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Document
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PO-2399
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File #
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PA-030420-2
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Institution/HIC
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Ministry of Northern Development and Mines
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Summary
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NATURE OF THE APPEAL:
The Ministry of Northern Development and Mines (the Ministry) received a request under the
Act for access to a geological report on a proposed quarry at a named harbour in northern
Ontario. The requester specifically asked for access to the following:
• Geological report received by district geologist for [the named] District, [a named
employee], subsequent to August 2003
• Report is on the geology of the proposed quarry at [the named harbour], being
undertaken by [a named company] under the consultant, [a named consulting
company].
• Request is for entire report including any attached or accompanying
correspondence and is required as part of a lands-use clarification process at the
Municipal and Provincial level.
The requester is an incorporated ratepayers’ organization whose corporate objectives include the
conservation, protection and wise management of the natural resources in and around a bay in
Lake Superior. The organization is concerned about the possibility of adverse environmental
impacts of the proposed quarry. The organization includes individuals who live, work and own
property in the vicinity of the proposed quarry.
In representations to this office, the requester explained its reasons for seeking access to this
report:
From an early stage in the planning process, [the appellant] has raised concerns
about the potential environmental impacts of the proposed mining operations.
One of the most significant issues raised [by the appellant] relates to the potential
acid mine drainage from the proposed quarry into the adjacent Lake Superior.
This potential impact is a direct result of the geological characteristics of the
material to be mined. … [I]ron ore in the area of the subject lands are typically
associated with arsenic and sulphur which gives rise to potentially significant
health and environmental concerns. …Blasting and mining operations have the
potential to create both surface water, groundwater and air quality impacts
relating to the chemical composition of the rock to be mined.
…
The geological information contained in the report is likely to shed light on
whether or not these potential impacts are significant in the circumstances.
….
[I]t is the requesters’ intention in this case to review the geological data and
analysis contained in the record in the context of potential air and water quality
impact issues and to retain independent experts to assist in this review.
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[IPC Order PO-2399/June 9, 2005]
Initially, the Ministry issued a decision stating that it was unable to provide a decision on access
because the report was not in the custody or under the control of the Ministry. The requester
appealed that decision to this office (Appeal PA-030420-1). During the mediation stage of that
appeal, the Ministry revisited its decision that the record was not in its custody or control and
agreed to provide a decision on the access request. Appeal PA-030420-1 was then closed.
Before making a decision on the access request the Ministry notified the company for which the
report was prepared (the company, also referred to in representations from the Ministry and the
appellant as the third party) and asked for submissions as to whether the report should be
disclosed. The company provided submissions in a letter dated April 28, 2004 stating it did not
consent to releasing a copy of the report.
The Ministry subsequently issued a decision on the access request that denied access to the
requested report. The Ministry’s access decision stated:
Following third party notice and after careful consideration of representations
provided, I have decided to deny access to the report applying the exemptions
under sections 17 (1)(a), (b) and (c).
The report contains technical information supplied to the Ministry of Northern
Development and Mines (the Ministry) in confidence by the party. The release of
the technical information could significantly prejudice the third party’s
competitive position and if used cause considerable unnecessary cost to the third
party. Further, the information was provided to the Ministry voluntarily and the
third party has stated that if released would result in no further information being
volunteered to the Ministry.
The requester, now the appellant, appealed the decision to deny access and this office opened
Appeal PA-030420-2.
During the mediation stage of this appeal, the mediator contacted the both the appellant and the
Ministry to discuss the appeal. In discussions with the Ministry, the mediator noted that seven
attachments to the report referred to in the report as Figures 1-7 (which appear to be maps and
drill logs) were not sent to our office. The Ministry explained that it provided our office with the
report as it was received in its office. The Ministry stated that it never received a copy of
accompanying documentation, namely Figs. 1-7. These are therefore not in the Ministry’s
custody or control and are not at issue in this appeal.
No other issues were resolved through mediation. Accordingly, appeal entered the inquiry stage.
Initially, I sought the representations of the Ministry and the affected party. The Ministry
provided representations. The company advised that it did not intend to provide representations
but that it continued to object to the disclosure of the record. I then provided the appellant with a
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[IPC Order PO-2399/June 9, 2005]
copy of the Ministry’s representations and obtained representations from the appellant (through
its counsel) in response. As those representations appeared to claim that there is a strong public
interest in disclosing the record, I asked the appellant whether it intended to rely on section 23 of
the Act (the public interest override). The appellant stated that its position is that the record is
not subject to an exemption from disclosure; however, in the alternative, it took the position that
the record should be disclosed under section 23. The appellant provided representations in
support of the application of section 23. As the representations of the appellant contained facts
to which the Ministry should have an opportunity to reply, and addressed the new issue of the
application of section 23, I invited and received a reply from the Ministry to the two sets of
representations received from the appellant.
RECORDS:
The record at issue is a draft geological report on “Grid Geology” of the site of the proposed
quarry, dated August 16, 2003, prepared for the company by a geologist. It consists of an
eighteen-page geological report with a four-page appendix.
It should be noted that there is also a final report dated April 3, 2004. The appellant has received
a copy of the final report from the Ministry of the Environment pursuant to a request under the
Act. As a result, the only record at issue in this appeal is the draft report.
DISCUSSION:
ISSUES:
THIRD PARTY INFORMATION
Does the mandatory exemption at section 17 apply to the records?
As indicated earlier, the Ministry refused to disclose the draft report on the basis of the
exemption in section 17(1))(a), (b) and (c) of the Act.
Section 17(1) states, in part:
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;
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[IPC Order PO-2399/June 9, 2005]
(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; [or]
(c) result in undue loss or gain to any person, group, committee
or financial institution or agency;
Section 17(1) is designed to protect the confidential “informational assets” of businesses or other
organizations that provide information to government institutions. Although one of the central
purposes of the Act is to shed light on the operations of government, section 17(1) serves to limit
disclosure of confidential information of third parties that could be exploited by a competitor in
the marketplace [Orders PO-1805, PO-2018, PO-2184, MO-1706].
