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Document
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M-985
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Institution/HIC
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Municipality of Metropolitan Toronto
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Summary
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NATURE OF THE APPEAL: The appellant submitted a request to the Municipality of MetropolitanToronto (the Municipality) under the Municipal Freedom of Information andProtection of Privacy Act (the Act ). The request was for access to: (1)a computer spreadsheet model developed to distribute fixed and variablesystem costs and revenues across the various beverage container materials in theBlue Box system and the waste stream; (2)a cost allocation model for the Blue Box system. The Municipality responded by denying access to the models referred to initem (1) under the exemption in section 11(e) of the Act (economic andother interests). The appellant appealed. This office sent a Notice of Inquiry to the appellant and the Municipality. Both parties submitted representations. The record at issue consists of spreadsheet analyses, which includecomparative projections of costs and revenues associated with differentapproaches to beverage container recycling and waste. The sole issue in thisappeal is whether this record is exempt under section 11(e) of the Act . DISCUSSION: Section 11(e) of the Act states: A head may refuse to disclose a record that contains, positions, plans, procedures, criteria or instructions to be applied toany negotiations carried on or to be carried on by or on behalf of aninstitution. For a record to qualify for exemption under section 11(e), each part of thefollowing test must be established: 1.the record must contain positions, plans, procedures, criteria orinstructions; and 2.the positions, plans, procedures, criteria or instructions must beintended to be applied to negotiations; and 3.the negotiations must be carried on currently, or will be carried on inthe future; and 4.the negotiations must be conducted by or on behalf of an institution. (Order M-92) In its representations, the Municipality indicates that previousnegotiations between the packaging industry and the Association ofMunicipalities of Ontario broke down. However, new negotiations are ongoingwith the Recycling Council of Ontario, which has sponsored a committee composedof municipal and industry representatives, in an attempt to re-establish acommon goal for sharing municipal recycling costs with the packaging industry. The Municipality also submits that these negotiations "... betweenindustry participants and municipalities, including [the Municipality] willresult in proposals in relation to the funding of recycling programs asrepresented by a cost allocation system 'per' materials." The Municipality also explains that the records allocate costs to the typesof materials processed, and predict the cost impact when the quantity ofmaterials is altered or materials are added to or removed from the system. I will now discuss the four specific requirements of this exemption. Under requirement 1, the Municipality quotes the Concise Oxford Dictionaryand submits that "criteria" are "a principle or standard that athing is judged by". It further submits that the spreadsheet costallocation model contains the criteria which the Municipality will apply toproposals to be made by the committee of municipal and industry representatives. I agree with this definition and I find that the first requirement is met inthe circumstances of this appeal. Under requirement 2, I am satisfied that the criteria will apply tonegotiations which will occur in the context of the committee's work and anylater responses to its proposals, and this requirement is met. I am also satisfied that these negotiations are occurring, or will occur inthe future, meeting requirement 3. Finally, I accept the Municipality's submission that it is, itself, involvedin negotiations to formulate a standardized funding proposal for recyclablematerials, and this meets requirement 4. The appellant denies that the Municipality is involved in negotiations. Inthis regard, I prefer the evidence of the Municipality, which I have relied onin making the findings I have just outlined in relation to the four requirementsof this exemption. In my view, the Municipality is in the best position to knowwhether or not it is involved in the negotiations referred to above. Since all four requirements under section 11(e) are met, I find that therecord is exempt under that section. The appellant's other arguments focus on the public's right to know thebasis for the Municipality's conclusions about recycling costs, whichconclusions are, according to the appellant, in the public domain by virtue of areport to the Municipality's Environment and Public Space Committee. In myview, these arguments are not germane to the question of whether a case has beenmade out under section 11(e), nor are they sufficient to trigger the applicationof the "public interest override" in section 16 of the Act . ORDER: I uphold the decision of the Municipality. Original signed by: John Higgins, Inquiry Officer August 14, 1997
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Legislation
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Subject Index
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Published
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Aug 14, 1997
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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