ORDER PO-3793

Appeal PA15-1

Ministry of Tourism, Culture and Sport

December 11, 2017

Summary: The appellant submitted a request to the Ministry of Tourism, Culture and Sport (the ministry) under the Freedom of Information and Protection of Privacy Act  (the Act ) for access to a number of documents relating to a festival that received funding from the 2014 Tourism Event Marketing Program administered by the Ontario Tourism Marketing Partnership Corporation.

The ministry issued a decision granting the appellant partial access to the responsive records. The ministry relied on the mandatory exemptions in sections 17(1) (third party information) and 21(1) (personal privacy).

In this order, the adjudicator upholds the ministry’s decision under section 21(1) concerning the educational and employment history in the records. She finds that the names and titles at issue in the records are subject to the exception in section 2(3) and orders this information disclosed.

The adjudicator does not uphold the ministry’s decision under section 17(1) and orders disclosure of the dollar value of the cash support and/or in-kind contributions of the sponsors of the festival.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 , as amended, sections 2(1) (definition of personal information), 2(3), 21(1), 21(3)(d), 17(1)(b).

OVERVIEW:

[1]  The appellant submitted a request to the Ministry of Tourism, Culture and Sport (the ministry) under the Freedom of Information and Protection of Privacy Act  (FIPPA  or the Act ) for access to a number of documents relating to a festival that received $83,223.00 in funding from the 2014 Tourism Event Marketing Program (the Program) administered by the Ontario Tourism Marketing Partnership Corporation (the OTMPC). [1]

[2]  In her request, the appellant specified that the documents to which she sought access had to be submitted as a condition of funding by the Festival’s Management Committee (the Committee).

[3]  The ministry located numerous records responsive to the appellant’s request and issued a fee estimate and interim access decision to the appellant. In accordance with section 28  of the Act , the ministry notified an individual whose interests could be affected by disclosure of the records to seek this individual’s position on disclosure.

[4]  The ministry subsequently issued a decision granting the appellant partial access to the records. The ministry relied on the mandatory exemptions in sections 17(1) (third party information) and 21(1) (personal privacy), and the discretionary exemption in section 22(a) (information published or available to the public) to withhold parts of the records. It also withheld some information from the records on the basis that it was not responsive to the appellant’s request.

[5]  The appellant appealed the ministry’s decision to the Office of the Information and Privacy Commissioner (the IPC). During mediation of the appeal, the appellant confirmed that she was not pursuing access to certain names, phone numbers, and mailing and email addresses of individuals contained in the withheld information. Accordingly, that information is no longer at issue in this appeal. The appellant also asserted that there is a public interest in disclosure of the withheld information and, as a result, the possible application of the public interest override in section 23  of the Act  was added as an issue in the appeal.

[6]  Following further discussions, the ministry issued another decision to the appellant disclosing a record that was previously withheld pursuant to section 22 (a) of the Act . Therefore, this exemption is no longer at issue.

[7]  Also during mediation, three individuals, who held executive positions on the Committee, were notified of the appeal and their consent to disclosure of their information contained in the records was sought. One of these individuals consented to disclosure of some information, which the ministry disclosed to the appellant.

[8]  As a mediated resolution of the appeal was not possible, it was moved to the adjudication stage of the appeal process for a written inquiry under the Act .

[9]  The adjudicator previously assigned to this appeal, began the inquiry by inviting the representations of the ministry and the individuals who did not consent to disclosure of their information on the issues set out below. These individuals did not provide representations.

[10]  The OTMPC provided representations in response to the Notice of Inquiry sent to the ministry. In its representations, it advised that the ministry would disclose the following information in the records that it had originally withheld under section 17(1)  of the Act :

• Record 1 (2013 Grant Application Package) – portions of pages 4, 7, 8, 9 and 20
• Record 12 (Signed Note) – part of page 2
• Record 14 (Undated Grant Application Package) – portions of pages 1, 17 and 18
• Record 22 (2014 Tourism Marketing Plan)– portions of pages 10-15 and 17

[11]  It also advised that that the ministry would disclose the following information, which it had previously determined was non-responsive to the request:

• Record 10 (Information Note) – pages 5 and 6, and part of page 7
• Record 12 (Signed Note) – pages 4 and 5
• Record 13 (Undated Signed Information Note) – part of page 1
• Record 23 (Emails with MTSC Event Note) – part of Page 5

[12]  As the ministry has decided to disclose this information, it is no longer at issue in this appeal.