For section 17(1) to apply, the institution and/or the third party must satisfy each part 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
3. the prospect of disclosure of the record must give rise to a reasonable
expectation that one of the harms specified in paragraph (a), (b), (c) and/or
(d) of section 17(1) will occur.
Part 1: type of information
In its decision letter, the Ministry described the information in this report as “technical”. In its
representations, however, the Ministry changed its position and stated that the information was
“scientific” in nature. In its letter to the Ministry objecting to disclosure of the record, the
company claimed that the information in it was “technical information”.
The report contains information relating to the science of geology and in particular the geology
of specific land where the proposed quarry is to be constructed. The information includes
descriptions of the lithology (rock type) and mineralization found in the area of the proposed
quarry. The descriptions are the product of the observation of a professional geologist who is a
member of the Association of Professional Geoscientists of Ontario, made while mapping and
logging drill cores at the site. The report also describes the number and type of rock samples
collected and elements for which they would be analyzed.
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[IPC Order PO-2399/June 9, 2005]
The meaning of “scientific information” and “technical information” in section 17(1) has been
discussed in prior orders:
Scientific information is information belonging to an organized field of
knowledge in the natural, biological or social sciences, or mathematics. In
addition, for information to be characterized as scientific, it must relate to the
observation and testing of a specific hypothesis or conclusion and be undertaken
by an expert in the field [Order PO-2010].
Technical information is information belonging to an organized field of
knowledge that would fall under the general categories of applied sciences or
mechanical arts. Examples of these fields include architecture, engineering or
electronics. While it is difficult to define technical information in a precise
fashion, it will usually involve information prepared by a professional in the field
and describe the construction, operation or maintenance of a structure, process,
equipment or thing [Order PO-2010].
The Ministry explained that it abandoned its position that the information is “technical” because
the information does not describe the construction, operation or maintenance of a structure,
process, equipment or thing – a component of the definition of “technical information” adopted
in past orders of this office.
Instead, the Ministry argued the information is “scientific information” under a broader
definition of “scientific” than the one adopted by this office. The Ministry argued that the
definition of “scientific information” developed by this office, which says that the information
must relate to the testing of a specific hypothesis, is unreasonably narrow. The Ministry argued
that the testing of a hypothesis is not determinative of whether information is scientific:
The requirement of a specific hypothesis being tested appears instead to be a part
of the scientific method, which only tests a specific hypothesis as a final step in
the process. One must first identify a problem, then gather observations and
experiment to come up with a hypothesis, which is then tested by further
experimentation and observation. … The description of a method of investigation
should not be used to restrict the meaning of what is “scientific information”.
Surely experimentation, observation, testing and analysis by a scientist for
scientific purposes is “scientific information”.
The Ministry argues that there are dictionary definitions of the word “scientific” which do not
contain a requirement that a specific hypothesis be tested for something to be “scientific”.
The appellant argues that the information is neither scientific nor technical. It is not scientific
because it does not relate to observation and testing of a specific hypothesis or conclusion, and it
is not technical because it does describe the construction, operation or maintenance of a
structure, process, equipment or thing.
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[IPC Order PO-2399/June 9, 2005]
Analysis and Findings
In my view, the information that I have described above is technical, and it is therefore not
necessary to consider whether it is also scientific. The technical information is found in the first
and second (unnumbered) pages, all but the last paragraph of page 5, pages 7 and 8, all but the
first paragraph of page 11, pages 12 to 16, the first three lines of page 17, and the last three
unnumbered pages (pages 20 to 22).
The information is technical because it belongs to an organized field of knowledge, geology,
which is an applied science, and has been prepared by a professional in the field. While this
office has said that technical information will usually describe the construction, operation or
maintenance of a structure, process, equipment or thing, technical information is not limited to
such information.
In addition to this technical information, the record contains other information that does not
relate to the science of geology, such as directions to the proposed quarry site, descriptions of
vegetation, and a history of development of the area. Although the Ministry opposes disclosure
of the entire report under section 17(1), the Ministry makes no claim that this is technical or
scientific information. The information that is not technical or scientific is found on the cover
page, pages 3 and 4, the last paragraph of page 5, page 6, pages 9 and 10, the first paragraph of
page 11, all but the first three lines of page 17, and pages 18 and 19. This information does not
meet the first part of the test for exemption under section 17(1).
I find that the following information is “technical information” and therefore meets the first part
of the test for exemption under section 17(1): The first and second (unnumbered) pages, all but
the last paragraph of page 5, pages 7 and 8, all but the first paragraph of page 11, pages 12 to 16,
the first three lines of page 17, and the last three unnumbered pages (pages 20 to 22).
Part 2: supplied in confidence
Supplied
The requirement that it be shown that the information was “supplied” to the institution reflects
the purpose in section 17(1) of protecting the informational assets of third parties [Order MO-
1706].
Information may qualify as “supplied” if it was directly supplied to an institution by a third
party, or where its disclosure would reveal or permit the drawing of accurate inferences with
respect to information supplied by a third party [Orders PO-2020, PO-2043].
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[IPC Order PO-2399/June 9, 2005]
The appellant does not dispute that the information was supplied directly to the Ministry by the
company. Based on my review of the record and representations, I find that the information was
“supplied” to the Ministry.
In confidence
In order to satisfy the “in confidence” component of part two, the parties resisting disclosure
must establish that the supplier had a reasonable expectation of confidentiality, implicit or
explicit, at the time the information was provided. This expectation must have an objective basis
[Order PO-2020].
In determining whether an expectation of confidentiality is based on reasonable and objective
grounds, it is necessary to consider all the circumstances of the case, including whether the
information was:
• communicated to the institution on the basis that it was confidential and that it
was to be kept confidential
• treated consistently in a manner that indicates a concern for its protection from
disclosure by the affected person prior to being communicated to the government
organization
• not otherwise disclosed or available from sources to which the public has access
• prepared for a purpose that would not entail disclosure [Order PO-2043]
Representations, analysis and findings
The Ministry acknowledges that any expectation of confidentiality was implicit rather than
explicit. The onus is on the Ministry and the company to establish that there was an implicit
expectation of confidentiality.
