ORDER P-454

 

Appeal P-9200171

 

Ontario Native Affairs Secretariat

 

 

ORDER

 

BACKGROUND:

 

The Ontario Native Affairs Secretariat (the Secretariat) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for access to:

 

 

A report by a [named individual] on the Hansen and Ward reports dealing with the validity of the Golden Lake land claim to the Ontario side of the Ottawa River watershed including Algonquin Park.

 

 

The Secretariat did not respond to the request within the prescribed 30 day period under section 28(7) of the Act and the appellant appealed the "deemed refusal" to provide access.  The Secretariat later issued a decision and denied access to the report on the basis of sections 13(1), 17(1), 19, 21(3)(d) and 22(a) of the Act.

 

The Secretariat identified the following records as being responsive to the request:

 

 

1.         A three page letter compiled by an affected person which commented on a researcher's work;

 

2.         A list of researchers with margin notes made by the author of Record 1 respecting the suitability of the researchers for certain work; and

 

3.         A report consisting of research material and margin notes made by the author of Record 1.

 

 

During mediation of the appeal, the Secretariat also raised section 18(1) of the Act as an additional ground for denying access.  A list of the records together with the corresponding exemptions claimed by the Secretariat is set out in Appendix A of this order.

 

The appellant asserted that there is a public interest in the disclosure of the documents, pursuant to section 23 of the Act.

 

A notice of inquiry to review the Secretariat's decision was sent to the appellant, the Secretariat and the author of the report (the affected person).  Written representations were received from all the parties.

 

ISSUES:

 

The issues arising in this appeal are:

 

A.        Whether the mandatory exemption provided by section 17 of the Act applies to the records.

 

B.        Whether the discretionary exemption provided by sections 18(1)(d) and (e) of the Act apply to the records.

 

C.        Whether the discretionary exemption provided by section 19 of the Act applies to the records.

 

D.        Whether the discretionary exemption provided by section 13 of the Act applies to the records.

 

E.         Whether the discretionary exemption provided by section 22(a) of the Act applies to the records.

 

F.         Whether any of the information contained in the records qualifies as personal information as defined by section 2(1) of the Act.

 

G.        Whether the mandatory exemption provided by section 21 of the Act applies to the information contained in Record 4.

 

H.        Whether there is a public interest in the disclosure of the records, pursuant to section 23 of the Act.

 

 

SUBMISSIONS/CONCLUSIONS:

 

ISSUE A:       Whether the mandatory exemption provided by section 17 of the Act applies to the records.

 

The Secretariat claims that sections 17(1)(a), (b) and (c) apply in relation to all the records. These sections read as follows:

 

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:

 

(b)        result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be supplied

 

(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 section 17(1), the Secretariat and/or the affected person must satisfy the requirements of 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 must give rise to a reasonable expectation that one of the types of harms specified in section 17(1)(a) will occur.

 

[Order 36]

 

 

Part 1 of the test

 

In order to meet part 1 of the test, the Secretariat and/or the affected person must establish that disclosure of the records would reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information.

 

The Secretariat makes the following representations with respect to part 1 of the section 17(1) test:

 

It is respectfully submitted that the interpretation of historical data, advice regarding historical research methodology, identification of historical issues relevant to a land claim and the selection of extracts taken from voluminous historical primary and secondary resources are all technical or scientific information.  [The Secretariat] believes that it is widely appreciated that the gathering and interpretation of historical evidence is a complex endeavour requiring years of training.  The work of well respected historians, such as [the affected person], must certainly be considered scientific or technical information.

 

 

Although previous orders have considered the meaning of the terms "scientific" and "technical", no one set of definitions has been adopted.

 

I will turn, first, to a consideration of the term "scientific". The Concise Oxford Dictionary (8th ed.) defines "scientific", in part, as follows:

 

 

1.         According to rules laid down in exact science for performing observations and testing the soundness of conclusions.

 

2.         Used in, engaged in, or relating to science, especially natural science.

 

3.         Assisted by expert knowledge.

 

 

"Science" is defined, in part, as:

 

 

a branch of knowledge conducted on objective principles involving the systematized observation of an experiment with phenomena, especially concerned with the material and functions of the physical universe.

