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Document
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M-69
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File #
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M-9200016
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Institution/HIC
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Township of Bagot & Blythfield
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Summary
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ORDER On October 1, 1992, the undersigned was appointed Inquiry Officer and received a delegation of the power and duty to conduct inquiries and make orders under the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act . BACKGROUND: The Township of Bagot & Blythfield (the Township) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to records relating to the requester's company, specifically in relation to its application for development approval. The Township granted partial access to the record, denying access to part of the record pursuant to sections 6(1)(b), 7(1) and 12 of the Act . The requester appealed the Township's decision. Mediation of the appeal was not successful and notice that an inquiry was being conducted to review the Township's decision was sent to the appellant and the Township. Written representations were received from the appellant and the Township. In its representations, the Township agreed to release additional pages of the record, and has given the appellant the opportunity to review these pages. Accordingly, these pages are no longer at issue in this appeal. An appendix has been attached to this order so that reference can be made to the pages of the record which remain at issue. Appendix A sets out the exemptions claimed and identifies duplicate pages. With reference to the duplicate pages, the decision I reach on a particular page will be applicable to its duplicate. PRELIMINARY MATTERS: In its representations, the Township has not cited or made reference to the application of section 6(1)(b) of the Act to any part of the record. Accordingly, this exemption will not be considered in the context of this appeal. The Township submits that some of the information contained in the record will fall under section 10 of the Act because disclosure of the information could affect the competitive position of the Township. In my view, harm to the competitive position of the Township should be addressed by a claim pursuant to section 11 of the Act , not pursuant to section 10. The Township has not identified any page of the record the disclosure of which might harm its competitive position and, accordingly, neither section 10 nor 11 will be considered in the context of this appeal. The Township has not made reference to the application of an exemption to pages 40-69, 128-132, 156-158 and 174 of the record. Having reviewed these pages, I find that no mandatory exemption under the Act applies and, therefore, these pages should be disclosed to the appellant. However, only parts of pages 156-158 are relevant to the appellant's request and, therefore, only those parts of the document which relate to the appellant's company should be disclosed. I have attached a highlighted copy of pages 156-158 with the copy of this order provided to the Township, which indicates the severances which should be made prior to the release of the record. Pages 110 to 115 of the record relate to a development project of a company other than that of the appellant. These pages are therefore outside of the scope of the request and should not be disclosed. ISSUES: The issues arising in this appeal are: A. Whether the discretionary exemption provided by section 7(1) of the Act applies. B. If the answer to Issue A is yes, whether there is a compelling public interest in the disclosure of the record which clearly outweighs the purpose of the exemption. C. Whether the discretionary exemption provided by section 12 of the Act applies. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the discretionary exemption provided by section 7(1) of the Act applies. The pages for which the Township submits that section 7(1) of the Act applies are identified in Appendix A. Section 7(1) of the Act reads: A head may refuse to disclose a record if the disclosure would reveal advice or recommendations of an officer or employee of an institution or a consultant retained by an institution. "Advice" pertains to the submission of a suggested course of action which will ultimately be accepted or rejected by its recipient in the deliberative process (Order 118). "Recommendations" should be viewed in the same vein (Order P-348). I have carefully reviewed the record and the representations of the parties. In my view, the information contained in pages 172, 173, 252, 257, 258 and 265 of the record does not purport to suggest one course of action or another. It is factual background information containing no suggested course of action. Therefore, those pages do not qualify for exemption under section 7(1). In my view, disclosure of the remaining pages would reveal the advice and recommendations of consultants retained by the Township. Any factual information contained in these pages is so interwoven with the advice and recommendations that it cannot reasonably be severed pursuant to section 4(2) of the Act . Section 7(2) of the Act lists certain exceptions to the 7(1) exemptions. Specifically, sections 7(2)(f) and (g) state: Despite subsection (1), a had shall not refuse under subsection (1) to disclose a record that contains, (f) a feasibility study or other technical study, including a cost estimate, relating to a policy or project of an institution; (g) a report containing the results of field research undertaken before the formulation of a policy proposal; The appellant claims that if the concerns of the Township's professional advisors form the basis for a municipal policy, then the advice provided by these individuals in aggregate constitutes a "feasibility study or other technical study" and/or "field research" undertaken on behalf of the Township. I have examined the record and I do not agree. The record consists almost exclusively of correspondence between the Township and its professional advisors. Pages 74-76 do contain a report to the Township from a planning and engineering firm, however, the pages do not contain the "results of field research". I see nothing in the record which would lead me to conclude t
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Legislation
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MFIPPA
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4(2)
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7(1)
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7(2)
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7(2)(f)
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7(2)(g)
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Section 12
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Section 16
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Subject Index
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Published
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Dec 02, 1992
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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