Access to Information Orders
Decision Information
The Toronto District School Board (the Board) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for a copy of an agreement entered into between one of its predecessor Boards of Education and a named company (the affected party). The Board initially determined that no responsive records exist. The requester, now the appellant, appealed this decision and Appeal Number MA-030101-1 was opened by this office. During the mediation stage of that appeal, the Board located a responsive record (Record 1) and issued a decision letter to the appellant. In that decision, the Board denied access to the record, claiming the application of various exemptions in the Act.
With the issuance of a decision letter by the Board, this office closed its file on Appeal Number MA-030101-1. The appellant appealed the Board's decision to deny access to the record and Appeal Number MA-030101-2 was opened.
Decision Content
NATURE OF THE APPEAL:
The Toronto District School Board (the Board) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for a copy of an agreement entered into between one of its predecessor Boards of Education and a named company (the affected party). The Board initially determined that no responsive records exist. The requester, now the appellant, appealed this decision and Appeal Number MA-030101-1 was opened by this office. During the mediation stage of that appeal, the Board located a responsive record (Record 1) and issued a decision letter to the appellant. In that decision, the Board denied access to the record, claiming the application of various exemptions in the Act.
With the issuance of a decision letter by the Board, this office closed its file on Appeal Number MA-030101-1. The appellant appealed the Board’s decision to deny access to the record and Appeal Number MA-030101-2 was opened.
During the mediation stage of the appeal, the Board located two additional records (Records 2 and 3) and indicated that these documents, as well as the record initially identified, were exempt from disclosure under the following exemptions contained in the Act:
- Closed meeting – section 6(1)(b) – Record 1 only;
- Third party information – sections 10(1)(a), (b) and (c) – Records 1, 2 and 3; and
- Economic and other interests – sections 11(a), (c), (d) and (g) – Records 1, 2 and 3
As further mediation was not successful, the matter was moved to the inquiry stage of the appeals process. I decided to seek the representations of the Board and the affected party initially by sending them a Notice of Inquiry setting out the facts and issues in the appeal. The Board bears the onus of establishing the application of the exemptions in sections 6(1)(b) and 11(a), (c), (d) and (g) while the Board and/or the affected party must demonstrate the application of sections 10(1)(a), (b) and (c).
The Board provided representations in response to the Notice of Inquiry, the non-confidential portions of which were shared with the appellant, along with a copy of the Notice of Inquiry. The affected party did not respond to the Notice. The appellant also submitted representations which I then shared with the Board. The Board submitted additional representations by way of reply.
RECORDS:
The three records at issue consist of:
- Record 1 – Offer to Purchase between the affected party and the Board;
- Record 2 – Letter of Agreement from the affected party to the Board; and
- Record 3 – Sales Centre Lease between the Board and the affected party.
DISCUSSION:
CLOSED MEETING
The Board takes the position that Record 1 is exempt from disclosure under the discretionary exemption in section 6(1)(b), which reads:
A head may refuse to disclose a record,
that reveals the substance of deliberations of a meeting of a council, board, commission or other body or a committee of one of them if a statute authorizes holding that meeting in the absence of the public.
In order to qualify for exemption under section 6(1)(b), the Board must establish that:
1. a meeting of a council, board, commission or other body or a committee of one of them took place; and
2. that a statute authorizes the holding of this meeting in the absence of the public; and
3. that disclosure of the record at issue would reveal the actual substance of the deliberations of this meeting.
[Orders M-64, M-98, M-102, M-219 and MO-1248]
The Board submits that an in camera meeting took place on May 23, 2001 in accordance with section 207(1) of the Education Act, which allows school boards to hold meetings in the absence of the public when they are considering matters relating to the acquisition or disposal of real property. It goes on to state that “Ontario Regulation 444/98 under the Education Act further specifies that both sales and leases of property are considered to be dispositions under the Education Act.” Based on my review of the representations of the Board and the minutes of the in camera meeting, I am satisfied that a meeting of the Board took place and that the Education Act and its Regulations authorize the holding of meetings in the absence of the public.
The Board indicates that Record 1 was considered at the in camera meeting of the Committee of the Whole and that this discussion is reflected in the private minutes of that in camera session. The Board relies on the decision in Order MO-1590-F in which Adjudicator Laurel Cropley applied the section 6(1)(b) exemption to the minutes of an in camera Board meeting and to copies of the reports considered at that meeting. The Board acknowledges that Adjudicator Cropley found that a lease agreement was not exempt from disclosure under section 6(1)(b) as it was “not placed before the Board nor was it considered by the Board at an in camera meeting.” The Board distinguishes the present situation, however, by arguing that Record 1 was, in fact, “placed before the Board in camera and considered by them”.