 

 

In my view, scientific information is information belonging to an organized field of knowledge in either the natural, biological or social sciences or mathematics.  In addition, for information to be characterized as scientific, it must relate to the observation and testing of specific hypothesis or conclusions and be undertaken by an expert in the field.  Finally, scientific information must be given a meaning separate from technical information which also appears in section 17(1)(a) of the Act.

 

The records at issue in this case represent a collection of historical articles with some evaluative comments.  These materials neither test a specific hypothesis, set out conclusions based on observations, not present findings according to a specific methodology.  On this basis, the materials cannot be said to constitute scientific information based on the definition that I have set out on page 4.

 

I will now turn to a consideration of "technical" information.  The Concise Oxford Dictionary (8th ed.) defines "technical", in part, as follows:

 

of or involving or concerned with the mechanical arts and applied sciences.

 

In my view, technical information is information belonging to an organized field of knowledge which would fall under the general categories of applied sciences or mechanical arts.  Examples of these fields would include architecture, engineering or electronics.  While, admittedly, it is difficult to define technical information in a precise fashion, it will usually involve information prepared by a professional in the field and describe the construction, operation or maintenance of a structure, process, equipment or thing.  Finally, technical information must be given a meaning separate from scientific information which also appears in section 17(1)(a) of the Act.

 

Based on this definition, I find that the information contained in the records cannot reasonably be said to fall into the category of technical information.

 

Because I have found that the records consist neither of scientific nor technical information, the first part of the section 17 test has not been met.  However, because the representations of the Secretariat and the affected person have focused on parts 2 and 3 of the test, I will address the issues which were raised.

 

Part 2

 

In order to meet part 2 of the test, the Secretariat and/or the affected person must establish that the information was supplied to the Secretariat in confidence, implicitly or explicitly.

 

In its representations, the Secretariat states:

 

... it was an explicit and clear condition of [the affected person] supplying the report to the Ontario government that his report ... and the fact that he had performed work for the Ontario government remain confidential.  This condition of confidentiality is mentioned in [the affected person's] retainer ...

 

 

The "retainer" to which the Secretariat refers in its representations is a two page letter to the affected person confirming the work which the Secretariat wished the individual to undertake. The last paragraph states "... I am treating our discussion and your involvement in this matter in confidence".

 

Based on an assessment of these representations, I find that the records were explicitly supplied in confidence to the Secretariat.

 

Part 3

 

To satisfy the Part 3 test, the Secretariat and/or the affected party must present evidence that is detailed and convincing, and must describe a set of facts and circumstances that would lead to a reasonable expectation that the harm described in sections 17(1)(a), (b) or (c) would occur if the information was disclosed.  (Order 36)

 

Section 17(1)(a)

 

In order to establish the harms envisaged by section 17(1)(a), the Secretariat and/or the affected person must establish that the disclosure of the information could reasonably be expected to "prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization".

 

In its representations, the Secretariat states:

 

[The affected person's] ability to conduct research in regard to primary sources in the hand's of First Nations is crucial to his work.  That ability is directly linked to ... goodwill ...

...

 

... [W]e expect that ... breaches of confidentiality could prejudice significantly [the affected person's] competitive position by harming his reputation among his peers and among those upon whom he must rely to conduct his work.

 

The Secretariat then goes on to say that the atmosphere which surrounds a land claim may lead to "mischaracterization" of the information contained in the affected person's report.

 

The affected person also addresses the application of section 17(1)(a) in his representations. He states:

 

I am covered by Section 17(1)(a) ...  Any statements misconstrued, or taken out of context, in my letter and notes ... could prevent me obtaining access to archival collections held by Ontario First Nations...

 

The first argument advanced by the Secretariat is that the mere fact that the affected person was engaged by the organization and provided the Secretariat with a collection of research materials along with some editorial contents is sufficient to trigger the operation of section 17(1)(a).  This submission does not specify, to the extent required, however, how the release of the information contained in the records would either prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of the affected person.