[13]  The adjudicator previously assigned to this file then invited the representations of the appellant and the Committee on the issues in this appeal. To assist these parties, she provided them with a copy of the OTMPC’s complete representations. Neither party provided representations in response.

[14]  The file was then assigned to me to conclude the inquiry.

[15]  I then sent a Notice of Inquiry seeking representations on the application of section 17(1) to five organizations that provided sponsorship funding for the Carnival. Three of these organizations provided their consent to disclosure of their information. The other two did not respond to the Notice of Inquiry.

[16]  In this order, I uphold the ministry’s decision to withhold access under section 21(1) to the employment and educational history of the affected persons. I order disclosure of the names and titles of individuals in the records, finding that it is not personal information pursuant to section 2(3). I also order the remaining information disclosed as I find it not exempt under section 17(1).

RECORDS:

[17]  The ministry claims that section 17(1) applies to:

• Record 1, page 21: The cash support and/or in-kind contributions in the chart of the five sponsors: [names].
• Record 10, page 2: The same financial contribution information of these five sponsors.
• Record 12, page 1: The same financial contribution information of the five sponsors. (similar record to Record 10)

[18]  I note however, that in Record 10, the cash support and/or in-kind contributions of the sponsors is on page 1, not page 2. It is the same information as that on page 1 of Record 12. One amount has also been withheld from page 2 of Record 10. [2]

[19]  Three of the five sponsors have consented to the disclosure of their information in the records. Therefore, the withheld information at issue is for the remaining two sponsors and is found at:

• Record 1 (2013 Grant Application Package) – part of page 21
• Record 10 (Information Note) – part of page 1
• Record 12 (Signed Note) – part of page 1

[20]  The withheld information under section 21(1) is found at:

• Record 14 (Undated Grant Application Package) – part of page 6

ISSUES:

1. Does Record 14 (page 6) contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?
2. Does the mandatory personal privacy exemption at section 21(1) apply to the information withheld in page 6 of Record 14?
3. Does the mandatory exemption at section 17(1) apply to withheld information in Records 1 (page 21), 10 (page 1) and 12 (page 1)?

DISCUSSION:

Background of the Ontario Tourism Event Marketing Partnership Program and the Role of the OTMPC

[21]  The OTMPC, on behalf of the ministry, provided this background information about the records at issue:

…As part of Ontario Tourism's marketing strategy, the ministry's objective is to assist in the marketing of a selection of tourism events and festivals across the province. The OTMPC's role in the strategy is to participate in marketing these events in order to strengthen Ontario's tourism brand image, help showcase the province to Ontarians and to the world, and to encourage increased attendance at these events in order to boost local and regional economies.

…The Program is a transfer payment program and was administered by the OTMPC in 2013-2014. …One of the key priorities of the Program was to select and provide funding support to events and festivals that had significant public/private sector participation and support. Program funding was designed to be an enhancement to a festival's/event's existing marketing activities.

The funding available under the Program was limited and applicants needed to compete for the available funding through an application process. The demand for funds by the applicant community exceeded the available Program budget.

The OTMPC's administration of the Program included reviewing and evaluating all applications against established criteria. As part of the application to the Program, applicants were required to provide the OTMPC with an itemized list of confirmed cash and in-kind sponsors and cash and in-kind support for their events. To document contributions, applicants were required to provide the OTMPC with a commitment letter from each sponsor identifying the specific dollar amount of the contribution…

A.  Does Record 14 (page 6) contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?

[22]  In order to determine which sections of the Act  may apply, it is necessary to decide whether the record contains “personal information” and, if so, to whom it relates. That term 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;

[23]  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. [3]

[24]  Sections 2(3) and (4) also relate to the definition of personal information. These sections state:

(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.

