No resolution was possible through mediation, and this appeal was moved to the adjudication stage of the process where it was assigned to me to conduct an inquiry. I commenced my inquiry by issuing a Notice of Inquiry setting out the facts and issues in the appeal to the appellant seeking representations, which I received. Upon review of the appellant’s representations, I determined that it was not necessary to seek representations from the Ministry or the original requester.

RECORDS:

There are 16 records, totaling approximately 190 pages, at issue. A brief description of each record appears in the following table.

DISCUSSION:

THIRD PARTY INFORMATION

The appellant submits that all of the records qualify for exemption under section 17(1), the relevant parts of which 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, 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 so supplied;

(c)        result in undue loss or gain to any person, group, committee or financial institution or agency; or …

Section 17(1) is designed to protect the confidential “informational assets” of businesses or other organizations that provide information to government institutions [Boeing Co. v. Ontario (Ministry of Economic Development and Trade), [2005] O.J. No. 2851 (Div. Ct.)]. Although one of the central purposes of the Act is to shed light on the operations of government, section 17(1) serves to limit disclosure of confidential information of third parties that could be exploited by a competitor in the marketplace [Orders PO-1805, PO-2018, PO-2184, MO-1706].

For section 17(1) to apply in the circumstances of a third party appeal, the appellant 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 17(1) will occur.

Summary of Findings

For the reasons that follow, I find that none of the records at issue in this appeal meet all three requirements of the test for exemption under section 17(1) of the Act and I uphold the decision of the Ministry to release them to the requester.

Part 1:  type of information

In the December 14, 2005 decision letter to the appellant, the Ministry stated that the records at issue were produced as a result of “technical and/or scientific study”.

The types of information listed in section 17(1) have been discussed in prior orders:

Scientific information is information belonging to an organized field of knowledge in 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 a specific hypothesis or conclusion and be undertaken by an expert in the field [Order PO-2010].

Technical information is information belonging to an organized field of knowledge that would fall under the general categories of applied sciences or mechanical arts.  Examples of these fields include architecture, engineering or electronics. While 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 [Order PO-2010].

The records at issue in this appeal are comprised of, or relate directly to, detailed information about the testing and analysis for environmental contamination with volatile organic compounds (VOCs) and other agents carried out on the specified property by an engineering consulting firm.

Based on my review of the records, I am prepared to accept that they contain both technical and scientific information. Specifically, I find that the records contain explanations and descriptions related to the monitoring and testing of the soil and groundwater of the specified property that fit within the definition of technical information. I also find that the information relates to the field of environmental engineering and the testing carried out by experts in the field to determine the presence or absence of contamination by VOCs, etc.; and thereby confirm or deny a preliminary conclusion made about the specified property. As such, the information contained in all of the records meets part one of the test under section 17(1).

Part 2:  supplied in confidence

The purpose of section 17(1) is to protect the informational assets of third parties.  This purpose is reflected in the requirement under part two that it be demonstrated by the party resisting disclosure that the information was “supplied” to the institution [Order MO-1706]. Information may qualify as “supplied” if it was directly supplied to an institution by a third party, or where its disclosure would reveal or permit the drawing of accurate inferences with respect to information supplied by a third party [Orders PO-2020, PO-2043].

In order to satisfy the “in confidence” component of part two, the party resisting disclosure must establish that at the time the information was provided, the supplier of the information had a reasonable expectation of confidentiality, either implicit or explicit. This expectation must have an objective basis [Order PO-2020].

Representations

In the decision letter of December 14, 2005 referred to previously, the Ministry appears to have been of the opinion, or at least to have conceded, that the records at issue were supplied to it in confidence by the appellant. The letter reads, in part, “The Ministry agrees that the information was supplied explicitly in confidence.”

The appellant does not specifically address the “supplied” requirement in his representations. However, in reference to the second part of the section 17(1) test, the appellant states that he was told by Ministry staff to,  

… send the results “in Confidence” to the Ministry of the Environment which I did, not knowing “why” at the time.

Some time later I was contacted by [the requester] to see if I would share the results. I agreed and invited them to my factory and showed them the results[;] they copied the information and took it with them… 

Records were “Supplied”

I have reviewed the records at issue. Some of these were provided directly to the Ministry by the appellant, while others were sent to the Ministry by consultants hired by the appellant. Still others consist of internal Ministry memoranda and correspondence and relate to the information contained in the reports which was provided directly to the Ministry by the appellant or its consultants. Based on my review, I find that the records contain information that was “supplied” by the appellant as required by the first component of part two of the section 17(1) test.

Were Records Supplied “In Confidence”?

