Access to Information Orders
Decision Information
• Third party appeal regarding water management plan for a generating station.
• Section 2(1) (definition of personal information) - record does not contain personal information.
• Section 17(1) (third party information) - not upheld.
• Record ordered disclosed to requester.
Decision Content
NATURE OF THE APPEAL:
The Ministry of Natural Resources (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for access to a copy of a water management plan for a specific generating station.
The Ministry located the responsive record and following third party notification, it decided to grant partial access with severances pursuant to the mandatory exemption in section 21(1) (personal privacy) of the Act.
The third parties, now the appellants, appealed the Ministry’s decision. The original requester did not appeal the Ministry’s decision to withhold a paragraph on page 12 of the record and part of a paragraph 5.1 on page 16 of the record that was withheld under the personal privacy exemption in section 21(1). Therefore, this information is not at issue in this appeal.
During the course of mediation, the appellants advised the mediator that they are appealing the Ministry’s decision to disclose the record at issue in this appeal and that the record should be withheld in its entirety pursuant to sections 17(1) (third party information) and 21(1) of the Act.
As mediation did not resolve the issues in this appeal, the file was transferred to the adjudication stage of the inquiry process where an adjudicator conducts an inquiry. I sent a Notice of Inquiry to the appellants initially seeking their representations. The appellants did not provide representations. When contacted by this office they specified that they were relying on the letter that they sent to the Ministry on July 19, 2010 as their representations. They asked that the information in this letter not be shared with the requester.
RECORDS:
The record at issue in this appeal is a water management plan for a named generating station.
DISCUSSION:
PERSONAL INFORMATION
I will now consider whether the record contains personal information, other than the two portions of the record identified above as not being at issue in this appeal. Personal information is defined in section 2(1) as follows:
“personal information” means recorded information about an identifiable individual, including,
(a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,
(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
(c) any identifying number, symbol or other particular assigned to the individual,
(d) the address, telephone number, fingerprints or blood type of the individual,
(e) the personal opinions or views of the individual except if they relate to another individual,
(f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,
(g) the views or opinions of another individual about the individual, and
(h) the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual;
The list of examples of personal information under section 2(1) is not exhaustive. Therefore, information that does not fall under paragraphs (a) to (h) may still qualify as personal information [Order 11].
Sections 2(2), (3) and (4) also relate to the definition of personal information. These sections state:
(2) Personal information does not include information about an individual who has been dead for more than thirty years.
(3) Personal information does not include the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity.
(4) For greater certainty, subsection (3) applies even if an individual carries out business, professional or official responsibilities from their dwelling and the contact information for the individual relates to that dwelling.
To qualify as personal information, the information must be about the individual in a personal capacity. As a general rule, information associated with an individual in a professional, official or business capacity will not be considered to be “about” the individual [Orders P-257, P-427, P-1412, P-1621, R-980015, MO-1550-F and PO-2225].
Even if information relates to an individual in a professional, official or business capacity, it may still qualify as personal information if the information reveals something of a personal nature about the individual [Orders P-1409, R-980015, PO-2225 and MO-2344].
To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed [Order PO-1880, upheld on judicial review in Ontario (Attorney General) v. Pascoe, [2002] O.J. No. 4300 (C.A.)].
Analysis/Findings
After taking into account the letter of the appellants and reviewing the record, I find that the record, other than the two portions that are not at issue, does not contain the personal information of identifiable individuals for the purpose of section 2(1) of the Act. Instead, I find that section 2(3) of the Act applies, as the record contains the names and titles of the appellants, identifying them in a business capacity only. This information does not reveal something of a personal nature about them [Orders P-1409, R-980015, PO-2225 and MO-2344].
Accordingly, I find that the information remaining at issue in the record is not personal information. As a result, it is unnecessary for me to consider whether the mandatory personal privacy exemption in section 21(1) applies.
THIRD PARTY INFORMATION
I will now consider whether the mandatory exemption at section 17(1) applies to the record.
Section 17(1): the exemption
Section 17(1) states:
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
(d) reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute.
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.), leave to appeal dismissed, Doc. M32858 (C.A.)]. 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 and MO-1706].
For section 17(1) to apply, the institution and/or the third 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 17(1) will occur.
Part 1: type of information
The types of information listed in section 17(1) have been discussed in prior orders. Based upon my review of the record, I find that it contains technical information.
Trade secret means information including but not limited to a formula, pattern, compilation, programme, method, technique, or process or information contained or embodied in a product, device or mechanism which
(i) is, or may be used in a trade or business,
(ii) is not generally known in that trade or business,
(iii) has economic value from not being generally known, and
(iv) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy [Order PO-2010].
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].
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 [P-1621].
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].
