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Document
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M-242
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Institution/HIC
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City of Cornwall
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Summary
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ORDER BACKGROUND: The City of Cornwall (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to: all information regarding the city contract with the Quebec Nordiques regarding the American Hockey League team coming to Cornwall. The requester expressed a specific interest in the financial arrangements between the City and the Quebec Nordiques, the profit and loss arrangements and any monies paid or promised to bring the American Hockey League team to the City. The City identified one record that was responsive to the request. This record consists of an 18-page agreement between the City and the Quebec Nordiques. Attached to the agreement is a one-page schedule. In its decision, the City denied access to the agreement in its entirety based on the exemptions contained in sections 10(1)(a) and (c), and section 11(c) of the Act . The requester appealed the City's decision. Efforts to mediate this appeal were not successful and notice that an inquiry was being conducted to review the City's decision was sent to the City, the appellant and to the Quebec Nordiques Hockey Club (the affected person). Representations were received from all parties. In its request, the appellant submitted that the record should be disclosed to the public because large amounts of taxpayer funds are involved. By implication, the appellant has raised the application of section 16 of the Act (the so-called "public interest override") to the record at issue. ISSUES: The issues arising in this appeal are: A. Whether the mandatory exemptions provided by sections 10(1)(a) and (c) of the Act apply to the record. B. Whether the discretionary exemption provided by section 11(c) of the Act applies to the record. C. If the answer to Issue A or B is yes, whether there is a compelling public interest in the disclosure of the record which clearly outweighs the purpose of the exemptions provided by sections 10(1) or 11(c) of the Act . SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the mandatory exemptions provided by sections 10(1)(a) and (c) of the Act apply to the record. Sections 10(1)(a) and (c) of the Act state that: 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, where the disclosure could reasonably be expected to, (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; ... (c) result in undue loss or gain to any person, group, committee or financial institution or agency; ... For a record to qualify for exemption under sections 10(1)(a) or (c), the institution and/or the affected person resisting disclosure must demonstrate that each component of the following three-part test has been met: 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 sections 10(1)(a) or (c) will occur. [Orders M-10 and M-183] If any part of the test is not satisfied, the exemption under section 10(1) will not apply to the record (Order M-10). I will first consider part two of the test, which requires that the City and/or the affected person establish that the information contained in the record was supplied to the City and secondly that such information was supplied in confidence either implicitly or explicitly. A number of previous orders have addressed the question of whether information contained in an agreement entered into between an institution and an affected person was supplied by the affected person. In general, the conclusion reached in these orders is that, for such information to have been supplied to an institution, the information must be the same as that originally provided by the affected person. Since the information contained in an agreement is typically the product of a negotiation process between the institution and a third party, that information will not qualify as originally having been "supplied" for the purposes of section 10(1) of the Act (Orders P-251 and M-173). Based on the evidence before me, I find that the terms and conditions contained in the agreement were not originally provided by the Quebec Nordiques but were rather negotiated between the parties. For this reason, I am satisfied that the reasoning applied in the line of orders previously referred to also applies to the agreement in the present appeal. I find, therefore, that the information contained in the agreement was not "supplied" to the City for the purposes of section 10(1) of the Act . Other orders issued by the Commissioner's office have held that information contained in a record would reveal information "supplied" by an affected person, within the meaning of section 10(1) of the Act , if its disclosure would permit the drawing of accurate inferences with respect to the information actually supplied to the institution (Orders P-451 and P-472). I have carefully reviewed the agreement and it is my conclusion that the release of the contents of this document would not permit such inferences to be drawn. For these reasons, I find that the second part of the test for the application of section 10(1) of the Act has not been met. As stated previously, the failure to satisfy any component of the three part test means that the section 10(1) exemption will not apply. As I have found that the information contained in the agreement was not supplied to the City within the meaning of section 10(1), it is not necessary for me to consider the first or third parts of the test. ISSUE B: Whether the discretionary exemption provided by section 11(c) of the Act applies to the record. Section 11(c) of the Act reads as follows:
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Legislation
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MFIPPA
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10(1)(a)
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10(1)(c)
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11(c)
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Section 16
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Subject Index
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Published
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Jan 07, 1994
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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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