Access to Information Orders
Decision Information
• Facility Planning Study and Business Case for the consolidated courthouse project in Kitchener-Waterloo.
• Section 13(1) (advice to government) - partly upheld
• Section 14(1(e)(endanger life or safety) - partly upheld
• Section 14(1)(i), (j) and (k) (security) - not upheld
• Section 14(1)(l)(facilitate commission of unlawful act) - not upheld
• Section 18(1)(a)(valuable government information) - not upheld
• Section 18(1)(c)(economic and other interests) - partly upheld
• Section 18(1)(d), (e) and (f) (economic and other interests) - not upheld
• Section 18(1)(g)(proposed projects of an institution) - not upheld
• Section 23 (public interest override) - not upheld
• Ministry's decision partially upheld. Portions of the records ordered disclosed.
Decision Content
NATURE OF THE APPEAL:
The Ministry of the Attorney General (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for access to the following information:
[T]he planning study conducted in 2006 by the architectural firm [named firm] for the consolidated courthouse project in Kitchener (Waterloo Region).
The final version of the report was presented to the Ministry of the Attorney General on July 31, 2006.
Please also include any draft version of the report.
The Ministry located three records responsive to the request and denied access to them pursuant to section 13(1) (advice or recommendations), sections 14(1)(e) (endanger life or safety), 14(1)(i), 14(1)(j), and 14(1)(k) (security), and section 18(1)(g) (proposed plans of an institution) of the Act.
The requester, now the appellant, appealed the Ministry’s decision.
During the course of mediation, the Ministry advised that it was claiming additional discretionary exemptions to withhold the responsive records. The additional discretionary exemptions claimed are: section 14(1)(l) (facilitate commission of an unlawful act) and, sections 18(1)(a) (valuable government information), 18(1)(c), 18(1)(d), 18(1)(e) and 18(1)(f) (economic and other interests) of the Act.
As mediation did not resolve the issues, the file was moved to the adjudication stage of the appeal process.
I began my inquiry into this appeal by sending a Notice of Inquiry to the Ministry, initially. The Ministry provided representations in response. I then sent a copy of the Notice of Inquiry, along with a complete copy of the Ministry’s representations, to the appellant. The appellant responded with representations. As the appellant’s representations raised the possible application of the public interest override provision at section 23 of the Act, I then sought reply representations from the Ministry. The Ministry provided representations in reply.
RECORDS:
There are three records at issue in this appeal:
• Record 1 – Facility Planning Study and Business Case, Final Report, July 28, 2006 (pages 1 to 303);
• Record 2 – Facilities Program, Waterloo Consolidated Courthouse, Final Draft, May 2006 (pages 304 to 403);
• Record 3 – Facilities Program and Planning Study for the Region of Waterloo Consolidated Courthouse: Planning and Real Estate Analysis, Draft, April 21, 2006 (pages 404 to 444).
Record 1 is a Facility Planning Study and Business Case in respect of the proposed project to build a consolidated courthouse in the Kitchener (Waterloo) region. Records 2 and 3 are earlier drafts of portions of Record 1; Record 2 is a Facilities Program (the final version is found on pages 62 through 159 in Record 1) and Record 3 is a Planning and Real Estate Analysis (the final version is found on pages 160 through 203 of Record 1).
All of the records have been prepared by an architecture firm retained by the Ministry.
DISCUSSION:
ADVICE TO GOVERNMENT
Section 13(1) 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.
The purpose of section 13 is to ensure that persons employed in the public service are able to freely and frankly advise and make recommendations within the deliberative process of government decision-making and policy-making. The exemption also seeks to preserve the decision maker or policy maker’s ability to take actions and make decisions without unfair pressure [Orders 24, P-1398, upheld on judicial review in Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner) (1999), 118 O.A.C. 108 (C.A.)].
“Advice” and “recommendations” have a similar meaning. In order to qualify as “advice or recommendations”, the information in the record must suggest a course of action that will ultimately be accepted or rejected by the person being advised [Orders PO-2028, PO-2084, upheld on judicial review in Ontario (Ministry of Northern Development and Mines) v. Ontario (Assistant Information and Privacy Commissioner), [2004] O.J. No. 163 (Div. Ct.), aff’d [2005] O.J. No. 4048 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 564; see also Ontario (Ministry of Transportation) v. Ontario (Information and Privacy Commissioner), [2005] O.J. No. 4047 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 563].
Advice or recommendations may be revealed in two ways:
- the information itself consists of advice or recommendations, or
- the information, if disclosed, would permit one to accurately infer the advice or recommendations given.
[Orders PO-2028, PO-2084, upheld on judicial review in Ontario (Ministry of Northern Development and Mines) v. Ontario (Assistant Information and Privacy Commissioner), cited above]
Examples of the types of information that have been found not to qualify as advice or recommendations include:
- factual or background information,
- analytical information,
- evaluative information,
- notifications or cautions,
- views,
- draft documents, and
- a supervisor’s direction to staff on how to conduct an investigation.