In its letter to the Ministry objecting to disclosure, the company stated, “The information was
supplied for the Government’s use only”. As stated earlier, the company provided no
representations in this appeal.
The Ministry’s representations in support of its position on this issue describe a regime in which
District Geologists employed by the Ministry are responsible for building up the province’s
database of geological resources. In certain situations, they have legal authority to enter land for
this purpose, and in other circumstances, operators or their consultants have a duty to provide
geological reports. However, in some circumstances, such as the present one, the Ministry must
rely upon voluntary cooperation from the private sector to carry out this function. In return for
this voluntary cooperation, the Ministry’s longstanding practice is to keep this information
confidential.
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[IPC Order PO-2399/June 9, 2005]
The Ministry describes this system as follows:
The role of a District Geologist is to provide professional geological information
services to the public, the mineral industry and the ministry itself, in support of
the Resident Geologist Program. The geologist collects, reviews and interprets
geological data for the maintenance of geoscience databases, and for the
preparation of geoscience maps and reports for in-office use and for ministry
publications. The information is acquired through the compilation of information
from various public sources; field observations acquired from visits to active and
inactive mining properties and field observations acquired from visits to other
greenstone belts in the province.
The information is used by the ministry to extrapolate onto adjacent or similar
properties that may not have outcrops (where rock is at or above the surface of the
ground) from which direct observations can be made. This is the fashion in which
the provincial geological knowledge is built.
The Ministry states that third parties provide geological data in order to obtain advice on their
properties, because they know that the provincial geologists are interested in the results of work
conducted on various properties, and because they know that the information will be held in
confidence.
Even under these circumstances, the expectation of confidence is modified by the Ministry’s
duty to notify the relevant authorities if there is a risk to the public related to a development, a
duty acknowledged on page 5 of the Ministry’s December 8, 2004 representations.
The Ministry submits that it received the draft report as part of this general information-gathering
regime rather than in relation to any function of commenting on the company’s quarry proposal
or in relation to any approval process, and therefore, the confidentiality expectations within the
regime described above apply to the supply of this report.
It may or may not be the case that information supplied to District Geologists in the context of
the regime described above is subject to a reasonable expectation of confidentiality. However, I
do not accept the Ministry’s characterization of the circumstances in which this information was
provided.
In this case, the company supplied information to the Ministry to further a specific process
requiring government approval, in which the Ministry played a formal role, and involving public
consultations. According to the Ministry’s representations, the information was provided to the
Ministry in response to a recommendation made by the District Geologist in a letter to the
company dated March 13, 2003. The District geologist recommended that the company obtain
this information and provide it to the public. The company had sent an information package
relating to its quarry proposal to the Township where the proposed quarry would be located and
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[IPC Order PO-2399/June 9, 2005]
to several government agencies in January of 2003, identifying that it would need an approval
under the Planning Act, and, it appears from the representations, under the Municipal Act as well
(although I have been provided with no information about how the Municipal Act applies). The
Ministry acknowledges that its functions include making comments to the Ministry of Municipal
Affairs and Housing regarding Planning Act approvals.
The Ministry states,
The stated purpose of the information package was to move forward the third
party’s surface mining operations project (quarry) for [the named] Harbour. The
information package was prepared as part of the process for a Class “A” Licence
for a Quarry Operation Above Groundwater (these licences are issued by MNR
[Ministry of Natural Resources]. The third party came to the conclusion that the
only overarching legislation that applied to its proposed development was the
Planning Act and the Municipal Act (both administered by the Ministry of
Municipal Affairs and Housing. [Emphasis added].
…
In this case, the geologist noted [in her letter of March 13, 2003] that the
information package did not deal at all with the geology of the proposed quarry,
and since the whole proposal depended on the mineral resources, in her opinion it
was critical that a basic geological report be done. It would also assist the
company when it came time to answer questions from the public and various
government agencies. As a result of comments the geologist had heard at a
couple of public information sessions, and questions the geologist had answered
in an informal one-on-one fashion with members of the public, it was apparent
that the public did not even have a basic understanding of what material would be
quarried. [Emphasis added]
The Ministry also states:
The [Ministry] geologist anticipated opposition to the quarry development and
while she did not anticipate any significant acid mine drainage problems from the
site, she felt it was important that the company investigate this possibility.
It is clear that the Ministry required this information to permit it to carry out its functions during
the approval process under the Planning Act. It is also clear that one reason the Ministry
recommended that the company provide the information in the draft report was to determine
whether the proposed quarry would endanger public health or the environment. In its
representations, the Ministry stated:
[T]he ministry’s District Geologist (‘the geologist’) made a recommendation to
the third party to obtain background geological data on the proposed quarry site.
- 10 -
[IPC Order PO-2399/June 9, 2005]
…
The material could have been acid generating, mercury generating or unsuitable
for the end purpose. By thoroughly investigating its resource, the proponent
would have a much better idea of the size of its potential resource and any
possible detrimental environmental effects that might arise from the operation.
(Emphasis added).
Thus, it is clear that the information was provided to the Ministry as a result of the Ministry’s
response to an invitation from the company to comment on a proposal to establish a quarry under
the Planning Act, which mandates public consultation. It is clear that the Ministry invited the
company to supply this particular information not only to satisfy its own information needs, but
also the information needs of the public during this regulatory process. It is also clear that the
Ministry communicated to the company its expectation that the information would be
communicated to the public in its letter dated March 13, 2003. Although the Ministry did not
have a direct regulatory role in this process, it is clear from other submissions of the Ministry
that its role included making comments on this proposal to the Ministry of Municipal Affairs and
Housing in relation to the Planning Act process, and making comments to the Ministry of the
Environment in relation to another regulatory process, namely, deciding whether to designate the
proposal under the Environmental Assessment Act.