[25]  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. [4]

[26]  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. [5]

[27]  To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. [6]

[28]  The OTMPC provided representations on behalf of the ministry. It states that Record 14, page 6, is part of the Committee's grant application form to the Program and that page required applicants to describe their organization's history of managing similar projects and to include past achievements. It states that the Committee listed the identities and a biographical description of their key management team.

[29]  The OTMPC submits that it recognizes that the names of the key management team at issue and their corresponding titles do not constitute personal information as this information constitutes these individuals' business/professional information in accordance with the exception to the meaning of personal information in section 2(3). However, it states that these individuals’ biographical information consists of their educational and employment history information, which falls within the meaning of personal information under clause (b) of section 2(1).

Analysis/Findings

[30]  Based on my review of the information at issue, I agree with the OTMPC that the names and titles of the individuals on page 6 of Record 14 is not personal information as it comes within section 2(3), set out above. As it is not personal information, the mandatory personal privacy exemption in section 21(1) cannot apply to this information and I will order the names and titles disclosed.

[31]  The remaining information at issue is the personal information of the individuals listed in the records, as it is their employment and educational history within the meaning of paragraph (b) of the definition of personal information in section 2(1)  of the Act . I will consider whether section 21(1) applies to this information. [7]

B.  Does the mandatory personal privacy exemption at section 21(1) apply to the information withheld in page 6 of Record 14?

[32]  Where a requester seeks personal information of another individual, section 21(1) prohibits an institution from releasing this information unless one of the exceptions in paragraphs (a) to (f) of section 21(1) applies.

[33]  The section 21(1)(a) to (e) exceptions are relatively straightforward. The section 21(1)(f) exception, allowing disclosure if it would not be an unjustified invasion of personal privacy, is more complex, and requires a consideration of additional parts of section 21.

[34]  If the information fits within any of paragraphs (a) to (e) of section 21(1), or paragraphs (a) to (d) of section 21(4), it is not exempt from disclosure under section 21. The information at issue does not fit within these paragraphs.

[35]  Under section 21(1)(f), if disclosure would not be an unjustified invasion of personal privacy, it is not exempt from disclosure.

[36]  Sections 21(2) and (3) help in determining whether disclosure would or would not be an unjustified invasion of privacy. Also, section 21(4) lists situations that would not be an unjustified invasion of personal privacy.

[37]  The OTMPC submits that presumption of an unjustified invasion of personal privacy applies to the biographical information by reason of section 21(3)(d) because the information relates to these individuals' employment and educational histories.

Analysis/Findings

[38]  If any of paragraphs (a) to (h) of section 21(3) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy under section 21. Once established, a presumed unjustified invasion of personal privacy under section 21(3) can only be overcome if section 21(4) or the “public interest override” at section 23 applies. [8]

[39]  The OTMPC relies on section 21(3)(d), which reads:

A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,

relates to employment or educational history;

[40]  As noted above, names and professional titles do not constitute “employment history”. [9]

[41]  Information contained in resumes [10] and work histories [11] falls within the scope of section 21(3)(d).

[42]  I find that the employment and educational history at issue in the records is subject to the presumption in section 21(3)(d).

[43]  Once a presumed unjustified invasion of personal privacy is established under section 21(3), it cannot be rebutted by one or more factors or circumstances under section 21(2). [12]

[44]  Therefore, the employment and educational history at issue on page 6 of Record 14 is exempt under the mandatory personal privacy exemption in section 21(1).

[45]  In finding the information at issue in this appeal exempt under section 21(1) [13] , I have taken into consideration that during mediation of the appeal, the appellant asserted that there is a public interest in disclosure of the withheld information and, as a result, the possible application of the public interest override in section 23  of the Act  was added as an issue in the appeal. Section 23 states:

An exemption from disclosure of a record under sections 13, 15, 17, 18, 20, 21 and 21.1 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

[46]  The Act  is silent as to who bears the burden of proof in respect of section 23. This onus cannot be absolute in the case of an appellant who has not had the benefit of reviewing the requested records before making submissions in support of his or her contention that section 23 applies. To find otherwise would be to impose an onus which could seldom if ever be met by an appellant. Accordingly, the IPC will review the records with a view to determining whether there could be a compelling public interest in disclosure which clearly outweighs the purpose of the exemption. [14]

[47]  In the absence of representations from the appellant and based on my review of the information at issue in the records, I find that the public interest override in section 23 does not apply to the information withheld under section 21(1).