 

Both the Secretariat and the affected person also contend that the ability of the affected person to undertake future research could be harmed if the information contained in the records was misconstrued or taken out of context.  While I appreciate the sincerity of these representations, the evidence necessary to support these submissions has not been provided.  In addition, based on my own review of these records, I believe that it would be quite unlikely that the purpose of the documentation, which is designed to be constructive and helpful throughout, could be misconstrued.

 

Section 17(1)(b)

 

In order to establish the harm envisaged by section 17(1)(b), the Secretariat and/or the affected person must establish that disclosure of the information could reasonably be expected to "result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be supplied".

 

The affected person has not addressed the application of section 17(1)(1)(b) in his representations.  The Secretariat, however, has indicated that, if the records in question are released, there is a real risk that the affected person will no longer provide similar information to the Government of Ontario.

 

While I appreciate the concerns which are being expressed by the Secretariat, I have not been provided with sufficient evidence to conclude that it is likely that the affected person would no longer provide information of this nature to the Secretariat.  Nor am I persuaded that other researchers in the field would have similar concerns.  For these reasons, I believe that section 17(1)(b) is not applicable to the records in the circumstances of this case.

 

Section 17(1)(c)

 

In order to establish the harm envisaged by section 17(1)(c), the Secretariat and/or the affected person must establish that disclosure of the information could reasonably be expected to result in "undue loss or gain to any person, group, committee or financial institution or agency".

 

The affected person does not address section 17(1)(c) directly in his representations.  However, the representations which he has made under section 17(1)(a) could also relate to this section. In its representations, the Secretariat states:

 

 

... the information [outlined under the arguments for section 17(1)(a) and (b)] demonstrates that there exists a reasonable expectation that disclosure would harm [the affected person's] professional reputation and significantly inhibit his ability to continue much of his work so as to cause him undue monetary and career development loss.

 

 

For the reasons I have expressed above under my discussion of section 17(1)(a), I find that the Secretariat and the affected person have not provided me with sufficient evidence to establish that section 17(1)(c) applies.

 

As the Secretariat and the affected person have not met parts 1 and 3 of the section 17 test, I find that the section 17 does not apply in the circumstances of this appeal.

 

ISSUE B:       Whether the discretionary exemption provided by sections 18(1)(d) and (e) apply to the records.

 

The Secretariat has also claimed that sections 18(1)(d) and (e) apply in relation to all of the documents in Appendix A, except for Record 4.         

 

Sections 18(1)(d) and (e) of the Act read:

 

A head may refuse to disclose a record that contains,

 

 

(d)       information where disclosure could reasonably be expected to be injurious to the financial interests of an Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario;

 

(e)        position, plans, procedures, criteria or instructions to be applied to any negotiations carried on or to be carried on by or on behalf of an institution of the Government of Ontario;

 

In all cases where a claim for exemption is made under section 18 of the Act, the onus rests with the institution to demonstrate that the harms envisioned by this section are present or reasonably foreseeable.  The evidence submitted by the Secretariat must be detailed and convincing.  In the absence of sufficient evidence to support a claim under section 18, the record should be released to the appellant (Order P-441).

 

In support of its position, the Secretariat states:

 

... disclosure of [the affected person's] report would reveal positions, strategies, and the basis and strength of those positions that are being, or will be applied, to the land claim negotiations (section 18(1)(e)).  Premature disclosure of this information would have serious effects on the results of negotiations that involve the largest land claim in Ontario.  It should not be underestimated how directly the historical evidence and its interpretation, and the assessment of the strength of Ontario's research, impacts upon the negotiation strategies and the direction and strength of its negotiation positions.  The party negotiating on the other side of the land claim bargaining table would be in a far stronger bargaining position if it knew the strengths and weaknesses of Ontario's positions. As such, disclosure would likely be injurious to the ability of Ontario to negotiate as favourable a settlement which would be injurious to the financial interest of the government of Ontario (section 18(1)(d)).

 

 

Since the representations of the Secretariat focus more on section 18(1)(e), I will consider that exemption first.