In fact, the company itself used the information in the draft report for the purpose of public
consultation, as envisioned by the Ministry and the company. The draft report was prepared on
August 16, 2003. On October 1, 2003, the company held a public meeting to discuss its
proposal. At a public meeting mandated by the Planning Act, held by the Township on October
7, 2003, according to the following representations of the appellant, which are uncontradicted,
the appellant “first became aware of the existence of the [draft] geological report”:
The geological report was referenced by the representatives of the third party in
oral submissions at a public meeting held at the community centre with respect to
the third party’s application for rezoning of the site to permit the proposed quarry.
…
During the public meeting, the representatives of the third party company referred
to the report and provided findings of the report to the Township of Michipicoten.
The information provided orally by representatives of the third party at the public
meeting included assurances that, based on the geological investigations
conducted, the rock was “acid consuming”. Based on this, the third party
company submitted that there was no potential for acid mine drainage, a
previously stated concern of our client group.
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[IPC Order PO-2399/June 9, 2005]
The fact that a draft of a report is prepared in the course of a public consultation process does not
necessarily mean that there is an expectation that the draft will be available to the public,
although the public nature of the process may be a relevant consideration in determining whether
there is an expectation of confidentiality.
I have taken into account the fact that similar geological information is often provided to the
District Geologists at the Ministry in the context of an implicit understanding that it will be kept
confidential. This is a factor that favours a finding of a reasonable expectation of confidentiality.
However, this must be balanced against other evidence that does not support such a finding.
First, I agree with the appellant that, “The information contained in the report describes
environmental conditions that may have relevance to matters of environmental and public
safety.” This is a factor that weighs against confidentiality, because in the circumstances the
company and the Ministry were both aware (as acknowledged in the representations and
correspondence reproduced above) that there was a public expectation to receive any information
the company generated about possible acid and mercury generation during the land use planning
process.
Not only were the Ministry and the company aware of a public expectation to have this
information during the planning process, but the circumstances in which this report was
prepared suggest that both the Ministry and the company intended that the information in it
would be conveyed to the public. At page 19 of its May 26, 2005 representations, the Ministry
states that, “The geologist’s intention in recommending the completion of a geological
assessment was that the company could use the information in its various public information
sessions and during the course of its quarry development”.
The Ministry states that it “did not anticipate that the draft report would become public as part of
any approvals process; rather the final version of the report would be relied upon if the report
were to be used in any such process” [Emphasis in original]. However, the company had
informed the Ministry as early as January 2003 that its proposal was subject to the Planning Act
and crucial meetings regarding decisions under that Act which were prerequisites to approval of
the project were taking place in October of 2003. Therefore, it is not likely that the Ministry or
the company expected that the information in the draft would be released only when the final
report was ready in April of 2004. By that time the zoning and official plan amendment decisions
required under the Planning Act would be made by the Township.
Most importantly, the appellant’s description of the information disclosed at the October 7, 2003
public meeting by the company is consistent with the kind of information found in the draft
report and the company acknowledged that it came from the draft report. The company’s
conduct in disclosing this information at a public meeting is inconsistent with an expectation of
confidentiality.
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[IPC Order PO-2399/June 9, 2005]
Accordingly, I find that the Ministry and the company have not met their onus of establishing an
expectation of confidentiality through detailed and convincing evidence, and I find that this part
of the test for exemption under section 17(1) has not been met.
In conclusion, the technical information in the report does not satisfy part 2 of the test for
exemption under section 17(1). Therefore, it is not exempt from disclosure. Nevertheless, I will
consider part 3 of the test.
Part 3: harms
General principles
To meet this part of the test, the institution and/or the third party must provide “detailed and
convincing” evidence to establish a “reasonable expectation of harm”. Evidence amounting to
speculation of possible harm is not sufficient [Ontario (Workers’ Compensation Board) v.
Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)].
The failure of a party resisting disclosure to provide detailed and convincing evidence will not
necessarily defeat the claim for exemption where harm can be inferred from other circumstances.
However, only in exceptional circumstances would such a determination be made on the basis of
anything other than the records at issue and the evidence provided by a party in discharging its
onus [Order PO-2020].
Section 17(1)(a): prejudice to competitive position/Section 17(1)(c): undue loss or gain
In its letter to the Ministry, the company stated that disclosure “could significantly prejudice our
competitive position, result in misuse by the appellant and thereby cause unnecessary cost to the
company”. The only specific harm from disclosure identified by the company in its letter to the
Ministry is the possibility that the citizens’ group may take information from the report and use it
in their “campaign to have this project designated under the Environmental Assessment Act” or
their efforts to “stop the project”. In my view, the possibility that information in the draft report
could be taken out of context is not a serious concern, as the company, which has the whole
report, can always provide the context, and as the final report, which is very similar, is already
accessible. Moreover, as I stated in Order MO-1914, informed discussion and debate in a
democratic country is not in itself a harm covered by section 17(1).
In its representations, the Ministry very fairly acknowledges that, “with respect to the third
party’s competitive position and undue loss, the third party is in a better position to provide
information on these issues”. As indicated earlier, the company chose not to provide
representations.
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[IPC Order PO-2399/June 9, 2005]
As the Ministry makes the same representations in regard to both subsection (a) and subsection
(c), I will address them together. The Ministry’s representations on this issue include the
following:
The record contains information specific to the mineral resources on the property
that are not disclosed elsewhere or available in the public domain.
I disagree. I have carefully reviewed the contents of the draft and final reports. Virtually all the
information in the draft report about the nature of the mineral resource on the property is also in
the final report, which has been disclosed under the Act by the Ministry of the Environment.
The Ministry goes on to elaborate on ways in which knowledge of the exact type of mineralogy
in the rock could give competitors an advantage. I find two weaknesses in these arguments.
