Access to Information Orders

ORDER M-342

 

Appeal M‑9400092

 

City of Guelph

NATURE OF THE APPEAL:

 

This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act).  The appellant has requested copies of records from the City of Guelph (the City) relating to the construction of a storm sewer.  The appellant served as a subcontractor to the primary contractor on the construction project and is now involved in litigation over the payment of certain additional fees for work performed.

 

The records at issue in this appeal consist of 48 documents which are described in Appendix "A" to this order.  The City relies on the following exemptions to deny access to these records:

 

•          advice or recommendations - section 7(1)

•          third party information - section 10

 

A Notice of Inquiry was provided to the appellant, the City and 17 companies whose names appear in the responsive records relating to the construction project.  Representations were received from the City only.  Although correspondence was received from three of the affected persons, two indicated that they were declining to provide representations and the third simply provided copies of all of its correspondence with the City to this office.

 

DISCUSSION:

 

ADVICE OR RECOMMENDATIONS

 

Section 7(1) of the Act provides as follows:

 

A head may refuse to disclose a record if the disclosure would reveal advice or recommendations of an officer or employee of an institution or a consultant retained by an institution.

 

It has been established in a number of previous orders that advice and recommendations for the purpose of section 7(1) must contain more than mere information.  To qualify as "advice" or "recommendations", the information contained in the records must relate to a suggested course of action which will ultimately be accepted or rejected by its recipient during the deliberative process.

 

The City has claimed the application of the exemption provided by section 7(1) for all of the records at issue.  I have reviewed the records and the representations submitted by the City and, in my view, Records 2, 5, 6, 7, 25, 26, 36, 41, 43, 44, 47 and 48 reveal a proposed course of action from a consultant retained by the City which could be accepted or rejected by its recipient (the City).  These records are, therefore, exempt from disclosure in their entirety under this provision.  I find, however, that section 7(1) does not apply to the remaining 36 records.   Since no other exemptions have been claimed for Records 4, 8, 9, 11-14, 16-21, 24, 28, 29, 32-35, 38, 40, 42 and 46, these records should be disclosed to the appellant.

 

 

THIRD PARTY INFORMATION

 

The City has claimed that section 10(1) of the Act applies to exempt Records 1, 3, 10, 15, 22, 23, 27, 30, 31, 37, 39 and 45 from disclosure.

 

For the record to qualify for exemption under sections 10(1)(a), (b) or (c) of the Act, the party resisting disclosure 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 sections 10(1)(a), (b) or (c) will occur.

 

Failure to establish the requirements of any part of this test will render the section 10(1) exemption claim invalid.

 

Part One of the Test

 

The records contain detailed information about proposed and actual construction methods, pricing and quotes for work to be performed.  In my opinion all of the information contained in these records qualifies as either technical, commercial or financial information and, accordingly, part one of the test has been satisfied.

 

Part Two of the Test

 

The second part of the test has two elements.  First, the party resisting disclosure must establish that the information was supplied to the City and second, that it was supplied in confidence, either implicitly or explicitly.

 

All of the records are either addressed to the City or have been copied to it.  I am satisfied that they were supplied to the City by the affected persons.

 

I must now determine if this information was supplied to the City in confidence, either implicitly or explicitly.  In its representations, the City states only that the records were "supplied in confidence".  However, there is nothing on the face of the records themselves which explicitly states that they were submitted in confidence, nor have I been provided with any evidence from the companies relating to the circumstances in which the information was supplied to the City.  Accordingly, I find that part two of the test has not been met.

 

Part Three of the Test

 

To satisfy part three of the test, detailed and convincing evidence must be adduced that describes a set of facts and circumstances which would lead to a reasonable expectation that the harms described in section 10(1) would occur if the information was disclosed.

 

I have not been provided with sufficient evidence to substantiate a clear and direct linkage between the disclosure of the records and the reasonable expectation of any of the harms listed in section 10(1) of the Act occurring.

 

Accordingly, I find that part three of the test has not been met and that Records 1, 3, 10, 15, 22, 23, 27, 30, 31, 37, 39 and 45 do not qualify for exemption under section 10.  As no further exemptions have been claimed for these records, they should be disclosed to the appellant.

 

ORDER:

 

1.         I uphold the City's decision to deny access to Records 2, 5, 6, 7, 25, 26, 36, 41, 43, 44, 47 and 48.

 

2.         I order the City to disclose Records 1, 3, 4, 8-24, 27-35, 37-40, 42, 45 and 46 to the appellant within thirty-five (35) days after the date of this order but not earlier than the thirtieth (30th) day after the date of this order.

 

3.         In order to verify compliance with the provisions of this order, I reserve the right to require the City to provide me with a copy of the records which are disclosed to the appellant pursuant to Provision 2.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Original signed by:                                                                    July 8, 1994               

Donald Hale

Inquiry Officer

                                                              APPENDIX "A"