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Document
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M-1143
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Institution/HIC
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City of Toronto
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Summary
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NATURE OF THE APPEAL: The City of Toronto (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to records relating to the contamination of a specified property which was the site of a former gasoline service station (the property). After locating the responsive records, the City determined that the interests of three organizations could be affected by disclosure, and provided them with notice pursuant to section 21 of the Act . Two organizations objected to disclosure, and the third one did not respond to the notice. After considering the submissions of the two organizations, the City issued its decision granting access in full to the requested records. One of the organizations appealed the City's decision, claiming that the records qualified for exemption under sections 10(1)(a) and (b) of the Act . This organization (now the appellant) included a number of other issues in its appeal letter, including: (1) the City's section 21 notice was not proper; (2) the City had not provided an adequate description of the content of the records it intended to disclose; (3) the City misstated the provisions of sections 10(1)(a) and (b) in its notice to the appellant. During mediation, the City agreed to provide the appellant with its index, which included a detailed description of each record. The records consist of 151 pages and include correspondence, a memorandum of agreement, an environmental off-property site assessment, an environmental investigation report, site monitoring reports and other reports and relevant documentation pertaining to the property. This office provided a Notice of Inquiry to the City, the appellant, the requester, and the two organizations that had received the section 21 notice from the City (the affected parties). Representations were received from the appellant and one of the affected parties (affected party #1), but not from the City, the requester or the other affected party. In its representations, the appellant removes its objection to the disclosure of records commissioned by the appellant of "off-site" environmental conditions relating to the property, specifically pages 16-46 and 82-87. Because the City had originally decided to grant access to these records and no other mandatory exemptions apply, pages 16-46 and 82-87 should be disclosed to the requester. PRELIMINARY MATTERS: Adequacy of Section 21 notice In its representations, the appellant re-asserts its claim that the City failed to provide an adequate description of the records that relate to the appellant, and that the City misstated sections 10(1)(a) and (b) in its section 21 notice. Section 21 of the Act states, in part: (1) A head shall give written notice in accordance with subsection (2) to the person to whom the information relates before granting a request for access to a record, (a) that the head has reason to believe might contain information referred to in subsection 10(1) that affects the interest of a person other than the person requesting information; or (b) that is personal information that the head has reason to believe might constitute an unjustified invasion of personal privacy for the purposes of clause 14(1)(f). (2) The notice shall contain, (a) a statement that the head intends to disclose a record or part of a record that may affect the interests of the person; (b) a description of the contents of the record or part that relate to the person; and (c) a statement that the person may, within twenty days after the notice is given, make representations to the head as to why the record or part should not be disclosed. (2.1) If the request covers more than one record, the description mentioned in clause (2)(b) may consist of a summary of the categories of the records requested if it provides sufficient detail to identify them. In its section 21 notice, the City states that it had received a request "to disclose all environmental records pertaining to [the property]" and that the records consist of "various records and reports". The appellant submits that this level of description is insufficient. As noted above, during mediation the appellant was provided with a copy of the City's index of records. I have reviewed this index and, although the appellant is not satisfied, in my view the index adequately describes the records by providing details such as the date of the records, who they are from, who they are addressed to and the general nature of their contents. Accordingly, I find that whatever inadequacies that may have existed in the City's section 21 notice have been appropriately and adequately addressed and resolved by the provision of the index to the appellant. As far as the description of sections 10(1)(a) and (b) is concerned, the City's section 21 notice paraphrased the wording of these sections in a way which omitted some of the relevant wording. However, the appellant has clearly noticed these omissions and has rectified the deficiency on his own. In addition, the Notice of Inquiry issued by this office included the exact wording of these sections. In my view, the appellant has not been prejudiced by any deficiencies contained in the section 21 notice, and I will not consider this matter further. Process considerations When considering whether to disclose the records, the City notified three organizations and sought their representations on disclosure. The City subsequently decided to disclose these records, and before doing so, notified all three organizations, advising them of their right to appeal this decision within 30 days. Only one organization (the appellant) appealed the City's decision. Although some records involve the appellant and one or more of the other organizations, others are not related to the appellant. The records unrelated to the appellant should have been disclosed by the City to the requester after the expiration of the 30-day appeal period. This did not occur. To further complicate the situation, the other two organizations were added as affected parties to the appellant's appeal, and one of them provided representations claiming that its records should be protected from disclosure by section 10(1). Also, Records 136-149 do not relate to the appellant or either of the affected parties, but to another company which formerly operated a business at the property but is no longer in business (the company). I have decided that the most appropriate process to follow in the circumstances of this appeal is to consider all records relating to the appellant, the two other affected parties, and the company under the mandatory provisions of section 10(1). DISCUSSION: THIRD PARTY INFORMATION Sections 10(1)(a) and (b) state: 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, (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; (b) result in similar information no longer being supplied to the institution where it is in the public interest that similar inform
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Legislation
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Subject Index
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Published
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Aug 07, 1998
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Type
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Order
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