First, as noted above, the information about mineralogy in the draft report is also in the final
report, which has previously been disclosed under the Act. The Ministry does not identify any
mineralogical information in the draft report that is not also in the final report. Indeed, the
Ministry stated in its March 26, 2005 representations that, “the draft report would not provide the
appellant any more information than it already has”. Therefore, there is insufficient evidence
that disclosing the draft report will disclose any information that is not already available to
potential competitors.
Secondly, the Ministry acknowledges that although prior to the analysis done for the draft and
final reports there was little information available about the specific geology of the company’s
property, there is a substantial amount of geological information available to the public about the
geology of surrounding properties. In its representations, the Ministry submitted that the
geological information that it obtains about one property allows it to extrapolate onto adjacent or
similar properties that may not have outcrops (where rock is at or above the surface of the
ground) from which direct observations can be made. Thus, the Ministry, having geological
information about both the subject property and surrounding areas, would be in a position to
advise me if there is something special about the geology of the proposed quarry which should
not be revealed to potential competitors. The Ministry’s arguments may be valid if the geology
of the company’s property is substantially different from the geology of the surrounding areas
that is already available to competitors. However, the Ministry has not provided any evidence of
this.
The Ministry repeatedly makes the point that the geological information in the draft report is
“proprietary”. However, the Ministry also states that one of its own geologists was present on
the site and made geological observations that have been entered into the Ministry’s publicly
available database. The Ministry does not suggest that this information is different from the
information in the draft report which it claims is proprietary. I am unable to accept the bald
statement that the geological information in the draft report is proprietary in the absence of any
specific evidence to support it. Moreover, even if the information were proprietary, this relates
to the first part of the section 17(1) test and does alone support a finding that its disclosure could
reasonably be expected to result in the harms addressed in sections 17(a) and (c).
- 14 -
[IPC Order PO-2399/June 9, 2005]
I find that these harms have not been established and sections 17(1)(a) and (c) do not apply.
Section 17(1)(b): similar information no longer supplied
In its response to the Ministry, the company stated, “The information that was supplied was not
required to be submitted by legislation and if released will result in no further information being
volunteered by this company”. Other than this rather self-serving bald statement, the company
has not addressed this issue.
The Ministry states:
Confidential information is frequently made available to employees of the
Ministry. The information is propriety and constitutes and “informational asset”
of the third party supplier, yet it is freely given with either explicit or implicit
understanding that the material is to be kept confidential, based on the ministry’s
long-standing practice. The public release of this information would send a clear
message to entire industry that the ministry cannot be trusted to keep the
information confidential. This would destroy the 50-year relationship with
respect to information exchanges between the ministry and its industry
stakeholders and there is a reasonable expectation that such geological
information would no longer be supplied to the ministry.
Without further information, explanation or authority, I cannot accept the Ministry’s claim that
the information about rocks and soil that it receives from a variety of sources is necessarily
“proprietary”. From its representations, it appears that the Ministry collects a wide variety of
geological data, and while some of it may be proprietary, I suspect a great deal of it is not.
Moreover, even if this data is proprietary, this relates to part 1 of the section 17(1) test and does
not in itself established that disclosure could reasonably be expected to result in similar
information no longer being supplied.
I accept that there is a public interest in the Ministry continuing to receive the kind of
information that it received in this case.
However, I am not persuaded by the Ministry’s representations that disclosure of this particular
information would undermine the relationship between the Ministry and its industry
stakeholders. As I have stated above, this situation is not similar to the regime in which this
understanding of confidentiality in return for information generally operates. Rather, this is a
case where, in the face of substantial public concern about its proposal, the proponent of a quarry
sought the Ministry’s support. The Ministry pointed out what it considered to be major
deficiencies in the information provided and was not prepared to support the proposal without
being provided with this information. Even though the company had no statutory duty to provide
information, the circumstances gave it a strong incentive to do so.
- 15 -
[IPC Order PO-2399/June 9, 2005]
I am not satisfied that in similar circumstances proponents will not provide similar information in
future. As the appellant pointed out, the Ministry has outlined a number of substantial benefits to
aggregate companies in submitting geological information, including:
• an opportunity for claim holders to obtain expert advice on their properties; and
• to obtain comments from MNDM that may assist them in various statutory approvals
processes.
I find that the Ministry and the company have not provided detailed and convincing evidence
that any of the harms in part 3 of the test could reasonably be expected as a result of disclosure of
the geological information in the draft report.
I find, therefore, that none of the information in the draft report is exempt under section 17(1).
Although I am ordering disclosure of the record on the basis that section 17(1) does not apply, I
feel, as did Senior Adjudicator David Goodis in Order PO-1688, that it would be useful in the
circumstances to make a finding on the public interest override in section 23 of the Act, below.
PUBLIC INTEREST OVERRIDE
Issue B: Is there a compelling public interest in disclosure of the records that clearly
outweighs the purpose of the section 17(1) exemption?
As indicated above, the draft report describes the nature of the geology on the site of the
proposed quarry and observations and analysis of that quarry designed to determine whether
quarrying of the rock could result in contamination of Lake Superior. The report also contains
recommendations for further work to determine this.
In its initial representations, the appellant submitted that to meet the public interest objectives of
the Planning Act and Aggregate Resources Act, the geological information and analysis in the
draft report should be made available for public review. The appellant stated that there is a
“public interest in disclosure of [this] scientific information”.
In my view, this raises a question of whether there is a compelling public interest in disclosure of
the records that clearly outweighs the purpose of the section 17(1) exemption and brings the draft
report within section 23 of the Act.
Section 23 states:
An exemption from disclosure of a record under sections 13, 15, 17, 18, 20, 21
and 21.1 does not apply where a compelling public interest in the disclosure of the
record clearly outweighs the purpose of the exemption.
- 16 -
[IPC Order PO-2399/June 9, 2005]
For section 23 to apply, two requirements must be met. First, there must be a compelling public
interest in disclosure of the records. Second, this interest must clearly outweigh the purpose of
the exemption.