[Order P-434; Order PO-1993, upheld on judicial review in Ontario (Ministry of Transportation) v. Ontario (Information and Privacy Commissioner), [2004] O.J. No. 224 (Div. Ct.), aff’d [2005] O.J. No. 4047 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 563; Order PO-2115; Order P-363, upheld on judicial review in Ontario (Human Rights Commission) v. Ontario (Information and Privacy Commissioner) (March 25, 1994), Toronto Doc. 721/92 (Ont. Div. Ct.); Order PO-2028, upheld on judicial review in Ontario (Ministry of Northern Development and Mines) v. Ontario (Assistant Information and Privacy Commissioner), [2004] O.J. No. 163 (Div. Ct.), aff’d [2005] O.J. No. 4048 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 564]
Representations
Ministry’s representations
The Ministry takes the position that the Records 1, 2 and 3 are exempt, in their entirety, pursuant to the discretionary exemption at section 13(1) of the Act. The Ministry submits that all of the records contain conclusions and findings of persons employed by it and other stakeholders to the project and that the records contain advice and recommendations within the meaning of the exemption at section 13(1). The Ministry submits:
The Records at issue are facility program and planning studies prepared by persons employed (experts and consultants) by the Attorney General and other project stakeholders to help define a program for the creation of a consolidated courthouse in the Kitchener ( Waterloo) Region. The Records, which are not final plans, detail the potential impact, scope, and parameters of the possible construction of that consolidated courthouse. The Records also detail the needs of the region, how the project could/would address those needs, as well as advice as to possible locations for the facility and the services that could be provided by same. These Records will assist the government of Ontario make decisions and policies based on the advice and recommendations contained within.
...
Furthermore, because the advice and recommendations could impact and affect existing courthouse facilities and the scope of their operations and staffing, as well as sensitive security matters and procedures to the extent of reasonably putting persons at risk of harm... the disclosure of these Records could inhibit the free flow of advice or recommendations to the government.
The Ministry states that this office has previously held that documents that were not in the form of advice or recommendations, whose disclosure could potentially reveal the advice or recommendations of a public servant or a consultant as to their content and the actions to be taken by the government in managing relations, fall within the ambit of subsection 13(1) [Orders P-1619, P-1620, P-1621]. The Ministry submits that if it is not found that the records contain information that may be considered advice or recommendations, they contain information that “could potentially reveal the advice or recommendations of a public servant as to their content and the actions to be taken by the government” and disclosure would similarly be prohibited under section 13(1).
Appellant’s representations
The appellant begins her submissions by quoting from portions of the Public Government for Private People: The Report of the Commission on Freedom of Information and Individual Privacy, 1980 (the Williams Commission Report) that address the section 13 exemption. She first quotes a portion of the report (on page 292) that addresses analytical or evaluative material:
A second point concerns the status of material that does not offer specific advice or recommendations, but goes beyond mere reportage to engage in analytical discussion of the factual material or assess various options relating to a specific factual situation. In our view, analytical or evaluative materials of this kind do not raise the same kinds of concerns as do recommendations. [Emphasis added by appellant].
The appellant then quotes a portion of the Williams Commission Report (also on page 292) which distinguishes between professional opinions and advice or recommendations that suggest one course of action be taken over another:
The professional opinions indicate that certain inferences can be drawn from a body of information by applying the expertise of the profession in question. The advice of the public servant recommends that one of a possible range of policy choices be acted on by the government.
The appellant then refers to Order PO-2028, which she submits establishes a relatively narrow interpretation of advice and recommendations, because, in that order, former Assistant Commissioner Tom Mitchinson stated:
It is only advice, not other kinds of information such as factual, background, analytical or evaluative material, which could reasonably be expected to inhibit the free flow of expertise and professional assistance within the deliberative process of government.
She also refers to Order PO-1631, in which Senior Adjudicator David Goodis found that records containing “pros” and “cons” of various stated options could be considered exempt. She submits that in Order PO-1631, Senior Adjudicator Goods found that “by giving weight to one or more of the options over others, the records could be seen as offering implied recommendations.”
Finally, the appellant submits:
The Ministry [states] that the records contain “conclusions and findings”.
To qualify for exemption under section 13 of the Act the records must reveal some preferred course of action. They cannot merely evaluate the various options and outline the various facts relating to a proposed project. Conclusions and findings are not akin to advice and recommendations. I request that all portions of the record that do not explicitly or implicitly reveal a suggested course of action by the government must be released.
The Ministry has offered no evidence that the records at issue will reveal advice or recommendations on a preferred course of action, beyond outlining existing factual information, providing some analysis and various options surrounding the possible location, formation and budget of the courthouse.
Analysis and findings
As mentioned by the appellant, the authors of the Williams Commission Report articulated an approach to the “advice and recommendation” exemption claim which became section 13(1). In discussing the policy rationale for including an exemption of this nature, which is commonly present in freedom of information legislation, the report stated, at page 292:
A second point concerns the status of material that does not offer specific advice or recommendations, but goes beyond mere reportage to engage in analytical discussion of the factual material or assess various options relating to a specific factual situation. In our view, analytical or evaluative materials of this kind do not raise the same kinds of concerns as do recommendations. Such materials are not exempt from access under the U.S. act, and it appears to have been the opinion of the federal Canadian government that the reference to “advice and recommendations” in Bill C-15 would not apply to material of this kind [16].
Similarly, the U.S. provision and the federal Canadian proposals do not consider professional or technical opinions to be “advice and recommendations” in the requisite sense. Clearly, there may be difficult lines to be drawn between professional opinions and “advice.” Yet, it is relatively easy to distinguish between professional opinions (such as the opinion of a medical researcher that a particular disorder is not caused by contact with certain kinds of environmental pollutants, or the opinion of an engineer that a particular high-level bridge is unsound) and the advice of a public servant making recommendations to the government with respect to a proposed policy initiative. The professional opinions indicate that certain inferences can be drawn from a body of information by applying the expertise of the profession in question. The advice of the public servant recommends that one of a possible range of policy choices be acted on by the government.