In Order M-184, former Assistant Commissioner Irwin Glasberg made the following comments on the term “deliberations”:
In my view, deliberations, in the context of section 6(1)(b), refer to discussions which were conducted with a view towards making a decision. Having carefully reviewed the contents of the Minutes of Settlement, I am satisfied that the disclosure of this document would reveal the actual substance of the discussions conducted by the Board, hence its deliberations, or would permit the drawing of accurate inferences about the substance of those discussions. On this basis, I find that the institution has established that the third part of the section 6(1)(b) test applies in this case.
The former Assistant Commissioner expanded on his interpretation of section 6(1)(b) in Order M-196 as follows:
The Concise Oxford Dictionary, 8th edition, defines “substance” as the "theme or subject" of a thing. Having reviewed the contents of the agreement and the representations provided to me, it is my view that the “theme or subject” of the in-camera meeting was whether the terms of the retirement agreement were appropriate and whether they should be endorsed.
I have reviewed the contents of Record 1 and find that its disclosure would reveal the actual substance of the discussions conducted by the Board, hence its deliberations, or would permit the drawing of accurate inferences about the substance of those discussions. The theme or subject of the discussions at the in camera meeting revolved around the contents of Record 1. Accordingly, I am satisfied that the third part of the test under section 6(1)(b) has been met and Record 1 is properly exempt from disclosure under that section.
THIRD PARTY INFORMATION
For section 10(1) to apply, the institution 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 paragraph (a), (b), (c) and/or (d) of section 10(1) will occur.
With respect to the application of section 10(1) to Records 2 and 3, the Board simply points out that section 10(1) is a mandatory exemption and that the records relate to certain “commercial dealings between the TDSB and a third party”. The Board also indicates that it “defers” to the assessment of the third party on the applicability of section 10(1) to the records. I did not, however, receive any representations from the affected party.
I have reviewed the contents of Records 2 and 3 and while they may contain commercial information for the purposes of section 10(1), I have not been provided with any evidence to substantiate a finding that this information was either supplied in confidence by the affected party to the Board or that its disclosure could reasonably be expected to give rise to one of the harms enunciated in section 10(1).
As a result, I find that section 10(1) does not apply to Records 2 and 3.
ECONOMIC AND OTHER INTERESTS OF AN INSTITUTION
The Board submits that Records 2 and 3 are exempt from disclosure under the discretionary exemptions in sections 11(a), (c), (d) and (g), which read:
A head may refuse to disclose a record that contains,
(a) trade secrets or financial, commercial, scientific or technical information that belongs to an institution and has monetary value or potential monetary value;
(c) information whose disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution;
(d) information whose disclosure could reasonably be expected to be injurious to the financial interests of an institution;
(g) information including the proposed plans, policies or projects of an institution if the disclosure could reasonably be expected to result in premature disclosure of a pending policy decision or undue financial benefit or loss to a person;
The Board states that:
The TDSB as a result of changes to the Education Act has been required to enter the marketplace as both a landlord and a property owner. In doing so, the TDSB is required to enter into negotiations with sophisticated private sector players and is in competition with other private sector landlords and property owners.
Section 11(a)
In order to qualify for exemption under section 11(a), the Board must establish that the information:
1. is a trade secret, or financial, commercial, scientific or technical information; and
2. belongs to an institution; and
3. has monetary value or potential monetary value.
[Order 87]
In support of its argument that Records 2 and 3 are exempt from disclosure under section 11(a), the Board submits that:
These records contain commercial information which belongs to the TDSB. For the reasons set out above, the information would have commercial value to a future purchaser if OMB [the Ontario Municipal Board] approval [of the sale of the lands] is not granted.
In my view, both Records 2 and 3 contain information which qualifies as “commercial” information for the purposes of section 11(a). The term “commercial information” has been defined in previous orders relating to similar wording in section 10(1) as follows:
Commercial information is information which relates solely to the buying, selling or exchange of merchandise or services. The term “commercial” information can apply to both profit-making enterprises and non-profit organizations, and has equal application to both large and small enterprises. [Order P-493]