I must now consider whether the “supplied” information was provided “in confidence” to the Ministry, that is, whether the supplier (the appellant) held a reasonable and objectively-based expectation of confidentiality. Past orders have established that the circumstances surrounding the supply of the information are relevant in determining the objective basis of the expectation. Such circumstances may include whether the information was:

• Communicated to the institution on the basis that it was confidential and that it was to be kept confidential;

• Treated consistently in a manner that indicates a concern for its protection from disclosure by the affected person (in this case, the company) prior to being communicated to the institution;

• Not otherwise disclosed or available from sources to which the public has access; and/or

• Prepared for a purpose that would not entail disclosure [Orders P-561, PO-2043, PO-2490, MO-2004]

Records 1, 3 and 6 have been marked with words suggesting an intention that they be kept in confidence. There is no such marking or labeling of the other records. However, the presence or absence of words such as “Confidential”, “Private” or “Privileged” is not determinative of the issue.  Records may still meet the requirements of this component of part two of the section 17(1) test notwithstanding the manner in which the record is labeled.

Analysis and Findings

I have taken note of the appellant’s position on the confidentiality of the records, and the Ministry’s apparent agreement with it, as evidenced by its statement to that effect in the December 14, 2005 decision letter. However, I have also considered the fuller context and circumstances of this appeal, and I find that I have not been provided with sufficient evidence to demonstrate a reasonably held expectation of confidentiality on the part of the appellant in supplying the information.

In reviewing the expectation of confidentiality, the mainstay of the appellant’s evidence is that Ministry staff told him to send in documents marked “confidential”. However, as noted previously, such labels are not determinative.

Furthermore, from the information available to me, the appellant seems initially to have been willing to share the results of the environmental testing of his company’s property. The appellant admits that information was shared with the requester, as the owner of another property in the area. It appears from the appellant’s representations to have been done in the spirit of cooperating with that owner to get to the root of the environmental concern. The appellant’s current evinced reluctance to share information with other property owners, or at least with the owner that is now the requester in this appeal, appears to have developed at some later point in the ongoing investigations required by the Ministry.

It is not possible for me to discern from the appellant’s representations and the other information before me at what point the appellant began to evince an intention to exert a greater degree of control over the information generated at the behest of, and provided to, the Ministry. Regardless of this uncertainty, the sequence of events demonstrates that the information has not been consistently treated in a confidential manner and suggests that at least some of the information at issue in this appeal has been disclosed to the requester directly by the appellant.

Furthermore, I am of the view that the appellant’s intentions in seeking to control the transfer of information represent the subjective element of the expectation of confidentiality. In an appeal under the Act, I must be satisfied that an objective basis to that expectation exists. For assistance in reviewing the objective basis of the expectation in circumstances similar to those in this appeal, I reviewed previous orders that addressed the particular legislative context in which these types of records are created.

In Order MO-2004, Adjudicator John Swaigen also considered the disclosure of an environmental contamination investigation report. In that appeal, as here, Adjudicator Swaigen found himself without evidence of communications between the appellant owner of a contaminated property and the City of North Bay “as to their expectations, either at the time the information was supplied to the City or before or since that time.” However, in making a finding that the expectation of confidentiality did not have an objective basis in that case, the Adjudicator took into consideration the broader context of the supply of the information, including

the nature of the problem addressed in the record at issue (contamination or potential contamination of soil, groundwater and structures); disclosure requirements imposed by authorities …, and the fact that the Ministry of the Environment does not consider related information provided to it to be confidential, as indicated by the appellant’s evidence that “the Ministry of the Environment released three of the four records, without claiming any exemption”; the number and nature of different authorities involved; the potential impacts on public health and safety and on the environment of such situations …; the number of surrounding properties and public infrastructures potentially impacted by the situation …; and the fact that the information relates in part to monitoring that was done on the properties in addition to those owned by the affected person and the City, such as the appellant.

In my view, although not all of the considerations described in this portion of Order MO-2004 apply in the present appeal, many of them do. Furthermore, I note that Adjudicator Swaigen also concluded that records created in the context of an environmental regulatory scheme are reasonably and necessarily subject to a “diminished expectation of confidentiality.”

Furthermore, while reporting provisions in statutes and regulations that potentially cover this kind of situation require disclosure to public authorities rather than disclosure to the public (except for section 11(2) of the Health Protection and Promotion Act, which requires a Medical Officer of Health to report publicly the results of investigations to complainants), such provisions also suggest that there is a diminished expectation of confidentiality in such circumstances [see, for example, Section 32(2) of Ontario Regulation 217/01 under the Technical Standards and Safety Act; section 13(1) of the Environmental Protection Act; Ontario Water Resources Act, section 32; and Health Protection and Promotion Act, sections 11(1) and (2)].

I agree with this approach and adopt it for the purposes of this appeal.