Following a careful review of the records, I find that the majority of the information contained within them does not reveal advice or recommendations within the meaning of section 13(1). The records lay out factual or background information and then engage in an analytical or evaluative discussion and assessment on how to accomplish the goals of the project based on the specific factual circumstances that surround it. The records outline the professional and technical opinions or views on the project reached by the consultant architecture firm by applying the expertise of that profession to the relevant facts. In my view, the majority of the information contained in the records falls squarely within the types of information contemplated by either the Williams Commission or found in prior orders of this office as falling outside of the intended scope of the “advice or recommendations” exemption. Specifically, most of the information at issue is best described as:
• factual or background information,
• analytical or evaluative information, and
• professional or technical opinions.
Although I have found that the majority of the information in Records 1, 2 and 3 does not amount to “advice or recommendations” as those terms have been defined, I find that there is one specific section in the records that contains information that reveals a suggested course of action and qualifies, thereby, for exemption under section 13(1).
Specifically, I find that the section entitled “Recommendations” in Record 1, at page 200, and the corresponding section in Record 3, at page 443, contains information that qualifies as “advice or recommendation”. While, in my view, the first three bullet points on that page contain factual or analytical information, the last sentence of that page contains more than mere information of a factual, analytical or evaluative nature. Rather, the last sentence clearly reveals a specific course of action suggested by the architectural firm that prepared the report and put before the Ministry for the decision makers on the project to ultimately accept or reject.
Accordingly, I find that the last sentence on pages 200 and 443 can be properly characterized as “advice or recommendations” within the meaning of the terms and, subject to my discussions on the Ministry’s exercise of discretion and the possible application of the public interest override provision at section 23, qualify for exemption under section 13(1).
As I have found that the remainder of the information in Records 1, 2 and 3 does not qualify for exemption under section 13(1) I will now continue my analysis to determine whether any of the other exemption claims apply to that information.
LAW ENFORCEMENT
The Ministry claims that the discretionary exemptions at sections 14(1)(e), (i), (j), (k) and/or (l) apply to Record 1 and 2, in their entirety. The relevant portions of 14(1) read:
(1) A head may refuse to disclose a record where the disclosure could reasonably be expected to,
(e) endanger the life or physical safety of a law enforcement officer or any other person;
(i) endanger the security of a building or the security of a vehicle carrying items, or of a system or procedure established for the protection of items, for which protection is reasonably required;
(j) facilitate the escape from custody of a person who is under lawful detention;
(k) jeopardize the security of a centre for lawful detention; or
(l) facilitate the commission of an unlawful act or hamper the control of crime.
The term “law enforcement” is used in several parts of section 14, and is defined in section 2(1) of the Act as follows:
“law enforcement” means,
(a) policing,
(b) investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, and
(c) the conduct of proceedings referred to in clause (b)
The term “law enforcement” has been found to apply in the following circumstances:
- a municipality’s investigation into a possible violation of a municipal by-law [Orders M-16, MO-1245]
- a police investigation into a possible violation of the Criminal Code [Orders M-202, PO-2085]
- a children’s aid society investigation under the Child and Family Services Act [Order MO-1416]
- Fire Marshal fire code inspections under the Fire Protection and Prevention Act, 1997 [Order MO-1337-I]
Generally, the law enforcement exemption must be approached in a sensitive manner, recognizing the difficulty of predicting future events in a law enforcement context [Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3d) 197 (Div. Ct.)].
Except in the case of section 14(1)(e), where section 14 uses the words “could reasonably be expected to”, the institution must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm”. Evidence amounting to speculation of possible harm is not sufficient [Order PO-2037, upheld on judicial review in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), [2003] O.J. No. 2182 (Div. Ct.), Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)].
In the case of section 14(1)(e), the institution must provide evidence to establish a reasonable basis for believing that endangerment will result from disclosure. In other words, the institution must demonstrate that the reasons for resisting disclosure are not frivolous or exaggerated [Ontario (Information and Privacy Commissioner, Inquiry Officer) v. Ontario (Minister of Labour, Office of the Worker Advisor) (1999), 46 O.R. (3d) 395 (C.A.)].
Similarly, in the case of “health and safety” related exemptions such as sections 14(1)(i), 16 and 20, which use the words “could reasonably be expected to”, the standard of proof is that the institution must provide evidence to establish a reasonable basis for believing that endangerment will result from disclosure. In other words, it must be demonstrated that the reasons for resisting disclosure are not frivolous or exaggerated [Order MO-1832].
It is not sufficient for an institution to take the position that the harms under section 14 are self-evident from the record or that a continuing law enforcement matter constitutes a per se fulfilment of the requirements of the exemption [Order PO-2040; Ontario (Attorney General) v. Fineberg].
Representations
Ministry’s representations
The Ministry’s position is that the disclosure of Records 1 and 2, in their entirety, could reasonably be expected to endanger the life and physical safety of law enforcement officers as well as others and is, therefore, exempt pursuant to the exemption at section 14(1)(e). The Ministry submits:
Throughout the entire contents of these records, are detailed discussions of proposed plans for a consolidated judicial courthouse in the Kitcher (Waterloo) Region as well as detailed floor plans of existing Courthouses. These detailed plans indicate layouts, exits, access points, parking facilities, security features, prisoner handling facilities and other sensitive particulars in respect to judicial courthouses that handle, or will be expected to handle, matters involving persons accused and/or convicted of various crimes under the Criminal Code and other statutes. These Reports also detail procedures for the transport of prisoners and staffing at the Courthouse(s). The disclosure of these sensitive details and particulars could directly endanger law enforcement officers charged with the handling of prisoners and criminally accused in or around the facilities by hindering the officers’ ability to ensure the security of the building and to limit/prevent the access and movement of prisoners and/or other dangerous offenders.