 

In order to successfully claim that section 18(1)(e) applies to the records, the Secretariat must meet each part of the following four part test.  It must establish that:

 

1.         The record contains positions, plans, procedures, criteria or instructions;  and

 

2.         The record is intended to be applied to negotiations; and

 

3.         These negotiations are being carried on or will be carried on in the future; and

 

4.         These negotiations are being conducted by or on behalf of an institution or the government of Ontario.

 

[Order 87]

 

 

In my examination of the records, I have not found any information that could reasonably be characterized as "positions, plans, procedures, criteria or instructions".  I would also point out that, in its representations, the Secretariat has neither identified those portions of the records which it considers to be positions, plans, procedures criteria and instructions nor has it indicated

 

which information will be applied to negotiations. Accordingly, I find that the Secretariat has failed to satisfy the first and second parts of the section 18(1)(e) test and, therefore, that the exemption does not apply to the records at issue.

 

Section 18(1)(d) deals with information which, if disclosed, could reasonably be expected to be injurious to the financial interests of the Government of Ontario, or its ability to manage the provincial economy. Detailed and convincing evidence is required to support a claim under section 18(1)(d) that one of the consequences identified in the section could reasonably be expected to occur if the records were disclosed (Orders 141, P-346).

 

The Secretariat's submissions under section 18(1)(d) are related to those which it has advanced under section 18(1)(e).  The nub of the Secretariat's argument is that the release of a collection of research materials, with some annotations appended by the person who collected them, could compromise the land claims negotiation process.  On this basis, such disclosure "could reasonably be expected to be injurious to the financial interests of the Government of Ontario or the ability of the Government to manage the economy of Ontario".

 

The representations of the Secretariat deal with possible consequences, but it has failed to demonstrate a clear, specific and understandable linkage between its allegations of harm under section 18(1)(d) and disclosure of the types of records at issue in this appeal.  Nor, in my view, is it evident on the face of the records that the consequences contemplated by section 18(1)(d) could reasonably be expected to result from disclosure.  Accordingly, I find that the Secretariat has not met the burden of proof under section 18(1)(d).  On this basis, the records do not qualify for exemption under either section 18(1)(d) or (e).

 

 

ISSUE C:       Whether the discretionary exemption provided by section 19 of the Act applies to the records.

 

 

Section 19 reads as follows:

A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.

 

 

The Secretariat relies upon the second branch of the exemption (i.e. that the record was prepared for use by Crown counsel in giving legal advice or in connection with litigation) to exempt all the records contained in Appendix A.

 

Two criteria must be satisfied in order for a record to qualify for exemption under branch 2:

 

 

1.         the record must have been prepared by or for Crown counsel;  and

 

2.         the record must have been prepared for use in giving legal advice, or in contemplation of litigation, or for use in litigation.

 

[Order 210]

 

The inclusion of the term "for use" in section 19 contemplates that the record, itself, will be used either for the provision of legal advice or for litigation (Order 210).

 

The question of what constitutes "in contemplation of litigation" was considered by former Commissioner Sidney B. Linden.  In Order 52, he stated that, in order for a record to qualify as being prepared "in contemplation of litigation", the dominant purpose for the preparation of the document must be in contemplation of litigation; and there must be a reasonable prospect of such litigation at the time of the preparation of the record - litigation must be more than just a vague or theoretical possibility.

 

In its representations, the Secretariat makes the following statements with respect to section 19:

 

 

In a land claim, the historical facts are the evidence which form the legal tests and issues and which ultimately determine the validity of the land claim.  The historical record, its interpretation, and the assessment of the strength of any particular interpretation inform in a direct and profound way the legal advice which plays a fundamental role in land claim negotiation strategies and positions. All the legal tests and issues are informed or resolved by the application of the historical evidence. For example, in order for the First Nations to establish its claim, the parties will scrutinize the historical record to determine if there has been sufficient continuous occupation of land to ground a claim to "aboriginal title".

 

The Secretariat further contends that Crown counsel has already used the affected person's report in providing legal advice regarding negotiations and strategies for this land claim.