Having reviewed all of the information before me, I conclude that I have not been provided with sufficient evidence to support a finding that a business entity in the position of the appellant could have a reasonable expectation of confidentiality with respect to information supplied to a public authority in the position of the Ministry, which is tasked with the responsibility of overseeing statutes such as the Environmental Protection Act and the Ontario Water Resources Act. Accordingly, I find that the second part of the test for exemption under section 17(1) is not satisfied with respect to the records at issue in this appeal.  

Although it is not strictly necessary for me to do so, for the sake of completeness, I will review the third part of the section 17(1) test.

Part 3: Harms

To meet part 3 of the test, the appellant must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm.” Evidence amounting to a speculation of possible harm is not sufficient. [Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)].

The failure of a party resisting disclosure to provide detailed and convincing evidence will not necessarily defeat the claim for exemption where harm can be inferred from other circumstances.  However, only in exceptional circumstances would such a determination be made on the basis of anything other than the records at issue and the evidence provided by a party in discharging its onus [Order PO-2020].

Representations

As previously noted, the Ministry was not asked to submit representations during my inquiry into this appeal and only at the interim decision stage did it refer to reliance upon any of the particular paragraphs of section 17(1), namely (a) and (c). The appellant’s representations only briefly and tangentially touch on the issue of harms and make no specific reference to any component of section 17(1). However, information provided in the appellant’s response to the Ministry’s notification under section 28 of the Act, as well as the Ministry’s decision letter, lends additional context for the appellant’s views about the harms forecast in the event of disclosure of the records.

In the appellant’s December 7, 2005 submissions to the Ministry, he describes the history of his company’s involvement with the Ministry, and refers to prompt compliance with the testing required by the Ministry, which was conducted at the company’s expense. The appellant states:

None of the tests have shown any sign that this site has been a contaminator or that it could possibly be the source of contamination. In spite of this, the Ministry continues to harass us with more actions.

The appellant submits that the required environmental investigations have

… cost this company plenty; not only monetarily, but also psychologically … as we are continually concerned about our future.

I feel that any release of this information that you sent me would be very detrimental to this company[;]… all the test results indicate that this information would only “arm the enemy” and I do not see why this is necessary.

In the closing paragraph of this letter, the appellant seems to be expressing concern about the Ministry making an “arbitrary decision [about disclosure] which could be detrimental to this business and its 50 employees.”

In the representations provided to me during this inquiry, the appellant described how he had initially shared information about the testing with the requester. Portions of these submissions have already been quoted in the segment addressing part 2 of the section 17(1) test. In addition, the appellant explained that the requester’s,

… Representative also told me at this time … that they had an environmental insurance policy but they had to blame someone else before they could collect.

Since this time my life has been a misery. Their lawyer contacted my lawyer and I have spent thousands of dollars on lawyers and more tests all of which support the original findings. However, now my lawyers are telling me not to give them anything and this is why I don’t want to release the results…

The appellant makes submissions that highlight differences between his company and the requester in this appeal. In particular, the appellant states:

[The requester is] a multi-million dollar company; we are not…

I voluntarily gave them information before and they used it against me and it has cost me many thousands dollars of my time…

I cannot afford more lawyers unlike [the requester].

If you release this information [the requester] will probably bankrupt this company.

Most important, [the requester] sold the property in February 2006. All they want is to get something from their insurance company. They no longer have a vested interest, so why should we give them anything.

Why do we have information privacy laws which can easily be circumvented with lots of money and lawyers?

In conclusion, I do not want to give up information to these people as it will harm me and those who work with me. The Ministry of the Environment is satisfied with the results and that should be enough.

Analysis and Findings

I wish to preface my findings on part 3 of the third party information exemption with a brief response to one of the concerns expressed by the appellant. The appellant appears to believe that the requester’s recourse to an appeal under the Act in seeking to obtain the records at issue effectively frustrates “information privacy laws”, which might otherwise have operated to protect those records from disclosure.

A brief overview of the purpose section of the Act, which governs access requests to provincial institutions, as well as appeals to this office, may be of assistance. Section 1 of the Act reads:

The purposes of this Act are,

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(i)    information should be available to the public,

(ii)   necessary exemptions from the right of access should be limited and specific, and

(iii) decisions on the disclosure of government information should be reviewed independently of government; and

(b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information.

The mandate and function of this office, and its authority to review the decisions of institutions, such as the Ministry in this case, is clearly set out in the Act. My role as an adjudicator in deciding this appeal is to act as an independent reviewer of the Ministry’s decision to grant access to information it held about the appellant’s business property - a decision made after the Ministry invited and considered submissions from the appellant about why the section 17(1) exemption should apply to the information in the records.

Sections 17(1)(a) and (c)

Section 17(1)(a) requires the party resisting disclosure - in this case the appellant - to demonstrate that disclosure could reasonably be expected to significantly prejudice its competitive position or significantly interfere with the contractual or other negotiations of a person, group of persons, or organization. The application of section 17(1)(c) requires proof that disclosure of the record result in undue loss or gain to any person, group, committee or financial institution or agency.