The Ministry also submits that the records contain detailed plans and descriptions of “other areas of the proposed consolidated courthouse and existing courthouses that would be, or are used by persons other than law enforcement officers and who are reasonably seen as vulnerable to the threat of criminal activities.” The Ministry identifies these areas as including:
• Courtrooms, including high security courtrooms
• Judges’s chambers
• Jury rooms
• Court Staff and Administration offices
• Prisoner and detention zones
• Private zones for judiciary and other Court staff
• Crown Attorney’s Offices
• Victim Witness Assistance facilities
Further addressing the possible application of the exemption at section 14(1)(e), the Ministry submits:
Even those portions of the records that do not contain explicit detailed plans of the proposed courthouse or existing facilities, contain information from which one could reasonably infer information that is exempted under the Act and could put law enforcement officers and others at similar personal risk.
As a result of all of the above, it is submitted that the classes of persons that could be reasonably endangered by the disclosure of Records 1 and 2 include: law enforcement officers, the Judiciary, Crown Attorneys and other counsel, Court staff, witnesses, prisoners, and the general public.
It is the Ministry’s position that in addition to endangering law enforcement officers and others, the disclosure of Records 1 and 2 could also endanger the security of a building and vehicles within the meaning of the exemption at section 14(1)(i). The Ministry submits:
These records contain explicit detail on the locations and handling of court records and files, exhibits, evidence and other documents used in the general administration of court matters as well as criminal prosecutions. These records include details of how and where these sensitive materials could be transported to and from the proposed consolidated courthouse as well as locations where they could be stored at that courthouse. These records also detail how sensitive materials could potentially be transported between, as well as stored at, existing courthouses in the region. Any tampering or improper handling of these materials and documents could affect ongoing judicial matters and criminal prosecutions as well as the administration of justice. Thus, it is important that the transport and storage of these materials and documents be securely maintained.
Also, these records detail locations, procedures and access points for vehicles carrying prisoners between secure zones and facilities. The disclosure of these records could endanger the security of these vehicles for obvious reasons.
Addressing the possible application of the exemption at section 14(1)(j), the Ministry argues that disclosure of Records 1 and 2 could reasonably be expected to facilitate the escape of a person under lawful detention. The Ministry submits:
As outlined above, these records contain detailed information including floor plans, staffing, prisoner handling procedures, detention cells, and access and exit points of the project and existing courthouse. The records also detail information about the transfer of prisoners between secured facilities. These details, if disclosed, can reasonably be inferred as information that could assist prisoners escape lawful custody.
Finally, addressing its claim that section 14(1)(k) applies to Records 1 and 2, the Ministry submits:
[F]or the reasons already outline above, the disclosure of Records 1 and 2 could reasonably be expected to jeopardize the security of centres for lawful detention, which includes the proposed consolidated courthouse as well as existing Courthouses detailed in the Records. These facilities maintain, or are expected to maintain, prisoner security and detention zones.
During mediation, the Ministry claimed section 14(1)(l) as an additional discretionary exemption. However, in its representations it does not make any specific submissions on the possible application of that exemption. Nevertheless, as the Ministry’s submissions on the other parts of section 14(1) can be said to inform its claim that disclosure of Records 1 and 2 could reasonably be expected to facilitate the commission of a unlawful act or hamper the control of crime, I will nevertheless consider section 14(1)(l) in my analysis.
Appellant’s representations
The appellant submits that she is “less concerned with gaining access to detailed site plans for the courthouse.” However she submits that she recognizes that there is “information within the site plans that may be considered to be exempt and other information that should be disclosed.” She submits:
[I]nformation that should be disclosed would include, at minimum, plans relating to portions of the courthouse that are normally open and accessible to the public.
These include, the exterior, court rooms, administrative offices usually located in the front of the courthouse where the public accesses court documents, washrooms. Detailed plans about the configuration of the courtrooms themselves should not be exempt as the public is typically allowed into a courtroom.
Unlike police stations or detention centres or prisons, court houses are public buildings. Any member of the public is free to enter a courthouse, ask for court records, watch bail hearings, trials, sentencing hearings and other court processes with rare exceptions.
Members of the public can use the washrooms, sit on benches, consult with lawyers and Victim Witness Assistance personnel. They can, in some cases, eat in a cafeteria intermingling with judges and lawyers and police officers.
In short, there are many, many aspects to a courthouse that are fully open to the public and this openness strikes at the heart of our judicial system. The openness of courthouses to the public recognizes the importance of public oversight of the judicial system.
It is difficult without seeing the Ministry’s record to determine if they have sufficient detail to reasonably endanger the security of the building, system procedure or person, or facilitate an escape from lawful custody.
I submit that if they do not, these records should be released. At minimum, any records relating to the publicly accessible portions of the courthouse should be released.
As well, section 33(1)(b) of the Act requires that an institution release:
Instructions to, and guidelines for, officers of the institution on the procedures to be followed, the methods to be employed or the objectives to be pursued in their administration or enforcement of the provisions of any enactment or scheme administered by the institution that affects the public.
Therefore, any portions of the document that contain guidelines for staff procedures, such as prisoner handling and transportation procedures, should be released.
