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ORDER BACKGROUND: Stadium Corporation of Ontario Limited (the institution) received two separate requests for access to records under the Freedom of Information and Protection of Privacy Act (the Act ). The first request was for: Documentation on remaining work/projects before Partnership agreement is entered into between consortium and Skydome, and any written documents on this type of agreement, including implications of delaying having such an agreement after stadium opening date, both economic and legal. The institution identified one record, a draft partnership agreement between the institution and Dome Consortium Investment Inc., as the only responsive record, and denied access pursuant to sections 13(1), 17(1) and 18(1) of the Act . The second request was for: Status and records on developing a partnership agreement between Skydome and consortium members. The institution identified three responsive records, including the same draft partnership agreement. After consulting with two organizations whose interests could be affected by disclosure of these records (the affected persons), the institution denied access to all three records pursuant to sections 13(1), 17(1)(a), (b) and (c), and 18(1)(a), (c), (d), (e), (f) and (g) of the Act , and provided a fee estimate to the requester. The requester appealed all exemption claims in both decisions, but did not appeal the fee estimate. Because the record in the first appeal was also at issue in the second appeal, both were combined for the purposes of this order. The three records can be described as follows: 1. six-page draft partnership proposal and 1-page covering letter dated January 16, 1986 from one affected person to the institution 2. eight-page memo-to-file dated January 22, 1986 headed "Joint Venture Arrangements - Stadium Corporation/Consortium" 3. undated 36-page draft partnership agreement described as Appendix "I" to Fifth Amending Agreement, Schedule "C" Mediation of the appeals was not successful and the matters proceeded to inquiry. Notice that an inquiry was being conducted to review the decisions of the head was sent to the appellant, the institution and the two affected persons. Enclosed with each Notice of Inquiry was a report prepared by the Appeals Officer, intended to assist the parties in making their representations concerning the subject matter of the appeal. Written representations were received from the appellant, the institution and counsel representing the two affected persons. During the course of the inquiry the Appeals Officer determined that Records 1 and 3 were publicly available, together with numerous other related records, in the court file for the case of Stadium Corporation of Ontario Limited v. Wagon-Wheel Concessions Ltd., Environmental Innovations Limited and Gary Gladman . This fact was drawn to the attention of the institution, to determine whether it had any effect on the exemption claims. The institution's position remained unchanged and the appeals proceeded. ISSUES: The issues arising in this appeal are as follows: A. Whether the discretionary exemption provided by section 13(1) of the Act applies to any of the records. B. Whether the mandatory exemption provided by sections 17(1)(a), (b) and/or (c) of the Act apply to any of the records. C. Whether the discretionary exemption provided by sections 18(1)(a), (c), (d), (e), (f) and/or (g) of the Act apply to any of the records. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the discretionary exemption provided by section 13(1) of the Act applies to any of the records. Section 13(1) of the Act reads as follows: 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. The institution submits that: Records 1 and 2 should be considered advice and recommendations as their contents influenced various decisions and courses of action undertaken by the institution resulting in the current draft of the partnership agreement (Record 3), such as strategic and financial planning. It has been established in a number of orders that advice and recommendations for the purpose of section 13(1) must contain more than mere information. To qualify as "advice" or "recommendations" the information contained in the records must relate to a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process. [Order 118] Having reviewed the three records, in my view, none of them contain information which could be properly characterized as "advice" or "recommendations" as those terms are used in section 13(1) of the Act . ISSUE B: Whether the mandatory exemption provided by sections 17(1)(a), (b) and/or (c) of the Act apply to any of the records. 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 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; In order to qualify for exemption under sections 17(1)(a), (b) and/or (c), the institution and/or affected person must satisfy the requirements of the following three-part test: 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 <
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