C.  Does the mandatory third party information exemption at section 17(1) apply to withheld information in Records 1 (page 21), 10 (page 1) and 12 (page 1)?

[48]  The OTMPC relies on sections 17(1)(a) and (b). These sections read:

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;

[49]  Section 17(1) is designed to protect the confidential “informational assets” of businesses or other organizations that provide information to government institutions. [15] 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. [16]

[50]  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

[51]  The OTMPC submits that the dollar value of the cash support and/or in-kind contributions of the sponsors constitute the financial information of the sponsors and of the Committee, as this information relates specifically to money and its use/distribution with respect to sponsoring the Caribbean Carnival (the Carnival).

Analysis/Findings re part 1

[52]  The OTMPC submits that the records contain financial information. This type of information listed in section 17(1) has been discussed in prior orders:

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. [17]

[53]  I agree with the OTMPC that the information at issue in Records 1, 10 and 12, which is the sponsorship dollar amounts for sponsors of the Carnival, reveals financial information as it is information relating to money and its use or distribution.

[54]  Therefore, I find that part 1 of the test under section 17(1) has been met.

Part 2: supplied in confidence

[55]  The OTMPC states that the sponsorship financial information was supplied directly to the OTMPC by the Committee as part of its application to the Program. It states:

Applicants to the Program securing private sector funding/sponsorship did on occasion request that the funding information remain confidential until such time that the funder/sponsor was ready to publicly disclose that information.

Although the Program material, including the application form, did not specifically address the subject of confidentiality of the applicant's information supplied to the OTMPC, the application form did expressly inform the applicant that any information provided to the OTMPC in connection with its application may be subject to disclosure in accordance with the requirements of FIPPA...

The application form goes on to state what information of the applicant will be made available to the public (see page 14 of Record 14): names and addresses of applicants that received grants under the Program; the amount of the grant awards; and the purpose for which the grants were awarded. It is further submitted that the meaning of this statement is that the OTMPC would not disclose the applicant's other types of information supplied to the OTMPC through the application process…

[The] sponsorship financial information can be found in two versions of the same "Recommendation Information Note" for the Caribbean Carnival project (see Records 10 and 12). These Notes (one a draft version and one a final version) were prepared by OTMPC Program staff with the input of Ministry staff in order to provide a recommendation to the Minister. Both versions of the Note are clearly marked "confidential/for internal use only" at the top of the first page. This is evidence that both the OTMPC and the Ministry treated the applicant's financial information in the Note in a confidential manner.

Supplied

[56]  The requirement that the information was “supplied” to the institution reflects the purpose in section 17(1) of protecting the informational assets of third parties. [18]

[57]  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. [19]

Analysis/Findings re: supplied

[58]  As stated by the OTMPC, Records 10 and 12 contain the same information at issue, one being in draft form. Both page 1 of Record 10 and page 1 of Record 12 are identical, except that page 1 of Record 12 is a draft, therefore, it has some changes noted thereon.

[59]  The undisclosed information on the three pages at issue in Records 1, 10 and 12 reveal the Carnival sponsors’ sponsorship amounts in cash and/or in-kind contributions.

[60]  I find that the contribution amounts at issue were supplied by the sponsors in support of their sponsorship of the Carnival. I will now determine whether this information was supplied in confidence.