 

Having reviewed the contents of these records and the representations provided by the Secretariat, I am not persuaded that the records in question were prepared for Crown counsel and, therefore, that the first requirement has not been met.  I will, nevertheless, consider whether the second part of the test has been established.

 

In my view, the dominant purpose of the preparation of the records was for the affected person to comment on work undertaken by a researcher in the land claims field and to indicate further areas for study.  The fact that material provided by the affected person may have subsequently been used in helping to structure legal advice or in litigation does not alter the fact that the records were not prepared for such purposes originally.  Therefore, the second requirement has not been met and the records do not qualify for exemption under section 19.

 

ISSUE D:       Whether the discretionary exemption provided by section 13 of the Act applies.

 

 

The Secretariat contends that section 13(1) applies to Record 1 and to the affected person's notes which appear on Records 4, 6, 7, and 8 (pages 51, 52, 56, 57, 58, 61, 62, 64); Records 9, 11

 

and 13 (page 74); Record 14 (pages 77, 80, 82, 84, 85, 87, 90, 91, 92); Record 15 (page 93) and Record 21 (page 101).

 

Section 13(1) of the Act states:

 

A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution.

 

 

I will first deal with the issue of whether the affected person can be said to have been "retained" by Secretariat.  As evidence of its intention to engage the affected person, the Secretariat has submitted a copy of a formal retainer letter which it sent to the individual outlining the nature of his engagement.  While the Secretariat admits that it did not pay a fee to the affected person (at the affected person's request), it maintains that it was, at all times, prepared to pay this individual for his work.

 

The Secretariat also asserts that the payment of fees should not be the conclusive factor in determining whether an individual has been retained by a government organization.  It compares this case to the situation where a lawyer agrees to act for an individual on a pro bono basis.  The Secretariat contends that, despite the absence of payment, the lawyer is still considered to have been retained by his/her client.

 

I agree with the position that the Secretariat has put forward.  While the payment of a fee is an important indicator in determining whether a formal engagement of services has occurred, it is not determinative.  In this case, the Secretariat intended to and did retain the services of the affected person, notwithstanding the absence of a fee.

 

I must now consider whether the information contained in the records qualifies as "advice" or "recommendations" under section 13(1).

 

It has been established in a number of previous orders that "advice" for the purposes of section 13(1) must contain more than mere information.  Generally speaking, "advice" pertains to the submission of a suggested course of action, which will ultimately be accepted or rejected by its recipient in the deliberative process (Orders 118, P-304, P-348, P-356 and P-402). "Recommendations" should be viewed in the same vein (Orders 161, P-402, P-428, P-348 and P-356).

 

To support its section 13(1) claim, the Secretariat presents the following arguments:

 

Acquiring expert history advice and recommendations, then, is a critical and necessary step in Ontario successfully negotiating land claims such as the subject claim.  Such advice may include an evaluation of research methodology already conducted and advice concerning additional research methodology, appropriate research issues, and evaluations of current research to date.

 

[The affected person] was retained by Ontario as an expert consultant to assess Ontario's current historical research as of that date, and to give advice regarding future directions in the historical research.  His advice is not mere information but is the result of an expertise in historical research methods and sophisticated evaluation and interpretation.  He gave advice regarding Ontario's current historical reports, what further research should be conducted, how to conduct it, what issues were important and some expert interpretation of historical documents.

 

It is clear from the above, that [the affected person's] recommendations and advice were very important to the " deliberative process of government decision making" regarding important steps in preparing and developing positions and strategies for very important and complex negotiations.

 

Record 1 contains comments offered by the affected person respecting another researcher's work and identifies further areas of potential research. I am satisfied that the information in paragraphs 2 to 12 of this Record constitutes "advice" under section 13(1) and, accordingly, qualifies for exemption.

 

Record 2 contains a list of researchers and their addresses, together with comments made by the affected person as to the suitability of each of these individuals for further historical research. In my view, the comments expressed by the affected person can also be characterized as "advice" or "recommendations" under section 13(1).

