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Document
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MO-1612-I
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Institution/HIC
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Toronto District School Board
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Summary
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NATURE OF THE APPEAL: This is an appeal from a decision of the Toronto District School Board (the Board ), under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The requester (now the appellant) seeks access to certain records relating to a public school in Toronto and the anticipated lease of that school to another party, including: [a] copy of the demographic analysis of the surrounding community prepared by Facility Services of TDSB in relation to the closure of McNicoll Public School and the determination of the long-term requirements for student accommodation in the community as required by the Administrative Procedures under G.05 of the Policy of TDSB for Leasing of Surplus Properties. [emphasis in original] The Board located records responsive to the request and provided access to some of them, but denied access to the demographic report prepared by a consultant, based on the application of the discretionary exemptions in sections 7 (advice or recommendations) and 11 (economic interests of an institution) of the Act , and the mandatory exemption in section 10 (third party information). The appellant appealed from the decision of the Board. During the course of mediation through this office, certain issues were narrowed or clarified. The only record in dispute is the demographic analysis prepared for the Board by a consultant. The Board indicates that it is relying on sections 7, 10 and 11(a), (c), (d), (e), (f) and (g) with respect to this record. I sent a Notice of Inquiry to the Board, initially, and to an affected party (the consultant), inviting them to submit representations on the facts and issues raised by this appeal. I received representations from both of these parties. The affected party has stated, among other things, that it would not be harmed in any way if the report were to be released by the Board to another party, and defers to the Board's assessment of whether release of the information would be harmful to the Board's interests. I have decided to seek representations from the appellant, in response to those of the Board. As the Board has asked me not to provide the appellant with a copy of its representations, the purpose of this interim order is to rule on this request. DISCUSSION: SHARING OF REPRESENTATIONS Sharing of representations procedure IPC Practice Direction 7 provides a detailed description of the relevant procedures with regards to the sharing of representations, including affidavits. That Practice Direction states: General The Adjudicator may provide representations received from a party to the other party or parties, unless the Adjudicator decides that some or all of the representations should be withheld. Request to withhold representations A party providing representations shall indicate clearly and in detail, in its representations, which information in its representations, if any, the party wishes the Adjudicator to withhold from the other party or parties. A party seeking to have the Adjudicator withhold information in its representations from the other party or parties shall explain clearly and in detail the reasons for its request, with specific reference to the following criteria. Criteria for withholding representations The Adjudicator may withhold information contained in a party's representations where: (a) disclosure of the information would reveal the substance of a record claimed to be exempt or excluded; (b) the information would be exempt if contained in a record subject to the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act ; or (c) the information should not be disclosed to the other party for another reason. For the purposes of paragraph (c) above, the Adjudicator will apply the following test: (i) the party communicated the information to the IPC in confidence that it would not be disclosed to the other party; and (ii) confidentiality must be essential to the full and satisfactory maintenance of the relation between the IPC and the party; and (iii) the relation must be one which in the opinion of the community ought to be diligently fostered; and (iv) the injury to the relation that would result from the disclosure of the information would be greater than the benefit thereby gained for the correct disposal of the litigation. The Board's confidentiality request In the cover letter to its representations of October 10, 2002, the Board requests that its representations be withheld from the appellant in their entirety. The Board was provided with a further opportunity to provide detailed submissions on the sharing of its representations with the appellant, and the application of the criteria in Practice Direction 7. The Board subsequently provided further submissions, on October 24, 2002. Following this, I sent the Board a copy of its representations, showing in highlighting the portions I proposed to withhold from the appellant. I indicated in this letter my preliminary assessment that "apart from the severances I have highlighted in the attached copy of your representations of October 10, the information in those representations does not fall within the criteria in Practice Direction 7." I invited the Board to respond to my preliminary assessment, and to provide further submissions with reference to each portion of its representations that it believes should additionally be withheld. For assistance, I also provided some examples of the portions of its representations on which I was inviting its submissions. The Board has provided further submissions, dated January 24, 2003, in which it requests that four additional extracts in its submissions, beyond those which I highlighted, be withheld from the appellant. Analysis In its submissions of October 24 and January 24, the Board refers to the decision of the Divisional Court in Toronto District School Board v. Ontario (Information and Privacy Commissioner) , [2002] O.J. No. 4631, which upheld the jurisdiction of the Commissioner to disclose parties' representations. In that decision, the Court also approved of the criteria established in Practice Direction 7 as appropriate limitations on the exercise of the Commissioner's discretion to disclose representations. In its submission of October 24, the Board again requests that the enti
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Legislation
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Subject Index
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Published
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Feb 14, 2003
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Type
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Order – Interim
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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