Labour relations information has been found to include:
• discussions regarding an agency’s approach to dealing with the management of their employees during a labour dispute [P-1540]
• information compiled in the course of the negotiation of pay equity plans between a hospital and the bargaining agents representing its employees [P-653],
but not to include:
• names, duties and qualifications of individual employees [MO-2164]
• an analysis of the performance of two employees on a project [MO-1215]
• an account of an alleged incident at a child care centre [P-121]
• the names and addresses of employers who were the subject of levies or fines under workers’ compensation legislation [P-373, upheld in Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)]
Analysis/Findings re part 1: type of information
Based upon my review of the record and the appellants’ letter, I find that the record contains technical information. The record contains information prepared by a professional in the field of water management and describes the operation and maintenance of a specific generating station [Order PO-2010]. Therefore, part 1 of the test has been met.
Part 2: supplied in confidence
Supplied
The requirement that it be shown that the information was “supplied” to the institution reflects the purpose in section 17(1) of protecting the informational assets of third parties [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].
The contents of a contract involving an institution and a third party will not normally qualify as having been “supplied” for the purpose of section 17(1). The provisions of a contract, in general, have been treated as mutually generated, rather than “supplied” by the third party, even where the contract is preceded by little or no negotiation or where the final agreement reflects information that originated from a single party. This approach was approved by the Divisional Court in Boeing Co. v. Ontario (Ministry of Economic Development and Trade), cited above. [See also Orders PO-2018, MO-1706, PO-2496, upheld in Grant Forest Products Inc. v. Caddigan, [2008] O.J. No. 2243 and PO-2497, upheld in Canadian Medical Protective Association v. John Doe, [2008] O.J. No. 3475 (Div. Ct.)].
There are two exceptions to this general rule which are described as the “inferred disclosure” and “immutability” exceptions. The “inferred disclosure” exception applies where disclosure of the information in a contract would permit accurate inferences to be made with respect to underlying non-negotiated confidential information supplied by the affected party to the institution. The “immutability” exception applies to information that is immutable or is not susceptible of change, such as the operating philosophy of a business, or a sample of its products [Orders MO-1706, PO-2384, PO-2435, PO-2497 upheld in Canadian Medical Protective Association v. John Doe (cited above)].
In confidence
In order to satisfy the “in confidence” component of part two, the parties resisting disclosure must establish that the supplier had a reasonable expectation of confidentiality, implicit or explicit, at the time the information was provided. This expectation must have an objective basis [Order PO-2020].
In determining whether an expectation of confidentiality is based on reasonable and objective grounds, it is necessary to consider all the circumstances of the case, including 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 prior to being communicated to the government organization
• not otherwise disclosed or available from sources to which the public has access
• prepared for a purpose that would not entail disclosure [Orders PO-2043, PO-2371, PO-2497].
Analysis/Findings re part 2: supplied in confidence
Based upon my review of the record and the appellants’ letter, I find that the appellants did not supply the information in the record in confidence to the Ministry. The information in the record was prepared by the Ministry and the record was signed by Ministry officials. Further, the record mentions that any information resulting from the terms of the record may be subject to disclosure under the Act. Accordingly, I find that part 2 of the test has not been met. For the sake of completeness, I will consider whether part 3 of the test has been met.
Part 3: harms
General principles
To meet this part of the test, the institution and/or the third party 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) (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].
The need for public accountability in the expenditure of public funds is an important reason behind the need for “detailed and convincing” evidence to support the harms outlined in section 17(1) [Order PO-2435].
Parties should not assume that harms under section 17(1) are self-evident or can be substantiated by submissions that repeat the words of the Act [Order PO-2435].
Analysis/Findings re part 3: harms
Based upon my review of the record and the appellants’ letter, I find that the appellants have not provided “detailed and convincing” evidence to establish a “reasonable expectation of harm” as outlined in section 17(1).
Taking into account all of the concerns about disclosure expressed by the appellants in their letter, I find that disclosure could not reasonably be expected to cause harm to the appellants as set out in section 17(1). In particular, the appellants are concerned about certain financial and ingress information being disclosed by disclosure of the record; however, the record does not contain such information. Therefore, I find that part 3 of the test has not been met.
In conclusion, as both parts 2 and 3 of the test under section 17(1) have not been met, this record is not subject to the mandatory exemption in section 17(1). I will order this record disclosed, except for the severances made by the Ministry on pages 12 and 16.
ORDER:
1. I order the record disclosed to the requester by June 6, 2011 but not before June 1, 2011, except for the severances made by the Ministry on pages 12 and 16.
2. In order to verify compliance with this order, I reserve the right to require the Ministry to provide me with a copy of the record disclosed to the appellant pursuant to provision 1.
Original Signed by: April 29, 2011