Analysis and findings
Section 14(1)(e)
As noted above, for section 14(1)(e) to apply, the institution must provide evidence to establish a reasonable basis for believing that the life or physical safety of a law enforcement officer or any other person will be endangered if the records at issue are disclosed. In other words, the institution must demonstrate that the reasons for resisting disclosure are not frivolous or exaggerated [Ontario (Information and Privacy Commissioner, Inquiry Officer) v. Ontario (Minister of Labour, Office of the Worker Advisor)].
Unlike the other sections of 14(1), for section 14(1)(e) to apply, the harm must be possible; it need not be probable. However, despite the distinction drawn with other harms based exemptions, the Court of Appeal has held that under section 14(1)(e), the institution must provide “detailed and convincing “evidence of a reasonable expectation of harm. [Big Canoe v. Ontario (Minister of Labour) (1999), 181 D.L.R. (4th) 603 (C.A.)].
Based on my review of Records 1 and 2 and having taken into consideration the representations submitted by the parties, I am satisfied that the disclosure of certain portions of Record 1 could reasonably be expected to endanger the life or safety of a law enforcement officer or some other person as contemplated by section 14(1)(e). In addition, I find that the reasons for resisting disclosure of those portions are not frivolous or exaggerated. Specifically, section 3.0 of Record 1 is entitled “Review of Existing Studies and Reports” and contains a review of the three existing courthouse facilities within the Kitchener-Waterloo Region to help determine the operational and functional requirements of the proposed consolidated courthouse. Although, much of this section contains factual information such as the location of the existing courthouses, their square footage, details of the types and number of individual components that make up the courthouse (including courtrooms, public areas, offices for the judiciary, crown attorneys, and court staff), this section also includes floor plans of all three of the existing courthouses identifying areas that are public, secure (in-custody) and private (judiciary).
Bearing in mind the difficulty of predicting future events in a law enforcement context (see Ontario (Attorney General) v. Fineberg, cited above), I accept that disclosure of all of the detailed floor plans of the existing courthouses would reveal details about the secure areas of them, including prisoner handling facilities that, were they disclosed, could reasonable be expected to endanger the life or physical safety of law enforcement officers charged with the handling of prisoners and hinder their ability to ensure the security of the building for staff and the public. I also accept that the disclosure of the detailed plans of other areas of the existing courthouses that are not generally accessible to the public, such as judges’ chambers and staff offices, could reasonably be expected to facilitate the commission of breaches of security thereby endangering the life or physical safety of the individuals who use those areas. Accordingly, I find that the Ministry has provided the requisite detailed and convincing evidence to support a conclusion that disclosure of the floor plans of the existing courthouses could reasonably be expected to facilitate the commission of breaches of security in those facilities, thus endangering Court personnel and members of the public.
However, I am not satisfied that the Ministry has provided sufficiently detailed and convincing evidence to demonstrate that disclosure of any of the remaining information in Record 1 or any of the information in Record 2 could reasonably be expected to endanger the life or physical safety of a law enforcement officer or any other person.
The records are designed to act as a business case for the proposed consolidated courthouse in the Kitchener-Waterloo region. The majority of the information contained in them is factual or analytical information that outlines the needs and requirements for the facility. In doing so, the records identify the people and organizations that will occupy and operate in the courthouse and break the space down into different components where those functions will be performed. The records identify the different types and number of staff that will be working in the various different components of the courthouse and explain in general terms some of their day to day tasks for the purposes of determining the spatial and organizational requirements of the building. The records also contain abstract plans or diagrams and descriptions of different components of the courthouse and the suggested spatial relationship between the different elements. Additionally, the records, which the Ministry has previously stated “are not final plans”, outline several different possible options for the layout of the proposed courthouse. The records also contain external and internal photographs of the existing courthouses in the region.
Based on my close review of this information, I do not accept that this information, as it appears in the records, is sufficiently detailed for disclosure to reasonably be expected to result in the endangerment of the life or physical safety of a law enforcement officer or any other person. Moreover, in my view, the Ministry has not provided the requisite “detailed and convincing evidence” to establish the necessary link between the specific information contained in the records to the possibility of the harm contemplated by section 14(1)(e).
In sum, I find that all of the floor plans relating to the existing courthouses in Record 1 are, subject to my review of the Ministry’s exercise of discretion and my determination of the possible application of the public interest override provisions at section 23, exempt from disclosure under section 14(1)(e). I find that none of the remaining information in Record 1 or any of the information in Record 2 qualifies for exemption.
As I have found section 14(1)(e) applies to the floor plans of the existing courthouses, it is not necessary for me to determine whether any of the other exemptions claimed to those portions of the records apply. I will, however, continue my analysis to determine whether any of the other exemptions claimed may apply to information that remains at issue in Records 1 and 2.
Section 14(1)(i)
As noted above, the use of the words “could reasonably be expected to” in section 14(1)(i) requires the institution to provide “detailed and convincing” evidence to establish a “reasonable expectation of harm.” Evidence amounting to a speculation of possible harm is not sufficient [Order PO-2037, upheld on judicial review in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner)].
The Ministry takes the position that disclosure of Records 1 and 2 could reasonably be expected to endanger the security of a building, namely the proposed consolidated courthouse as well as the existing courthouses in the region. The Ministry also takes the position that disclosure of the information could reasonably be expected to endanger the security of vehicles that transport sensitive materials such as court records, files, exhibits, and evidence, as well as prisoners, between secure zones and facilities.