Compelling public interest
In considering whether there is a “public interest” in disclosure of the record, the first question to
ask is whether there is a relationship between the record and the Act’s central purpose of
shedding light on the operations of government [Order P-984]. Previous orders have stated that
in order to find a compelling public interest in disclosure, the information in the record must
serve the purpose of informing the citizenry about the activities of their government, adding in
some way to the information the public has to make effective use of the means of expressing
public opinion or to make political choices [Order P-984].
A public interest does not exist where the interests being advanced are essentially private in
nature [Orders P-12, P-347, P-1439]. Where a private interest in disclosure raises issues of more
general application, a public interest may be found to exist [Order MO-1564].
A public interest is not automatically established where the requester is a member of the media
[Orders M-773, M-1074].
The word “compelling” has been defined in previous orders as “rousing strong interest or
attention” [Order P-984].
Any public interest in non-disclosure that may exist also must be considered [Ontario Hydro v.
Ontario (Information and Privacy Commissioner), [1996] O.J. No. 4636 (Div. Ct.)].
A compelling public interest has been found to exist where, for example:
• the records relate to the economic impact of Quebec separation [Order P-1398,
upheld on judicial review in Ontario (Ministry of Finance) v. Ontario
(Information and Privacy Commissioner), [1999] O.J. No. 488 (C.A.)]
• the integrity of the criminal justice system has been called into question [Order P-
1779]
• public safety issues relating to the operation of nuclear facilities have been raised
[Order P-1190, upheld on judicial review in Ontario Hydro v. Ontario
(Information and Privacy Commissioner), [1996] O.J. No. 4636 (Div. Ct.), leave
to appeal refused [1997] O.J. No. 694 (C.A.), Order PO-1805]
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[IPC Order PO-2399/June 9, 2005]
• disclosure would shed light on the safe operation of petrochemical facilities
[Order P-1175] or the province’s ability to prepare for a nuclear emergency
[Order P-901]
• the records contain information about contributions to municipal election
campaigns [Gombu v. Ontario (Assistant Information and Privacy Commissioner)
(2002), 59 O.R. (3d) 773]
A compelling public interest has been found not to exist where, for example:
• another public process or forum has been established to address public interest
considerations [Orders P-123/124, P-391, M-539]
• a significant amount of information has already been disclosed and this is
adequate to address any public interest considerations [Orders P-532, P-568]
• a court process provides an alternative disclosure mechanism, and the reason for
the request is to obtain records for a civil or criminal proceeding [Orders M-249,
M-317]
• there has already been wide public coverage or debate of the issue, and the
records would not shed further light on the matter [Order P-613]
Purpose of the exemption
The existence of a compelling public interest is not sufficient to trigger disclosure under section
23. This interest must also clearly outweigh the purpose of the established exemption claim in
the specific circumstances.
Representations, Analysis and Findings
I will first consider whether there is a public interest in disclosure of the draft report, and, if so,
whether it is compelling.
The appellant’s representations state,
A public interest can be demonstrated if the record adds to the information
available to the public to participate in democratic processes.
In this case, it is submitted, the fundamental elements of the record driving the
public interest to disclose relate to the potential environmental impacts of the
proposed mining project. The record contains geological and geochemical
information about the potential existence of contaminants such as arsenic and
- 18 -
[IPC Order PO-2399/June 9, 2005]
sulphur in the material that is to be mined through blasting and stored on the
subject property.
One of [the appellant’s] longstanding concerns with the project has been the
potentially significant impacts of sulphide bearing rocks, both to air quality and
surface and groundwater quality in the vicinity of the proposed quarry. The
Ontario Ministry of the Environment (MOE), in a letter dated February 2,
2005…identified significant environmentally (sic) concerns with the project.
In fact, I note that in providing comments to the MMAH on the official plan and zoning
amendments needed for the proposed quarry to proceed in this February 2, 2005 letter, the
Ministry of the Environment stated that it did not support the official plan amendment.
Specifically in regard to the concerns raised by the appellant, the MOE stated that the [final]
geology report and investigations are representative of a small portion of the total proposed
quarry development and with much of the proposed quarry not having been investigated in
detail, there remains a possibility that more significant quantities of sulphide bearing rocks could
be found.
The appellant stated:
The [appellant] is seeking an opportunity to review all available information on
the extent and chemical composition of sulphide bearing rocks on the proposed
site and, through professional environmental review, to assess the potential
impacts of mining this rock on a large scale, and the adequacy of proposed
mitigation measures.
The appellant states that the Ministry has not made the draft report available to other government
agencies that are required to provide comment on or make a decision on the approval of the
proposed quarry. Relevant agencies that have not received the draft report include the MOE, the
MMAH, the MNR, and the Township. “This raises a fundamental public interest concern about
the adequacy of the government review process in the absence of access to the record by all
relevant agencies”.
The appellant submits that disclosure is in the public interest for the following reasons:
• It appears that two and possibly more government agencies could be
influenced by the references by MNDM and the third party company to
the data which is the subject of the record;
• Disclosure of the record will shed light on the operations of government
by providing an opportunity for the public to assess the adequacy of
reviews by MOE, MNDM, and other government agencies with respect to
the potential environmental concerns of the proposed mining project;
- 19 -
[IPC Order PO-2399/June 9, 2005]
• Disclosure of the record serves the purpose of informing the public about
the adequacy of the review process and the sharing of information
between government agencies with respect to a matter of potential
environmental concern;
• Disclosure of the record provides the only available means for members of
the public to assess the government decision-making process on this issue
and adds, in an essential way, to the information available to the public to
express its concerns about decisions to be made with respect to the
proposed quarry application.
I agree with the representations of the appellant set out above. I find that they are amply
supported by the evidence in this case, including the contents of the draft and final reports and by
this office’s past interpretations of the term “public interest”.
