , as amended (the " Act ") which gives a person who has made a request for access to a record under subsection 24(1) a right to appeal any decision of a head to the Commissioner. On January 5, 1990, the undersigned was appointed Assistant Commissioner and received a delegation of the power to conduct inquiries and make Orders under the Act . The facts of this case and procedures employed in making this Order are as follows: 1. On October 15, 1989, Stadium Corporation of Ontario (the "institution") received a request for access to: Documents related to the approach by Pepsi to become a consortium member, and any replies and internal data on this, and reasons for non-entry to the consortium. Why are three breweries allowed to be consortium members and only one soft drink company? (1984-1989 period). 2. On November 21, 1989, the institution's Freedom of Information and Privacy Co-ordinator wrote to the requester advising that access was denied to the requested records as they were exempt from disclosure under subsections 18(1)(a), (c), (d), (e), and (g) and section 19 of the Act . 3. By letter dated November 29, 1989, the requester appealed the head's decision. Notice of the appeal was given to the institution and the appellant. 4. The institution originally identified five records as being responsive to the request. These records were obtained and reviewed by an Appeals Officer. At the request of the Appeals Officer, a further search was conducted at the institution and four additional records were identified as being responsive to the request. The requested records consist of nine letters between the institution, Dome Consortium Investments Inc., Pepsi-Cola Canada, and Pepsi/Seven-Up Toronto (Division of Seven-Up Canada Inc.). The records were withheld from disclosure in their entirety. During the course of mediation, the Appeals Officer contacted representatives of both Pepsi-Cola Canada and Pepsi/Seven-Up Toronto. Pepsi-Cola Canada is the franchisor and sells franchises across Canada. Pepsi/Seven-Up Toronto is the franchisee for the Toronto area. Pepsi-Cola Canada and Pepsi/Seven-Up Toronto are separate legal identities. 5. Settlement of the appeal was not effected and the matter proceeded to inquiry. 6. Notice of Inquiry was sent to the institution and the appellant. Notice of Inquiry was also sent to Pepsi-Cola Canada Limited, Pepsi/Seven-Up Toronto, Dome Consortium Investments Inc., and the Ministry of Treasury and Economics, (the "affected parties") as disclosure of the requested records might affect their interests. The Notice of Inquiry was accompanied by a report prepared by the Appeals Officer. This report is prepared in order to assist the parties in making representations concerning the subject matter of the appeal. The Appeals Officer's Report outlines the facts of the appeal and sets out questions which paraphrase those sections of the Act which appear to the Appeals Officer, or any other parties, to be relevant to the appeal. Those sections of the Act paraphrased in the report include exemption sections cited by the head in refusing access to a record or a part thereof. The report indicates that the parties, in making their representations, need not limit themselves to the questions set out in the report. 7. Representations were received from the institution, the four affected parties and the appellant. I have considered all of the representations in making my Order. 8. In its representations, the institution addressed the application of the section 17 exemption which was referred to in the Appeals Officer's Report. The following records, which have been withheld from disclosure in their entirety, are at issue in this appeal: 1. A one page letter from Pepsi-Cola Canada Ltd. to the institution, regarding Pepsi's membership in Dome Consortium Investments Inc., dated October 29, 1987. 2. A one page letter from Dome Consortium Investments Inc. to Pepsi-Cola Canada Ltd., dated November 9, 1987. 3. A two page letter from Pepsi/Seven-Up Toronto to the institution, dated June 29, 1989. 4. A two page letter from Pepsi/Seven-Up Toronto to the institution, dated July 14, 1989. 5. A two page letter from the institution to Pepsi/Seven-Up Toronto, dated July 24, 1989. 6. A two page letter from Pepsi/Seven-Up Toronto to the institution, dated August 4, 1989. 7. A one page letter from the institution to Pepsi/Seven-Up Toronto, dated August 21, 1989. 8. A one page letter from Pepsi-Cola Canada Ltd. to the institution, dated October 25, 1989. 9. A one page letter from the institution to Pepsi-Cola Canada Ltd., dated November 10, 1989. PURPOSES OF THE ACT/BURDEN OF PROOF: It is important to note at the outset the purposes of the Act as outlined in subsections 1(a) and (b). Subsection 1(a) provides a right of access to information under the control of institutions in accordance with the principles that information should be available to the public and that necessary exemptions from the right of access should be limited and specific. Subsection 1(b) sets out the counter-balancing privacy protection purpose of the Act . This subsection provides that the Act should protect the privacy of individuals with respect to personal information about themselves held by institutions and should provide individuals with a right of access to their own personal information. Furthermore, section 53 of the Act provides that the burden of proof that a record, or a part thereof, falls within one of the specified exemptions in the Act lies with the head of the institution. Affected parties who rely on the exemption provided by section 17 of the Act share with the institution the onus of proving that this exemption applies to the requested records or parts of the requested records. ISSUES/DISCUSSION: The issues arising in this appeal are as follows: A. Whether the head properly applied the mandatory exemption provided by section 17 of the Act to exempt Records 1-9 from disclosure. B. Whether the head pr
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