I have already found that the floor plans of the existing courthouses that outline secure areas as areas not generally known to the public are exempt under section 14(1)(e). From my review of the remaining portions of the records, I do not accept the Ministry’s argument that they contain “explicit detail” about “how sensitive materials could potentially be transported between, as well as stored at” either existing courthouses in the region or the proposed consolidated courthouse. I also do not accept that they provide sufficient detail about “locations, procedures and access points for vehicles carrying prisoners between secure zones and facilities” to reasonably be expected to give rise to the contemplated harm. In my view, the Ministry has not provided me with the requisite “detailed and convincing evidence” to establish that the disclosure of the information that remains at issue could reasonably be expected to endanger the security of a building or the security of a vehicle carrying items, or of a system of procedure established for the protection of items, for which protection is reasonably required.
Accordingly, I find that section 14(i) does not apply to the information that remains at issue in Records 1 and 2.
Section 14(1)(j)
The Ministry submits that the disclosure of Records 1 and 2 in their entirety could reasonably be expected to facilitate the escape from custody of a person under lawful detention.
The appropriate meaning ascribed to the word “facilitate”, as it is used in section 14(1)(j) is “to make easier or less difficult” [Order P-187].
As I have already found that the floor plans of the existing courthouses that describe secure areas are exempt under section 14(1)(e), it is not necessary for me to determine whether the exemption at section 14(1)(j) applies to those portions of the records. However, in my view, the remainder of the information contained in Record 1 and all of the information in Record 2 does not qualify for exemption under section 14(1)(j). As noted above, the majority of that information is factual in nature and although portions of Record 1 and Record 2 contain abstract plans or diagrams outlining the suggested spatial relationships between different elements of the various components of the proposed courthouse and a number of different proposed layouts for the plan of the proposed consolidated courthouse, in my view, this information is not specific enough in nature to reasonably be expected to facilitate the escape from custody of a person under lawful detention. Moreover, I find that the Ministry has not provided the type of “detailed and convincing evidence” required to establish the necessary link between the harm contemplated in this section with the disclosure of the remainder of the information at issue.
Accordingly, I find that section 14(1)(j) does not apply to the information that remains at issue in Records 1 and 2.
Section 14(1)(k)
The exemption at section 14(1)(k) is closely related to section 14(1)(j). Section 14(1)(k) exempts records that could, if disclosed, “jeopardize the security of a centre for lawful detention.” For the reasons that I have outlined above, I find that the Ministry has failed to provide the requisite “detailed and convincing evidence” to demonstrate that disclosure of the information that remains at issue could reasonably be expected to jeopardize the security of a centre for lawful detention.
Accordingly, I find that section 14(1)(k) does not apply to the information that remains at issue in Records 1 and 2.
Section 14(1)(l)
The exemption at section 14(1)(l) applies where disclosure could reasonably be expected to “facilitate the commission of an unlawful act or hamper the control of crime.” This provision is also closely related to section 14(1)(j). For the reasons that I have outlined above, I find that the Ministry has failed to provide the requisite “detailed and convincing evidence” to demonstrate that disclosure of the information that remains at issue could reasonably be expected to facilitate the commission of an unlawful act or hamper the control of crime.
Accordingly, I find that section 14(1)(l) does not apply to the information that remains at issue in Records 1 and 2.
Summary conclusion
In sum, I find that section 14(1)(e) applies to all of the floor plans of existing courthouses found in Record 1 from disclosure. I also find that none of the exemptions at section 14(1)(e), (i), (j), (k), or (l) apply to the information that remains at issue in Records 1 and 2. Accordingly, I will continue my analysis to determine whether any of the other exemptions claimed apply to that remaining information.
ECONOMIC AND OTHER INTERESTS
The Ministry has applied the discretionary exemptions at sections 18(1)(a), (c), (d), (e), (f) and (g) to Records 1, 2, and 3. The relevant portions of section 18(1) state:
A head may refuse to disclose a record that contains,
(a) trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Ontario or an institution and has monetary value or potential monetary value;
(c) information where the disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution;
(d) information where the disclosure could reasonably be expected to be injurious to the financial interests of the Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario;
(e) positions, 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 or the Government of Ontario;
(f) plans relating to the management of personnel or the administration of an institution that have not yet been put into operation or made public;
(g) information including the proposed plans, policies or projects of an institution where 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 purpose of section 18 is to protect certain economic interests of institutions. The Williams Commission Report explains the rationale for including a “valuable government information” exemption in the Act:
In our view, the commercially valuable information of institutions such as this should be exempt from the general rule of public access to the same extent that similar information of non-governmental organizations is protected under the statute . . . Government sponsored research is sometimes undertaken with the intention of developing expertise or scientific innovations which can be exploited.
For sections 18(1) (c) or (d) to apply, the institution must demonstrate that disclosure of the record “could reasonably be expected to” lead to the specified result. To meet this test, the institution must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm”. Evidence amounting to speculation of possible harm is not sufficient [Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner)].
Section 18(1)(a): monetary value
In order for Records 1, 2, or 3 to qualify for exemption under section 18(1)(a) of the Act, the Ministry must show that the information:
1. is a trade secret, or financial, commercial, scientific or technical information, and
2. belongs to the Government of Ontario or an institution, and
3. has monetary value or potential monetary value [Orders 87, P-851].
Part 1: Type of information
The types of information listed in section 18(1)(a) have been discussed in prior orders. Those that might be relevant in the circumstances of this appeal have been defined as follows:
Financial information refers to information relating to money and its use or distribution and must contain or refer to specific data. Examples of this type of information include cost accounting methods, pricing practices, profit and loss data, overhead and operating costs [Order PO-2010].