As noted above, the proposal was originally subject to requirements under the Planning Act, but
not the Aggregate Resources Act (ARA), which regulates the establishment and operation of rock
quarries in Ontario. The reason for this is that the ARA does not apply in Northern Ontario. In
the summer of 2004, the proposal was designated under the ARA, despite this. The Ministry
states, “This designation was unprecedented; the first time privately-held land in northern
Ontario had been designated”. Although the Ministry does not state the reason for this departure
from the usual regulatory regime, it is clear that there was strong and widespread public interest
in this proposal. The unprecedented designation under the ARA, despite a government policy
against making private property in northern Ontario subject to this statute, is strong evidence of
public interest in information about the proposed quarry. The purposes of the ARA are:
• To provide for the management of the aggregate resources of Ontario
• To control and regulate aggregate operations on Crown and private lands
• To require the rehabilitation of land from which aggregate has been excavated; and
• To minimize adverse impact on the environment in respect of aggregate operations.
Section 12 of the ARA provides that in considering whether to issue a quarrying licence, the
Minister of Natural Resources and the Ontario Municipal Board must consider, among other
things, the effect of the operation on the environment and on nearby communities, effects on
ground and surface water resources, and planning and land use considerations.
The Ministry states that the Ministry of the Environment received 5734 public comments on a
proposal to designate the proposed quarry for review under the Environmental Assessment Act.
To put this in perspective, the 2001 population of the Township in which the property is located
was 3,668. This is also strong evidence of a public interest.
- 20 -
[IPC Order PO-2399/June 9, 2005]
In its representations, the Ministry alleges there is no public interest in the disclosure of the
records for reasons that may be summarized as follows:
• The draft report relates to a proposed quarrying operation, not to a mining
operation as claimed by the appellant throughout its representations;
• The Ministry’s input and the October 7, 2003 public meeting were for “land use
planning purposes and therefore did not discuss site-specific geology or any
potential for acid drainage”. The environmental issues of concern to the appellant
and addressed in the draft report are dealt with in different processes – those
under the ARA and the Environmental Assessment Act;
• The draft report was not provided to the Ministry or used by the Ministry in
relation to government licensing, regulatory or approval process. The Ministry
has no regulatory responsibility for quarries;
• The interest in disclosure is that of the appellant alone, which is not a “public
interest”;
• The draft report “would not provide the appellant any more information than it
already has”, since there is already significant publicly available information on
the nature of the bedrock resources in the area and since the information in the
draft report is all found in the final report, which the appellant already has;
• The appellant has received or will receive all the information it requires to
participate in public discussion of the proposed quarry through other public
information sessions and regulatory processes referred to earlier in this order.
I do not agree with the Ministry’s representations on this issue for the following reasons:
The fact that the appellant refers to the proposed process as “mining” rather than “quarrying”
does not affect the credibility of the appellant or reduce the importance of its concerns. Acid
drainage, a concern of the appellant, is a potential result of both mining and quarrying. The
Mining Act defines “mining lands” and “mining rights” in terms that include “quarry and pit
material” and the purpose of the Act is to regulate “mineral resources”, a term which includes
quarry and pit materials. Operators of pits and quarries regulated by the Ministry of Natural
Resources under the Aggregate Resources Act are required to provide geological information to
the Minister of Northern Development and Mines under the Mining Act. Similarly, the
Aggregate Resources Act refers to underground extraction of aggregate (i.e., rock) as “mining”.
Although “mining” and “quarrying” are not identical, the terms are somewhat interchangeable.
The Ministry’s submission trivializes the importance of the issues raised by the appellant.
I disagree with the Ministry’s position that there is no public interest in disclosure of the
information in the draft report about potential impact on the environment because the
- 21 -
[IPC Order PO-2399/June 9, 2005]
information was generated in the course of a land use planning process rather than in the process
of approving the quarry under the Aggregate Resources Act or the Environmental Assessment
Act.
This proposition is based on an artificial distinction between land use planning and
environmental protection that is not consistent with Ontario government policy or jurisprudence.
Environmental protection is recognized in the Planning Act as an integral component of the land
use planning process: Planning Act, s. 1.1(a), s. 16; Re Westminster (Township) and London
(City) (1975), 5 O.R. (2d) 401 (Div. Ct.).
I disagree with the Ministry’s assertion that the draft report was not provided to or used by the
Ministry in relation to government licensing, regulatory or approval processes. As discussed
above, in my view when the company provided the draft report to the Ministry it was in the
context of a legislated planning approval process in which the Ministry has a formal commenting
role intended to influence the outcome of that approval process. The fact that the Ministry has
no regulatory responsibility for quarries does not mean that there is no public interest in the
manner in which it carries out this commenting function.
I do not agree that the interest in disclosure is that of the appellant alone, and is therefore not a
“public interest”. This issue was addressed by Senior Adjudicator David Goodis in Order PO-
1688, the facts of which are similar to this case:
In my view, there is a public interest in the disclosure of the record at issue in this
case. The requester and the requester’s engineer have stated, and I accept, that
release of this record is required in order to conduct a technical review of the
material submitted …in support of the proposal which, in turn, is required in order
to make meaningful submissions to the Ministry on whether or not it should grant
the appellant’s application for a certificate of approval. Although the requester
clearly has a personal, private interest in making submissions on the appellant’s
proposal, the appellant’s interest also coincides with a greater public interest of
the community surrounding the appellant’s plant and the general public as a
whole. …
The public has an interest, from the perspective of protecting the natural
environment and protecting public health and safety, in seeing that the Ministry
conducts a full and fair assessment before deciding whether or not to grant the
appellant a certificate of approval to discharge air emissions into the natural
environment. This necessarily entails disclosure of the relevant data contained in
the record. In addition, the public has an interest in knowing the extent to which
the appellant’s proposal…will impact the environment.
In my view, the public interest in this case is the interest in ensuring the integrity of the various
legislated planning and approval processes and public consultation processes in relation to a
serious public concern – the protection of the environment and public health.
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[IPC Order PO-2399/June 9, 2005]
Having compared the contents of the draft report with the final report, which the appellant
already has, I disagree with the Ministry’s assertion that the draft report “would not provide the
appellant any more information than it already has”. The Ministry gives two reasons for this.