 

The Secretariat also claims section 13(1) in respect of margin notes made by the affected person on Records 4, 6, 7, 9 and 11 and certain pages of Records 8, 13, 14, 15 and 21.  These records are copies of published articles, bibliography sources and extracts and a letter dated 1913.  The Secretariat makes the following representations with respect to the affected person's margin notes on these records:

 

We believe that these comments are more than information because [the affected person] is calling upon his expertise in recommending various perspectives, interpretations, and highlighting what he advises is relevant or pertinent historical data relevant to the land claim.  These comments are much more than the simple outlining of information.  This is expert advice requiring evaluation of issues important to the claim and evaluation of what documents and historical evidence is relevant to those issues.

 

 

Having reviewed the margin notes, I am satisfied that they contain "advice" under section 13(1).

 

I have reviewed the list of mandatory exceptions contained in section 13(2) of the Act, and find that none of them apply in the circumstances of this appeal.

 

Because section 13(1) is a discretionary exemption, I have also reviewed the Ministry's representations regarding its decision to exercise discretion in favour of claiming this exemption, and I find nothing improper in the circumstances of this appeal.

 

 

ISSUE E:       Whether the discretionary exemption provided by section 22(a) of the Act applies to the records.

 

 

The Secretariat also states that Records 2, 3 and 5 to 19 and 21 are located in libraries or archives available to the public.

 

Section 22(a) of the Act reads:

 

 

A head may refuse to disclose a record where,

 

 

the record or the information contained in the record has been published or is currently available to the public;

 

Section 22(a) gives the head of an institution the discretion to refuse to disclose the requested information, if it has been published or is currently available in another form. However,

when an institution relies on subsection 22(a), the head not only has a duty to inform the requester of the location of the record or the information in question, but is also required to identify or provide the requester with a description of the records or the information in question (Order 191).

 

In its representations, the Secretariat indicates that it would be happy to provide assistance to the appellant, if it is required, to access these libraries.

 

I am not satisfied that the Secretariat has provided the appellant with sufficient information which would enable the appellant to identify the records in question.  Consequently, I am unable to find that the records qualify for exemption under section 22(a).

 

 

ISSUE F:        Whether any of the information contained in the records qualifies as personal information as defined by section 2(1) of the Act.

 

 

The Secretariat also claims that the disclosure of Record 4 would reveal personal information which would constitute an unjustified invasion of personal privacy.  In order to address these representations, the first step in my analysis is to determine whether any parts of the record contain personal information as defined in section 2(1) of the Act.

 

This provision states, in part,

 

"personal information" means recorded information about an identifiable individual, including

...

 

(b)        information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

 

(d)       the address, telephone number, fingerprints or blood type of the individual,

 

(g)        the views or opinions of another individual about the individual, and

 

(h)        the individual's name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual;

 

 

Record 4 contains a list of ten researchers and their addresses as well as brief comments put forward by the affected person as to the suitability of the researchers to undertake certain research.  Because I have previously found that the affected person's comments are exempt under section 13(1) of the Act, I will limit my discussion to the names and addresses of the researchers.

 

The definition of personal information found in section 2(1) of the Act is similar to that found in the Municipal Freedom of Information and Protection of Privacy Act (the municipal Act).  It has been established in a number of previous orders, decided under both the provincial and the municipal Acts, that information provided by an individual in a professional capacity or in the execution of employment responsibilities is not "personal information".  Similar considerations apply in this appeal.  In my view, the names and addresses of persons identified in an employment or professional capacity and their apparent business addresses, do not constitute personal information (Orders 157, P-326, M-118).  Two of the addresses contained in the record, however, appear to be residential rather than employment addresses and I find that this information constitutes the personal information of the two researchers.

 

 

ISSUE G:       Whether the mandatory exemption provided by section 21 of the Act applies to the information contained in Record 4.

 

Under Issue F, I found that the residential addresses of two researchers contained in Record 4 are the personal information of these individuals.

 

Section 21(1) of the Act is a mandatory exemption which prohibits the disclosure of personal information except in certain circumstances which are listed in sections 21(1)(a) through (f) of the Act.

