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Document
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M-364
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Institution/HIC
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The Corporation of the City of York
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Summary
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NATURE OF THE APPEAL: This is an appeal made under the Municipal Freedom of Information and Protection of Privacy Act , (the Act ). The Corporation of the City of York (the City) received a request for access to information related to occupancy approval for the parking facilities of a named building complex. Partial access to the records was granted to the appellant. In its decision letter dated November 16, 1993, the City cited section 8(2)(a) of the Act to deny access to the remaining records. On March 2, 1994, the City raised sections 7(1), 8(1)(a), (b) and (d), 10(1)(a) and 14(1) as additional exemptions which it claimed also applied to the records. The raising of additional exemptions at a late stage in the appeal process will be addressed as a preliminary matter below. The appellant has indicated that he is not seeking access to the personal information of other individuals. Record 3.1, withheld by the City on the basis of the exemptions provided by sections 8(1)(d) and 14(1), contains the name and address of an individual. On that basis, Record 3.1 is not at issue in this appeal and I will not address the applicability of the exemptions claimed in respect of this record. The records and the specific exemptions claimed by the City to deny access to the remaining records are described in Appendix "A" to this order. The City relies on the following exemptions to deny access to the records: advice or recommendations - section 7(1) third party information - section 10(1)(a) law enforcement - sections 8(1)(a), (b) and (d) and 8(2)(a) A Notice of Inquiry was provided to the City and the appellant. Notice was also provided to the original owner of the named building complex and the architectural company named on the application for the building permit for the complex (the affected parties). Representations were received from the City only. DISCUSSION: PRELIMINARY MATTER The Raising of Additional Discretionary Exemptions Late in the Appeals Process On September 14, 1993, the Commissioner's office provided the City with a Confirmation of Appeal which indicated that an appeal from the City's decision had been received. The Confirmation of Appeal also indicated that, based on a policy adopted by the Commissioner's office, the City would have 35 days from the date of this correspondence (i.e. October 20, 1993) to raise any additional discretionary exemptions not claimed in the decision letter. No additional exemptions were raised during this period. On March 2, 1994, City forwarded the records relating to the appeal to the Commissioner's office. It was at this time that the City raised, for the first time, the application of the discretionary exemptions provided by sections 7(1), and (8)(1)(a), (b) and (d) of the Act . The City also raised the application of the mandatory exemptions provided by sections 10(1) and 14(1) of the Act . Previous orders issued by the Commissioner's office have determined that the Commissioner has the power to control the process by which the inquiry process is undertaken (Orders P-345 and P-537). This includes the authority to set time limits for the receipt of representations and a limit on the time during which an institution can raise new discretionary exemptions not originally raised in its decision letter. In Order P-658, Inquiry Officer Anita Fineberg set out the reasons why the prompt identification of discretionary exemptions is necessary to maintain the integrity of the appeals process. Inquiry Officer Fineberg concluded that in cases where a discretionary exemption(s) is claimed late in the appeals process, a decision maker has the authority to decline to consider the discretionary exemption(s). In the circumstances of that case, the institution gave no explanation nor did it advance any "extenuating circumstances" which may have justified the four month delay in raising the additional discretionary exemptions. I agree with the reasoning and determination of Inquiry Officer Fineberg and adopt it for the purposes of this appeal. In its representations, the City states that the delay in claiming the additional discretionary exemptions occurred as a result of confusion between the subject appeal and another request filed by the same appellant. The City submits that this confusion was clarified by letter dated November 16, 1993. I note, however, that the additional discretionary exemptions were not raised until March 2, 1994. In my view, the confusion over the two requests which, by the City's own admission, was clarified by November 16, 1993, does not qualify as the "extenuating circumstances" necessary to remove this appeal from the policy parameters established by the Commissioner's office. On that basis, I will not consider the application of sections 7(1) and 8(1)(a), (b) and (d). As I have noted above, the appellant is not interested in obtaining access to the personal information of other individuals and, therefore, the additional mandatory exemption provided by section 14(1) will not be addressed in this appeal. Finally, the City has also raised the possible application of section 10(1)(a) to Record 2.2. Since this is a mandatory exemption, I will consider its application below. THIRD PARTY INFORMATION The City has claimed that Record 2.2 falls within the mandatory exemption provided by section 10(1)(a) of the Act because it contains technical information. The record contains drawings and technical specifications of the parking garage. For a record to qualify for exemption under section 10(1)(a), the City and/or the affected party 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 subsection 10(1) will occur. I have reviewed the information in the record and I agree that the record contains technical information for the purposes of section 10(1)(a) of the Act . I also accept that the information in the record was supplied to the City by the affected parti
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Legislation
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Subject Index
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Published
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Jul 28, 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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