In confidence

[61]  In order to satisfy the “in confidence” component of part two, the parties resisting disclosure must establish that the supplier of the information had a reasonable expectation of confidentiality, implicit or explicit, at the time the information was provided. This expectation must have an objective basis. [20]

[62]  In determining whether an expectation of confidentiality is based on reasonable and objective grounds, all the circumstances of the case are considered, 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 by the third party in a manner that indicates a concern for confidentiality
• not otherwise disclosed or available from sources to which the public has access
• prepared for a purpose that would not entail disclosure. [21]

[63]  Based on my review of the information at issue in the records and the OTMPC detailed representations, I find that the sponsorship amounts were supplied by the sponsors in confidence, as they were:

• communicated to the institution on the basis that it was confidential and that it was to be kept confidential,
• treated consistently by the sponsors in a manner that indicates a concern for confidentiality,
• not otherwise disclosed or available from sources to which the public has access, and
• prepared for a purpose that would not entail disclosure.

[64]  Therefore, part 2 of the test has been met under section 17(1).

Part 3: harms

[65]  The party resisting disclosure must provide detailed and convincing evidence about the potential for harm. It must demonstrate a risk of harm that is well beyond the merely possible or speculative although it need not prove that disclosure will in fact result in such harm. How much and what kind of evidence is needed will depend on the type of issue and seriousness of the consequences. ^[22]

[66]  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 the surrounding circumstances. However, parties should not assume that the harms under section 17(1) are self-evident or can be proven simply by repeating the description of harms in the Act . [23]

[67]  I did not receive representations on the application of section 17(1) from the third parties in this appeal, namely the Committee or the sponsors. The only response I received were consents to disclosure of information from three of the five sponsors. One of these sponsors also indicated that its sponsorship contributions are publicly available on its website.

[68]  The OTMPC provided representations in this appeal before I received the consents of three of the five sponsors.

[69]  Concerning sections 17(1)(a) and (c), the OTMPC states that the third parties are in a better position in this appeal to articulate the specific harms that would arise from the disclosure of their information.

[70]  As I did not receive representations from the third parties or the OTMPC on part 3 of the test for sections 17(1)(a) and (c), and based on my review of the information at issue, I find that I do not have sufficient evidence to determine that part 3 of the test has been met under these sections.

[71]  Concerning section 17(1)(b), the OTMPC states that even though it no longer administers the Program, it is still concerned that disclosure of the information at issue would have result in similar or the same information no longer being supplied to the ministry. It states that the Program still does exist as a component of the ministry's Celebrate Ontario Program and that harm would now be incurred by the ministry as the administrator of that Program.

[72]  The OTMPC states during the time the OTMPC administered the Program, it was necessary for the OTMPC to receive detailed proprietary information from applicants to the Program in order for the OTMPC to exercise due diligence in evaluating applications in a competitive grant program and to award public funds in a wise and appropriate manner in accordance with the Program's objectives and guidelines established by the government. It states that in order to encourage full disclosure of detailed information from applicants, applicants needed to be assured that the confidential information they supplied to the OTMPC would be protected.

[73]  After considering the representations of the OTMPC, I find that I also do not have sufficient evidence to determine that part 3 of the test has been met for section 17(1)(b).

[74]  At issue is the sponsorship amounts for the 2013 Carnival by two third party sponsors, neither of which provided representations opposing disclosure of this information. The sponsorship amounts are not detailed proprietary information. Instead, in the circumstances of this appeal, they are amounts contributed to sponsor a specific program at a specific time. In exchange for their sponsorship, the third parties receive branded advertising as sponsors of the Carnival.

[75]  Neither the sponsors nor the Committee have opposed disclosure of the information at issue. Therefore, based on all of the evidence, I find that disclosure of the sponsorship amounts at issue from the 2013 Carnival could not reasonably be expected to result in similar information no longer being supplied to the ministry under section 17(1)(b).

[76]  I find that part 3 of the test under section 17(1) has not been met. Therefore, the information at issue in Records 1, 10 and 12 is not exempt under that section and I will order it disclosed.

ORDER:

I order the ministry to disclose the information at issue in the records to the appellant, except for the employment and educational history at issue on page 6 of Record 14, by January 18, 2018 but not before January 12, 2018. For ease of reference, I have provided the ministry with a copy of this page highlighting the information in Record 14 not to be disclosed to the appellant.

Original Signed by:		December 11, 2017
Diane Smith
Adjudicator