Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The Ministry of Natural Resources (the Ministry) received a request underthe Freedom of Information and Protection of Privacy Act (the Act )for access to copies of all purchase orders issued on behalf of the LakeOntario, Lake Huron and Lake Erie Management Units, the Central Ontario Scienceand Technology Development Unit and the Science and Technology Transfer Unit forthe purchase of services in 1996. The request also included copies of all BidSummary Sheets for Weeding contracts at the St. William Provincial ForestStation issued in 1994, 1995 and 1996. After soliciting representations from several third parties pursuant tosection 28 of the Act , the Ministry decided to grant access in full toall responsive records, and notified the parties accordingly. A third partyappealed the Ministry's decision, claiming that a one-page Ministry "PurchaseOrder" dated August 15, 1996 qualified for exemption under section 17(1) ofthe Act . A Notice of Inquiry was sent to the Ministry, the original requester and thethird party appellant. Representations were received from the Ministry only. DISCUSSION: THIRD PARTY INFORMATION In this appeal, the Ministry decided that the record does not qualify forexemption under section 17(1) and should be disclosed to the original requester. Therefore, it is up to the appellant, as the only party resisting disclosure,to establish the following three requirements for exemption under section 17(1): 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 inconfidence, either implicitly or explicitly; and 3.the prospect of disclosure of the record must give rise to a reasonableexpectation that one of the harms specified in (a), (b) or (c) of subsection17(1) will occur. Requirement One Although the appellant has not provided representations, I find that therecord clearly contains information and pricing details relating to a repairservice provided by the appellant to the Ministry, and that this constitutescommercial and financial information for the purposes of the first requirementfor exemption under section 17(1). Requirement Two In order to satisfy the second requirement, the appellant must show that theinformation was supplied to the Ministry, either implicitly or explicitly in confidence . Supplied The Ministry states that the record was created by the Ministry, notsupplied by the appellant. In his letter of appeal, the appellant states thatthe cost of his service is contained on the purchase order, and that this pricereflects government discounts. While I agree that the actual record was not supplied to the Ministry, Ifind that the appellant supplied the information contained in it to theMinistry. In Confidence In order to determine that a record was supplied in confidence, eitherexplicitly or implicitly, the appellant must demonstrate that an expectation ofconfidentiality existed, and that it had a reasonable basis (Order M-169). Indetermining whether an expectation of confidentiality is based on reasonable andobjective grounds, it is necessary to consider all circumstances, includingwhether the information was: (1)Communicated to the institution on the basis that it was confidentialand that it was to be kept confidential. (2)Treated consistently in a manner that indicates a concern for itsprotection from disclosure by the affected person prior to being communicated tothe government organization. (3)Not otherwise disclosed or available from sources to which the publichas access. (4)Prepared for a purpose which would not entail disclosure. [Order P-561] The Ministry's position is that the record was not supplied in confidence. The Ministry states that the appellant failed to provide it with any evidencethat the information was supplied in confidence, or that the Ministry had ledthe appellant to believe that the information would be treated confidentially. The appellant has not provided representations in response to the Notice ofInquiry, nor has he addressed the issue of confidentiality in his letter ofappeal. In the circumstances of this appeal, I accept the Ministry's position. Inmy view, the appellant has not established a reasonable expectation that therecord was supplied to the Ministry either explicitly or implicitly inconfidence, and I find that the second requirement for exemption under section17(1) has not been established. Because all three requirements must be established for a record to qualifyfor exemption under section 17(1), I find that the record at issue in thisappeal does not qualify and should be disclosed to the original requester. ORDER: 1.I order the Ministry to disclose the record by sending the requester acopy no later than October 28, 1997 but not before October 23, 1997. 2.In order to verify compliance with this order, I reserve the right torequire the Ministry to provide me with a copy of the record which is disclosedto the requester pursuant to Provision 1. Original signed by: Tom Mitchinson, Assistant Commissioner September 24, 1997
Decision Content
ORDER P-1455
Appeal P_9700180
Ministry of Natural Resources
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 copies of all purchase orders issued on behalf of the Lake Ontario, Lake Huron and Lake Erie Management Units, the Central Ontario Science and Technology Development Unit and the Science and Technology Transfer Unit for the purchase of services in 1996. The request also included copies of all Bid Summary Sheets for Weeding contracts at the St. William Provincial Forest Station issued in 1994, 1995 and 1996.
After soliciting representations from several third parties pursuant to section 28 of the Act, the Ministry decided to grant access in full to all responsive records, and notified the parties accordingly. A third party appealed the Ministry’s decision, claiming that a one-page Ministry “Purchase Order” dated August 15, 1996 qualified for exemption under section 17(1) of the Act.
A Notice of Inquiry was sent to the Ministry, the original requester and the third party appellant. Representations were received from the Ministry only.
DISCUSSION:
THIRD PARTY INFORMATION
In this appeal, the Ministry decided that the record does not qualify for exemption under section 17(1) and should be disclosed to the original requester. Therefore, it is up to the appellant, as the only party resisting disclosure, to establish the following three requirements for exemption under section 17(1):
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 (a), (b) or (c) of subsection 17(1) will occur.
Requirement One
Although the appellant has not provided representations, I find that the record clearly contains information and pricing details relating to a repair service provided by the appellant to the Ministry, and that this constitutes commercial and financial information for the purposes of the first requirement for exemption under section 17(1).
Requirement Two
In order to satisfy the second requirement, the appellant must show that the information was supplied to the Ministry, either implicitly or explicitly in confidence.
Supplied
The Ministry states that the record was created by the Ministry, not supplied by the appellant. In his letter of appeal, the appellant states that the cost
of his service is contained on the purchase order, and that this price reflects government discounts.
While I agree that the actual record was not supplied to the Ministry, I find that the appellant supplied the information contained in it to the Ministry.
In Confidence
In order to determine that a record was supplied in confidence, either explicitly or implicitly, the appellant must demonstrate that an expectation of confidentiality existed, and that it had a reasonable basis (Order M-169). In determining whether an expectation of confidentiality is based on reasonable and objective grounds, it is necessary to consider all circumstances, including whether the information was:
(1) Communicated to the institution on the basis that it was confidential and that it was to be kept confidential.
(2) 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.
(3) Not otherwise disclosed or available from sources to which the public has access.
(4) Prepared for a purpose which would not entail disclosure.
[Order P-561]
The Ministry’s position is that the record was not supplied in confidence. The Ministry states that the appellant failed to provide it with any evidence that the information was supplied in confidence, or that the Ministry had led the appellant to believe that the information would be treated confidentially.
The appellant has not provided representations in response to the Notice of Inquiry, nor has he addressed the issue of confidentiality in his letter of appeal.
In the circumstances of this appeal, I accept the Ministry’s position. In my view, the appellant has not established a reasonable expectation that the record was supplied to the Ministry either explicitly or implicitly in confidence, and I find that the second requirement for exemption under section 17(1) has not been established.
Because all three requirements must be established for a record to qualify for exemption under section 17(1), I find that the record at issue in this appeal does not qualify and should be disclosed to the original requester.
ORDER:
1. I order the Ministry to disclose the record by sending the requester a copy no later than October 28, 1997 but not before October 23, 1997.
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 which is disclosed to the requester pursuant to Provision 1.
Original signed by: September 24, 1997
Tom Mitchinson
Assistant Commissioner