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Document
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M-273
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File #
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M-9300210
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Institution/HIC
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York Region Board of Education INTERIM
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Summary
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ORDER BACKGROUND: As the result of an anonymous leak, a reporter came into possession of an addendum to a contract between the York Region Board of Education (the Board) and a former Director of Education. Despite having possession of this document, the reporter made a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to information contained in the addendum to the contract. The Board responded: The only existing record in the Board's custody and control is within Clause 4 of the Addendum to [the Director's] employment contract which [the newspaper the requester works for] has published. The requester was unsatisfied with the response received, and contacted the Board to confirm that he wanted to receive a response in accordance with the Act . The Board subsequently responded to the request by identifying that access to the addendum to the agreement between the former Director of Education and the Board was denied on the basis of sections 6(1)(b), 10(1)(c), 11(c) and (d), and 14(1) of the Act . The requester appealed the Board's decision. Mediation was not successful and notice that an inquiry was being conducted to review the Board's decision was sent to the Board, the appellant, an identified third party and the former Director of Education (the affected person). Representations were received from the Board. As this appeal concerns matters which were reported by the press, the Appeals Officer identified that section 16 of the Act might be relevant to this appeal. ISSUES: The issues arising in this appeal are: A. Whether the mandatory exemption provided by section 10(1)(c) of the Act applies. B. Whether the discretionary exemptions provided by sections 11(c) and/or (d) of the Act apply. C. Whether the information contained in the requested record qualifies as "personal information" as defined in section 2(1) of the Act . D. If the answer to Issue C is yes, whether the mandatory exemption provided by section 14 of the Act applies. E. If the answer to Issues A, B, or D is yes, whether there is a compelling public interest in the disclosure of the records which clearly outweighs the purpose of the exemptions. F: Whether the discretionary exemption provided by section 6(1)(b) of the Act applies. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the mandatory exemption provided by section 10(1)(c) of the Act applies. Section 10(1)(c) of the Act states: 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, if the disclosure could reasonably be expected to, result in undue loss or gain to any person, group, committee or financial institution or agency; In order for a record to fall within the exemption found in section 10(1)(c), the Board, the third party and/or the affected person 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 (a), (b) or (c) of section 10(1) will occur. [Order M-10] In order to satisfy part two of the test, the information must have been supplied to the institution in confidence, either implicitly or explicitly. The record is an agreement entered into between the Board, the third party and the affected person. In general, in order to meet the test of "supplied" , the information contained in the record at issue must be one and the same as that originally provided to the Board for the purpose of creating the record (Orders 87, 179, 203 and 204). The Board has not specifically addressed the issue of how the information contained in the record was "supplied" by the affected person or the third party. Neither the third party nor the affected person has provided any submissions concerning the possible application of section 10. In my view, the information contained in the record consists of negotiated terms of an agreement, and I am not satisfied that the information contained in the record was supplied by the affected person or the third party, nor am I satisfied that disclosure of the record would permit accurate inferences to be drawn about information which may actually have been supplied to the Board. Accordingly, I find that part two of the test has not been met. As failure to satisfy any one of the three parts of the test renders the section 10 exemption claim invalid, I find that the mandatory exemption set out in section 10(1)(c) of the Act does not apply. ISSUE B: Whether the discretionary exemptions provided by sections 11(c) and/or (d) of the Act apply. Sections 11(c) and (d) of the Act read: A head may refuse to disclose a record that contains, (c) information whose disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution; (d) information whose disclosure could reasonably be expected to be injurious to the financial interests of an institution; In order to qualify for exemption under sections 11(c) and (d) of the Act , the Board must successfully demonstrate a reasonable expectation of harm to its economic interests, competitive position or its financial interests should the information contained in the record at issue be disclosed. Descriptions of possible harm, even in substantial detail, are insufficient in themselves. At the least, there must be a clear and direct linkage between the disclosure of specific information and the harm alleged (Orders P-557 and M-202). The Board states that its expectation of financial or economic harm is based on the fact that there is a confidentiality clause in the agreement. The Board submits that it is bound by the agreement not to disclose the record, and that disclosure of the agreement may therefore result in harm
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Legislation
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MFIPPA
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10(1)(c)
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11(c)
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11(d)
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14(1)(f)
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14(4)(a)
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14(4)(b)
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2(1) personal information
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49(2)
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6(1)(b)
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Section 16
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Subject Index
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Signed by
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Holly Big Canoe
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Published
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Feb 23, 1994
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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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