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M-916

Document		M-916


Institution/HIC		City of Stoney Creek


Summary		BACKGROUND: A named company (the Company) applied to the Ministry of Environment andEnergy (the Ministry) for a Certificate of Approval under the EnvironmentalProtection Act to develop and operate a landfill site. The site was in thevicinity of the City of Stoney Creek (the City) which thus became one of the "commentingagencies" on the proposal pursuant to the Environmental Assessment Act . The Company and its consultants prepared an Environmental Assessment of theproposal and circulated drafts of its Environmental Assessment documents to theMinistry and all commenting agencies. In June 1994, City Council formed the City Review Committee (the Committee)for the purpose of reviewing the documents in detail, and advising the City withrespect to issues surrounding the landfill application. The Committee consistedof members of senior City staff and outside consultants with expertise in thevarious areas covered by the documents. The Mayor and another council memberattended the meetings on a regular basis. The Committee met regularly to discuss various planning, engineering andenvironmental issues related to the application. The Committee meetingsculminated in various reports setting out recommendations to the City Councilfor the purpose of providing its comments to the Ministry. In January 1995, the Company submitted its final Environmental Assessmentdocuments to the Ministry. The City, as one of the commenting agencies,received copies of these documents for its review in order to submit its formalresponse to the Ministry. The Committee continued to provide input to CityCouncil for this purpose. The City advised the Ministry that it did not support the application for aCertificate of Approval for the landfill site. The City did not request thatthe Minister hold a hearing with respect to the application. Pursuant to the provisions of the Environmental Assessment Act , theCompany's application for a Certificate of Approval was accepted by the Ministeron April 22, 1996. The application was subsequently approved on July 15, 1996. Many residents in the community opposed the application. The appellantrepresents one of the citizens' groups formed in opposition to the EnvironmentalAssessment. NATURE OF THE APPEAL: The appellant submitted a request to the City under the MunicipalFreedom of Information and Protection of Privacy Act (the Act ) foraccess to the minutes and proceedings of all the meetings held by the Committeebetween January 1, 1995 and March 4, 1996. The City identified 12 responsive records and granted access to the threedocuments related to public meetings. The City denied access to the minutes ofthe remaining meetings on the basis of the following exemptions in the Act : advice and recommendations - section 7(1) economic and other interests - section 11(e) solicitor-client privilege - section 12 The City also advised the requester that it had no record of any Committeemeetings held after October 3, 1995. The requester appealed this decision, claiming, among other matters, thatadditional records should exist. In particular, the appellant maintained thatthe Committee held additional meetings after October 3, 1995 dealing with acompensation package and conditions of approval. The City undertook a further search for these records and located 12additional documents. The City issued a second decision letter granting partialaccess to these records. Some of the records were not disclosed on the basis ofthe three exemptions previously claimed by the City. During mediation of the appeal, the appellant raised the application ofsection 16 of the Act , maintaining that there is a compelling publicinterest in disclosure of the records. A Notice of Inquiry was sent to the City and the appellant. Representationswere received from both parties. In its representations, the City claimed theapplication of section 12 to certain records to which this exemption had notbeen originally applied. A Supplementary Notice of Inquiry was sent to theparties to solicit representations on the late raising of this discretionaryexemption, in addition to certain other matters which had arisen. In addition,the Company was notified of the appeal and sent a copy of the Supplementary, aswell as the initial Notice of Inquiry. All parties were also asked to commenton the application, if any, of section 10(1) of the Act (third party information) to the records at issue. Representations in response to the Supplementary Notice of Inquiry werereceived from the City, the appellant and the Company. The Company advised thatit took no position with respect to the issues raised in either Notice ofInquiry. The City indicated that it had revised its position with respect to Records12, 14, 15 and 16 and that it was now prepared to release them to the appellant. I will order it to do so. In addition, the City took the position that section10(1) did not apply to the records. I have reviewed the records and also findthat this exemption is not applicable. At this time, the records at issue and the exemptions claimed by the City toapply to them are set out in Appendix A to this order. PRELIMINARY MATTERS: LATE RASING OF DISCRETIONARY EXEMPTIONS Upon receipt of the appeal, this office provided the City with aConfirmation of Appeal notice. This notice indicated that the City had 35 daysfrom the date of this notice (an expiry date was provided) to raise anyadditional discretionary exemptions not claimed in the decision letter. Noadditional exemptions were raised during this period. Subsequently, in its representations, the City explicitly raised theapplication of the discretionary exemptions provided by sections 11(e) and 12 toRecord 2. In addition, although not specifically referring to the exemption insection 12, the City, in its representations, claimed that Records 1, 3 and 8contain "legal advice". Records 1, 2, 3 and 8 were all identified bythe City in its first decision letter of May 13, 1996. Thus, by the time theCity's representations were submitted, the expiry date provided in theConfirmation of Appeal had passed by almost two months. It has been determined in previous orders that the Commissioner has thepower to control the process by which an inquiry is undertaken (Orders P-345 andP-537). This includes the authority to limit the time during which aninstitution may raise new discretionary exemptions not claimed in its originaldecision letter. In Order P-658, I concluded that in cases where a discretionary exemption(s)is claimed late in the appeals process, a decision maker has the authority todecline to consider the discretionary exemption(s). I adopt this reasoning forthe purpose of this appeal. In the Supplementary Notice of Inquiry, the City was requested to explainwhy it was claiming the application of sections 11(e) and 12 to Records 1, 2, 3and 8 at this late date and the reasons why they should be considered at thistime.


Legislation		MFIPPA 11(e) 7(1) Section 12 Section 16


Subject Index		negotiations


Published		Apr 02, 1997


Type		Order


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