First, there is already significant publicly available information on the nature of the bedrock
resources in the area; second, the information in the draft report is all found in the final report,
which the appellant already has.
The Ministry’s statement that the publicly available information about the geology of
surrounding areas is adequate to describe the geology of the proposed quarry is incompatible
with its position that the information in the draft report deserves special protection because it is
“proprietary”. As stated earlier, this implies that there are important differences between the
publicly available information and the information in the draft report and contradicts the
proposition that the appellant can rely on the available information about other properties. Given
these apparently conflicting positions, I am not in a position to find that all the geological
information in the draft report is also available from other public sources.
Of greater importance is the fact that there appear to be some differences between the
information in the draft and final reports, and at least one of them appears to me to be potentially
significant. I do agree with the Ministry that almost all the information in the draft report is also
in the final report. However, there are a few areas where the information in the draft report
differs from the final report. I have noted differences between the wording of page 13 of the
draft report and similar text in page 8 of the final report; between page 15 of the draft report and
page 11 of the final one; and between page 16 of the draft report and pages 11 to 12 of the final
report. Although these differences in wording may not be significant, in my view it is in the
public interest to provide the appellant with an opportunity to retain an expert, as I accept that it
intends to do, to evaluate whether these differences are important.
Apart from the differences in wording mentioned above, a recommendation on page 16 of the
draft report that appears to directly relate to the environmental concerns raised by the appellant
and by the Ministry of the Environment appears to be absent from the final report. This would
be understandable if that recommendation had been implemented before the final report was
drafted and therefore became redundant, but I find no evidence in the final report that this
recommendation had been implemented.
In my view, there is a public interest in disclosure of this recommendation to permit assessment
of its significance by an expert. The public interest here relates to the desirability of public
scrutiny of government decision-making processes.
I do not agree that the appellant has received or will receive all the information it requires to
participate in public discussion of the proposed quarry through other public information sessions
and regulatory processes referred to earlier in this order. The submissions and evidence before
me indicate that none of the regulatory processes and public consultation processes to date have
resulted in the disclosure of the draft report or of the existence of the recommendation referred to
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[IPC Order PO-2399/June 9, 2005]
above, which, as I have stated, appears to me to be potentially important in analysing the
environmental issues arising out of the quarry proposal.
Although there is a possibility that differences between the draft and final reports will ultimately
be revealed through hearings of the Ontario Municipal Board, in my view it is in the public
interest not to leave the question of disclosure to the uncertainties of future proceedings in the
circumstances of this case.
Having found that there is a public interest in the disclosure of the record, I turn to the question
of whether this public interest is compelling.
In my view, the public interest is compelling. As stated earlier, the word “compelling” has been
defined in previous orders as “rousing strong interest or attention”.
As McEachern C.J.S.C. said in Delgamuuk v. British Columbia (1988), 55 D.L.R. (4th) 73
(BCSC):
[E]xperience has demonstrated that some experts have been shown to be
advocates rather than independent, impartial, objective professionals. …It is no
longer possible to assume that all expert witnesses, including many professionals,
are impartial and independent. Some still qualify for that description, but others
are fully participating members in the litigation team of a party to litigation and
still others, as I have said, are advocates for the side which employs them.
Since Delgamuuk, a number of courts have expressed similar concerns. See for example,
Perricone v. Baldassarra, [1994] O.J. 2199 (OCGD).
While Chief Justice McEachern’s comments refer to expert witnesses, they are also true of
consultants who prepare reports for use in influencing government approval authorities. One of
the ways some consultants put the interests of their clients above their professional integrity is by
changing draft reports that contain their true professional views, so that the final version is more
acceptable to the client.
I want to make it clear that I am not implying that the company or its consultant have done
anything improper or inappropriate in this case. However, the fact that such behaviour does
occur, together with the particular nature of the changes between the draft report and the final
report, the nature of the environmental concerns to which these changes relate, and the
importance of safeguarding the integrity of the public consultation and regulatory processes,
make the public interest in disclosure of the draft report so that an expert independent of both
government and the proponent can provide independent analysis, a compelling one.
It remains to consider whether there is also a compelling public interest in non-disclosure of the
draft report and whether the public interest in disclosure clearly outweighs the purpose of the
section 17(1) exemption. As recognized by Senior Adjudicator Goodis in Order PO-1688, the
- 24 -
[IPC Order PO-2399/June 9, 2005]
public interest in protecting business interests is an important one; however, this interest may be
outweighed by the public interest in disclosing records for the purposes of advancing fairness
and comprehensiveness of environmental approval processes, informing the public about the
potential effects should approvals be granted, and ultimately enhancing environmental protection
and public health and safety. The importance of these public interests is articulated in a number
of decisions of the Supreme Court of Canada cited in Order PO-1688. More recently, that Court
reiterated in the Spraytech case that “collectively we are responsible for preserving the natural
environment” and that “environmental protection has emerged as a fundamental value of
Canadian society”: 114957 Canada Ltée (Spraytech, société d’arossage) v. Hudson (Town),
[2001] 2 SCR 241 at paragraph 1. For reasons I have given throughout this order, I do not find
the interest in non-disclosure to be compelling. In my view, the interest in disclosure clearly
outweighs any interest in non-disclosure and outweighs the purpose of the section 17(1)
exemption.
I therefore find that, if the information were exempt under section 17(1), the exemption would
not apply because section 23 overrides it.
ORDER:
1. I order the Ministry to disclose the record to the appellant no later than July 14, 2005,
but not earlier than July 11, 2005.
2. To verify compliance with this order, I reserve the right to require the Ministry to
provide me with a copy of the material disclosed to the appellant.
Original Signed By:
June 9, 2004
John Swaigen
Adjudicator
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Legislation
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FIPPA
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17(1)(a), (b) & (c)
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Section 23
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Subject Index
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Signed by
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John Swaigen
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Published
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Jun 09, 2005
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