Commercial information is information that relates solely to the buying, selling or exchange of merchandise or services. This term can apply to both profit-making enterprises and non-profit organizations, and has equal application to both large and small enterprises [Order PO-2010]. The fact that a record might have monetary value or potential monetary value does not necessarily mean that the record itself contains commercial information [Order P-1621].
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 Ministry submits that Records 1, 2 and 3, contain costs and budget estimates for “multiple options in regards to configuration, layout and programs and services for the government to consider and choose from the proposed consolidated Courthouse.” The Ministry further submits that the information in these records is confidential technical information “in respect of the exact requirements and goals of the government and how those requirements and goals are met by the different configuration and location options.”
Based on my review of all three of the records, which are components of a planning study prepared for the Ministry by an architectural firm, I find that they clearly contain technical information prepared by a professional in the field of architecture and describe the construction and operation of a proposed consolidated courthouse in the Kitchener-Waterloo Region. As Record 1 contains several estimates for the construction of the proposed project I also find that that record contains information which qualifies as both “financial and commercial information” as those terms have been defined in relation to section 18(1)(a).
Accordingly, I find that part 1 of the section 18(1)(a) test has been met.
Part 2: belongs to
With respect to the second element, previous orders of this office have found that the term “belongs to” refers to “ownership” by an institution. It is more than the right simply to possess, use or dispose of information, or control access to the physical record in which the information is contained. For information to “belong to” an institution, the institution must have some proprietary interest in it either in a traditional intellectual property sense - such as copyright, trade mark, patent or industrial design - or in the sense that the law would recognize a substantial interest in protecting the information from misappropriation by another party. Examples of the latter type of information may include trade secrets, business-to-business mailing lists [Order P-636], customer or supplier lists, price lists, or other types of confidential business information [PO-1763, PO1783, PO-2226, PO-2433].
In each of these examples, there is an inherent monetary value in the information to the organization resulting from the expenditure of money or the application of skill and effort to develop the information. If, in addition, the information is consistently treated in a confidential manner, and it derives its value to the organization from not being generally known, the courts will recognize a valid interest in protecting the confidential business information from misappropriation by others [Order PO-1805 and Order PO-1763, upheld on judicial review in Ontario Lottery and Gaming Corporation v. Ontario (Information and Privacy Commissioner), [2001] O.J. No. 2552 (Div. Ct.)].
The Ministry submits that the planning studies that are Records 1, 2, and 3 were commissioned and paid for by the Government of Ontario. As a result, I accept that the information contained in the records at issue “belongs to” the Ministry and I find that part 2 of the section 18(1)(a) test has been met.
Part 3: monetary value
To have “monetary value”, the information itself must have an intrinsic value. The purpose of this section is to permit an institution to refuse to disclose a record where disclosure would deprive the institution of the monetary value of the information [Order M-654]. The fact that there has been a cost to the institution to create the record [PO-2166, P-1281] does not mean that it has monetary value for the purposes of this section. Additionally, the fact that the information has been kept confidential does not, on its own, establish this exemption [PO-2724].
In its representations, the Ministry does not specifically address whether the records at issue have “monetary or potential monetary value”, but does submit that the disclosure of the records, “especially in light of the cost and budget estimates detailed therein, could reasonably be expected to result in the tainting of contract tenders prepared for the possible construction of the consolidated Courthouse.” The Ministry further submits that this could negatively affect the government’s ability to negotiate contracts for its construction and affect the cost-efficiency of the entire project.
The Ministry has not identified whether these records have intrinsic value within the marketplace, nor whether the information in the records has any current or potential commercial value which may be exploited. Based upon its representations, the Ministry’s main concern does not appear to be that the information in the records at issue has monetary or potential monetary value, as required by section 18(1)(a). Rather, the Ministry’s main concern seems to be that the disclosure of the information may negatively affected the government’s ability to negotiate contracts for the construction of the proposed courthouse. In my view, this argument is better applied to the possible application of the exemptions at section 18(1)(c) and (d), and I will consider it in my analysis of those sections.
I find that the Ministry’s representations do not support a conclusion that the information itself has intrinsic monetary or potential money value as required by section 18(1)(a). In order to qualify for exemption under section 18(1)(a), all three parts of the test set out above must be established. As the Ministry has failed to establish that the third part of the test applies, the exemption in section 18(1)(a) does not apply to the records.
Section 18(1)(c): economic interests or competitive position
The purpose of section 18(1)(c) is to protect the ability of institutions to earn money in the marketplace. This exemption recognizes that institutions sometimes have economic interests and compete for business with other public or private sector entities, and it provides discretion to refuse disclosure of information on the basis of a reasonable expectation of prejudice to these economic interests or competitive positions [Order P-1190].
This exemption is arguably broader than section 18(1)(a) in that it does not require the institution to establish that the information in the record belongs to the institution, that it falls within any particular category or type of information, or that it has intrinsic monetary value. The exemption requires only that disclosure of the information could reasonably be expected to prejudice the institution’s economic interests or competitive position [Order PO-2014-I].
As noted previously, in order to establish a reasonable expectation of the harm section 18(1)(c) seeks to avoid, the Ministry must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm”. Evidence amounting to speculation of possible harm is not sufficient.