 

Before access can be granted to another individual's personal information, it must be established that one of the six listed exceptions found in section 21(1) of the Act would apply in the circumstances.  For example, a requester or an institution might supply evidence that the individual to whom the information relates has provided written consent to disclosure of the information (section 21(1)(a)).  Similarly, the requester or an institution might attempt to establish that disclosure of the information would not constitute an unjustified invasion of the individual's personal privacy (section 21(1)(f) of the Act).

 

 

In this case, the Secretariat has argued that the disclosure of Record 4 would result in an unjustified invasion of personal privacy.  In his representations, the appellant states:

 

It may be deemed that supplying us with ... [the researchers'] addresses might constitute an invasion of their personal privacy, but we cannot see how this could apply to their names.

 

Having found that the residential addresses qualify as personal information, and in the absence of any submissions weighing in favour of finding that disclosure of the personal information would not constitute an unjustified invasion of personal privacy, I find that the exception contained in section 21(1)(f) of the Act does not apply.  The result is that the addresses are properly exempt from disclosure under section 21(1) of the Act.  I have highlighted the two residential addresses on the copy of Record 4 provided to the Secretariat with this order.

 

ISSUE H:       Whether there is a public interest in the disclosure of the records, pursuant to section 23 of the Act.

 

Section 23 of the Act states:

 

An exemption from disclosure of a record under sections 13, 15, 17, 18, 20 and 21 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

 

I have previously determined that the majority of Record 1 and the notes contained in Records 4, 6, 7, 8, 9, 11, 13, 14, 15 and 21 qualify for exemption under section 13 of the Act.  I have also found that the residential addresses of two of the researchers qualify for exemption under section 21 of the Act.  I must now decide whether there is a compelling public interest in the disclosure of this information, which would outweigh the purpose of the sections 13 and 21 exceptions.

 

There are certain requirements contained in section 23 of the Act which must be satisfied in order to invoke the application of the so-called "public interest override": there must be a compelling public interest in disclosure; and this compelling public interest must clearly outweigh the purpose of the exemption, as distinct from the value of disclosure of the particular record in question (Order 24).

 

The appellant contends that there is public interest in the information.  In its representations, the appellant states:

 

Algonquin Park is a resource of profound significance in our collective Canadian psyche ...  Its substance as a public park and a beacon of environmental protection is under attack ...

 

It goes on to assert that the success of the Native claim to Algonquin Park will have a direct impact on the future of the site.  According to the appellant, the opinions of academic authorities may have a major bearing on determining the validity of the Natives' claim to this land.

 

Having regard to the circumstances of this case, and the fact that most of the records which the appellant has requested will be released, I am not convinced that there exists a compelling public interest in the release of the remainder of the records, which would clearly outweigh the purpose of the sections 13 and 21 exemptions.

 

 

ORDER:

 

1.         I order the Secretariat to release Records 1-21 except for the following parts:

 

Record 1 (paragraphs 2-12); Record 4 (two addresses and margin notes); Record 6 (margin notes on pages 21, 22, 23, 24, 25, 26, 30 and 31); Record 8 (margin notes on pages 51, 52, 56, 57, 58, 61, 62 and 64); Record 11 (margin notes); Record 13 (margin notes on page 74); Record 14 (margin notes on pages 77, 80,82, 84, 85, 87, 90, 91 and 92); Record 15 (margin notes on page 93) and Record 21 (margin notes).

 

For greater certainly, I have provided the Secretariat with highlighted copies of these records.  The highlighted portions identify those parts of the records which should not be released.

 

2.         I order the Secretariat to disclose the records to the appellant after severing the information which I have found to be exempt within 35 days of the date of this order, but not earlier than the thirtieth (30th) day following the date of this order.

 

3.         In order to verify compliance with the order, I order the Secretariat to provide me with a copy of the records which are disclosed to the appellant, only upon my request.

 

 

 

 

 

 

Original signed by:                                                           May 7, 1993              

Irwin Glasberg

Assistant Commissioner

APPENDIX A

 

LIST OF RECORDS AND CORRESPONDING EXEMPTIONS