I have some sympathy for the appellant’s concern about the disparity between the size of his company and that of the requester. Indeed, there is some support for the contention that the relative size or “power” of the parties may be relevant in the determination of the harms issue, particularly as regards the quantification of the significance of the purported harm in section 17(1)(a).

In Order 57-1995, former B.C. Information and Privacy Commissioner, David Flaherty, decided an appeal brought by a large petroleum corporation against the decision of the B.C. Ministry of Environment, Lands and Parks to release environmental contamination reports to a community group. Former B.C. Commissioner Flaherty acknowledged that “the ability of the third party to withstand harm” may be a factor in making a decision on the third party information exemption. Referring to a government access to information policy and procedure manual, the former B.C. Commissioner noted that “What would significantly harm a small business, for example, might result in minimal damage to a much larger company.” In the circumstances of that appeal, the former B.C. Commissioner concluded that any possible harm the third party petroleum company might suffer to its competitive position or negotiations by disclosure of the records was mitigated by its large size to the extent that any harm experienced could not be characterized as significant within the meaning of the section.

I agree with the approach taken by the former B.C. Commissioner in Order 57-1995, and in a measure of deference to the appellant’s concern, I accept that the relative size of the parties could be relevant in my determination of this part of the test.

However, in the present appeal, the appellant has not provided the required “detailed and convincing” evidence which would demonstrate how the disparity in its financial position relative to the requester’s may tie in with, or otherwise create a nexus between, disclosure and harm. In fact, it has proven technically unnecessary for me to entertain consideration of the significance of the projected harm for the purposes of section 17(1)(a) because this consideration cannot serve, in and of itself, to substitute for evidence of prejudice or interference that is absent.

It may be argued that the “loss” contemplated by section 17(1)(c) is invoked by the appellant’s submission that disclosure of the records at issue through this inquiry will “probably bankrupt” the company. However, no further elucidation of how disclosure of the records could reasonably be expected to lead to this result was provided for my consideration. Certainly, any expenses incurred as a consequence of responding to requests for records under the Act do not constitute an "undue harm" as that term is used in section 17(1)(c) [see Order PO-1732-F].

I considered the possibility that the appellant is alluding to the extent of the burden imposed by the costs his company has incurred with the environmental testing required by the Ministry, which he may infer will continue if the records are disclosed. However, in my view, this category of expense does not constitute a loss of the nature contemplated by section 17(1)(c). The information was compiled as a result of the appellant’s compliance with a statutory obligation to investigate possible contamination on its property. In the circumstances, I do not accept that any loss or costs so incurred are “undue”, nor would I give credence to the potential argument that any possible gain accruing to the requester, or another party, through obtaining access to the records at issue is “undue”.

In the absence of sufficient evidence to explain how the records at issue might reasonably be expected to harm the appellant’s competitive position or negotiations, or result in undue loss to his company, or undue gain to another, I turned to a review of the information contained in the records at issue themselves. In the final analysis, however, a careful review of their contents does not lend any support for a finding that their disclosure could result in the harms these sections seek to prevent.

Indeed, following review of the records, I was struck by the apparent contradiction inherent in the appellant’s position. The appellant has submitted on the one hand that he does not want the information released to the requester because “it will harm me and those who work with me.” In the next sentence, the appellant states, “The Ministry of the Environment is satisfied with the results and that should be enough.” The appellant’s position that his property is not the source of the area contamination appears to contradict any suggestion that harm could result from disclosure of records that could prove that very point. Viewed in this light, it is at least arguable that the potential for harm is greater if the records are not disclosed. In my view, this is the antithesis of harm.

In summary, I find that the appellant has not established that disclosure could reasonably be expected to result in any prejudice to its competitive position, interference with its contractual or other negotiations, or result in undue loss or gain to any “person, group, committee or financial institution or agency.”

Given that the appellant has not established that the harms outlined in sections 17(1)(a) or (c) could reasonably be expected to occur should the records be disclosed, I find that the third requirement for the application of the section 17(1) exemption has not been met.

In view of the fact that I have found that parts 2 and 3 of the test have not been satisfied, I find that the records are not exempt under section 17(1).

ORDER:

1.                  I uphold the decision of the Ministry to disclose the records.

2.                  I order the Ministry to disclose all the records at issue in this appeal to the original requester, subject to the severances made to them pursuant to section 21(1) of the Act, by sending clean copies to the requester no later than April 27, 2007, but no earlier than April 23, 2007.

3.                  To verify compliance with provision 2 of this order, I reserve the right to require the Ministry to provide me with a copy of the records disclosed to the requester.  

Original Signed By                                                                             March 23, 2007                      

Daphne Loukidelis