The Ministry submits that disclosure of all of the information in Records 1, 2, and 3 would result in prejudice to its economic interests within the meaning of section 18(1)(c) and states:
Records 1, 2, and 3 are detailed planning studies paid for by the government of Ontario and which both inform and advise the Attorney General on the possible costs and location of a consolidated Courthouse in the Kitchener (Waterloo) region. These costs and budget estimates include multiple options in regards to configuration, layout, and programs and services for the government to consider and choose from for the proposed consolidated Courthouse. These options include substantial technical and confidential information in respect of the exact requirements and goals of the government and how those goals and requirements are met by the different configuration and locations options. The disclosure of these records, especially in light of the cost and budget estimates detailed therein, could reasonably be expected to result in the tainting of contract tenders prepared for the possible construction of the consolidated Courthouse. This could negatively affect the government’s ability to negotiate contracts for the construction of the courthouse, and affect the cost-efficiency of the entire project, thereby prejudicing the economic interest and competitive position of the province.
The Ministry also submits that Record 3 in particular contains detailed discussions and recommendations about the proposed location of the consolidated courthouse which consider the current property values and rental market prices in and around the proposed locations, as well as the projected economic impact of the project on those areas. It submits that if this information was disclosed prematurely, property values for those sites could be inflated, which would increase the cost of the project and jeopardize its feasibility due to the resulting financial loss and prejudice to the government’s economic interests.
The appellant makes the following submissions that relate to the Ministry’s representations on its section 18(1)(c) claim:
Based on discussions during mediation and the Ministry’s submission to the adjudicator, I understand the documents relating to potential locations for a new courthouse are primarily contained in the Record 3 under the “Real Estate Analysis.”
Information on existing Crown land holdings and surplus property in the Region is not secret. Nor is information on the available undeveloped land, or surplus properties in Waterloo Region.
An inventory or analysis of available real estate should not be seen as a particularly sensitive document as it should be generally understood by the public what kind of potential real estate is available (either crown or municipal) and what isn’t.
The Ministry submits that revealing a list of potential, available locations for a courthouse (presumably some locations could later be ruled out as the configuration, programs and other considerations are worked out) could lead to land speculation around all the various locations for the courthouse.
In absence of any indication of which one of the several proposed locations the Ministry plans to pursue if and when the courthouse is built, it would be difficult to expect land speculation or price fixing around all of the proposed locations.
That would be risky business for land owners to begin to increase their real estate prices as the Ministry will presumably eventually rule out most of those locations when it chooses a final location. Such a document could reasonably be exempt under section 13, but not the real estate analysis that precedes it.
The appellant also submits that from the Ministry’s descriptions of the records, it does not appear that they contain a “detailed bargaining strategy for negotiations with contractors.” She submits that:
Presumably, when the Ministry has made a final decision on the location, size, configuration, and budget of the courthouse, it will put out a public tender for its construction and will take the most appropriate bidder. I submit that releasing a planning document containing various options for the courthouse does not jeopardize any future negotiations with contractors if and when the Ministry makes a final decision on the courthouse.
I have carefully considered the representations of the parties along with Records 1, 2 and 3 and find that while some of the information in Record 1 qualifies for exemption under section 18(1)(c) of the Act, the remainder of the information in Record 1, and all of the information that remains at issue in Records 2 and 3 do not.
Specifically, I accept that disclosure of the details about cost and budget estimates for the consolidated courthouse could reasonably be expected to result in the Ministry being hampered in its ability to negotiate the best possible deal for the province in its negotiations for the construction and operation of that facility. I also accept that this would ultimately affect the cost efficiency of the project. Record 1 contains two estimates for the construction of the proposed consolidated courthouse: a “Class D” estimate and a “Class C” estimate. The Class C estimate actually provides three separate estimates based on three possible options for the layout of the courthouse previously detailed in the records. The specific information that I find could reasonably be expected to impact the Ministry’s negotiations with contractors are, as follows:
• the dollar figures reflecting the estimated project costs for both the Class D and Class C estimates outlined in the executive summary of Record 1, the Facility Planning and Business Case, on pages 12 and 13;
• the dollar figures listed in the cover letters to the estimates prepared for the Ministry by a consultant company. The cover letter to the Class D estimate is found at page 237 and the cover letter to the Class C estimate is found at page 250; and
• the Master Plan Estimates, in their entirety, for both the Class D and C estimates. The Class D Master Plan Estimate is found on pages 245 through 248 and the Class D Master Plan Estimates for all three options are found on pages 259 through 301.
Having reviewed this information, I am satisfied that the Ministry has provided the requisite “detailed and convincing evidence” to establish that its economic interests and competitive position could reasonably be expected to be prejudiced, if this information were to be disclosed.
However, I find that the remainder of the information in Record 1 and all of the information in Records 2 and 3, which does not contain cost and budget information, does not qualify for exemption under section 18(1)(c). Based on my review of those portions of the records and the submissions of the parties, I do not accept that the Ministry has established that disclosure of that information could reasonably be expected to result in the “tainting of contract tenders.” Nor do I agree that disclosure could reasonably be expected to “negatively affect the government’s ability to negotiate contracts for the construction of the courthouse, and affect the cost efficiency of the entire project.” I also find that the Ministry has not established that the disclosure of the information related to the numerous options for the possible location of the courthouse in Record 3 could reasonably be expected result in the inflation of the property values for those sites. In my view, the Ministry’s representations do not provide sufficient evidence to demonstrate specifically how any negotiations it may enter with respect to the construction and operation of the consolidated courthouse could reasonably be expected to be adversely affected by the disclosure of the particular information that remains at issue and give rise to the harms it alleges.