Access to Information Orders

INTERIM ORDER P-1441

 

Appeal P_9600438

 

Ministry of Natural Resources

 

 

NATURE OF THE APPEAL:

 

The appellant submitted a request under the Freedom of Information and Protection of Privacy Act (the Act) to the Ministry of Natural Resources (the Ministry).  The request was for access to all information in the Ministry’s possession relating to the introduction of the Aboriginal Communal Fishing Licences Regulations (ACFLR) in June 1993 and subsequent amendments in May and August 1994 and in January 1995.

 

The Ministry granted partial access to the records it identified as responsive to the request, claiming the following exemptions found in the Act:

 

∙           advice and recommendations - section 13

∙           relations with other governments - section 15

∙           economic and other interests - sections 18(1)(e) and (g)

∙           solicitor-client privilege - section 19

∙           invasion of privacy - section 21

 

The appellant appealed the denial of access.  During mediation, the Ministry disclosed additional records to the requester.  The Ministry disclosed a portion of Record 1-19b, and claimed that the undisclosed portion is not responsive to the request.  The appellant does not dispute the responsiveness of the undisclosed portion of Record 1-19b, and this record is, therefore, no longer at issue.

 

The appellant has narrowed the scope of the appeal by not pursuing access to the information severed from Records 3-1 to 3-16d, 3-22, 3-23 and 3-27 to 3-38.  Accordingly, these records and the application of section 21 of the Act are no longer at issue.

 

In addition to the exemptions originally claimed, the Ministry has applied section 12 of the Act to Record 1-7.  The Ministry has also withdrawn all of the exemptions previously claimed for 33 of the records at issue, and has agreed to provide access to three additional records and parts of a fourth. The records and exemptions remaining at issue are summarized in Appendix A attached to this order.

 

This office provided a Notice of Inquiry to the Ministry, the appellant and 15 parties whose interests could be affected by the outcome of this appeal (the affected parties).  Representations were received from the Ministry, the appellant and two of the affected parties.

 

DISCUSSION:

 

CABINET RECORDS

 

The Ministry submits that Record 1-7 falls within section 12(1)(f), which states:

 

A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including,

 

draft legislation or regulations.

I have examined this record and I find that it is a draft regulation, and is properly exempt under section 12(1)(f) of the Act.

 

SOLICITOR-CLIENT PRIVILEGE

 

The Ministry submits that Records 1-6, 1-9a, 1-11, 1-25, 1-26c, 1-47, 1-78 and 1-104 qualify for exemption under section 19 of the Act.  This section consists of two branches, which provide a head with the discretion to refuse to disclose:

 

1.         a record that is subject to the common law solicitor-client privilege  (Branch 1);  and

 

2.         a record which was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation (Branch 2).

 

The Ministry submits that the records fall within Branch 1 of the exemption.

 

In order for a record to be subject to the common law solicitor-client privilege (Branch 1), the Ministry must provide evidence that the record satisfies either of the following tests:

 

1.         (a)        there is a written or oral communication,  and

 

(b)        the communication must be of a confidential nature,  and

 

(c)        the communication must be between a client (or his agent) and a legal adviser,  and

 

(d)       the communication must be directly related to seeking, formulating or giving legal advice;

OR

 

2.         the record was created or obtained especially for the lawyer’s brief for existing or contemplated litigation.

 

[Order 49]

 

The records are letters and memoranda to and from two lawyers in the Ministry’s Legal Services Branch.  The Ministry states:

 

In that correspondence, these solicitors provide legal advice to their client, the Ministry, or provide updates upon the status of their legal work.

 

Having reviewed the records, I am satisfied that Records 1-6, 1-9a, 1-11, 1-47, 1-78 and 1-104 are confidential written communications between a client and a legal adviser which are directly related to seeking, formulating or giving legal advice and, therefore, qualify for exemption under the first part of Branch 1 of section 19. 

 

Records 1-25 and 1-26c are letters from a Ministry lawyer to a lawyer with the Government of Canada.  The Ministry relies on Branch 1 of the section 12 exemption for both records.  In Susan Hosiery Limited v. Minister of National Revenue [1969], 2 Ex. C.R.27, the criteria for the first part of the common law solicitor-client privilege are described as follows:

 

... all communications, verbal or written, of a confidential character between a client and a legal advisor directly related to the seeking, formulating or giving of legal advice or legal assistance (including the legal advisor’s working papers directly related thereto) are privileged ...

 

It is clear from the submissions that the Ministry’s solicitor prepared Records 1-25 and 1-26c for the purposes of preparing a legal opinion for his client, the Ministry.  I find that I have been provided with sufficient evidence to demonstrate that these records were directly related to the preparation of legal advice, which was then communicated to the client.  Accordingly, I find that Records 1-25 and 1-26c constitute part of the solicitor’s working papers within the meaning of the criteria expressed in Susan Hosiery.  As such, Records 1-25 and 1-26c satisfy the requirements of the first part of the solicitor-client privilege test and are exempt from disclosure.  In view of this finding, it is not necessary for me to consider the application of sections 9 and 10 of the Act to these records.

 

RELATIONS WITH OTHER GOVERNMENTS

 

For a record to qualify for exemption under section 15(a), the Ministry must establish that:

 

1.         the relations must be intergovernmental, that is relations between an institution and another government or its agencies;  and

 

2.         disclosure of the records could give rise to a reasonable expectation of prejudice to the conduct of intergovernmental relations.

 

[Order P-908]

 

In relying on this exemption, the Ministry refers to Ontario’s intergovernmental relations with Canada.  The records are correspondence between the Ontario Government and the Government of Canada over the issue of aboriginal fishing and the ACFLR and correspondence or briefing material dealing with the subject matter which was exchanged between provincial officials for the purpose of clarifying or establishing the Ministry’s position.  The Ministry submits that the subject matter in the records at issue in this appeal is the same as the subject matter in the records at issue in Order P-961.  In that Order, former Inquiry Officer Anita Fineberg found:

The Ministry states that Canada is involved in the issue of Aboriginal fishing rights because of the federal government’s primary responsibility for fisheries.  The Ministry states that any changes to the manner in which Aboriginal fishing rights are addressed in Ontario must be effected through regulations under the federal  Fisheries Act  by the federal government.  Ontario and the federal government are having continuing discussions on these matters.  Accordingly, I am satisfied that the relations between Ontario and Canada regarding the subject matter described in the records are intergovernmental.  Therefore, part one of the test has been satisfied.

 

I agree with the finding made by Inquiry Officer Fineberg, and find it applies equally in the circumstances of this appeal.

 

The Ministry states that the negotiations involve many complex and detailed historical, legal and policy issues, which the parties view and interpret differently.  The Government of Canada has disclosed a number of records to the appellant, and has provided its consent to the Ontario Government to disclose certain records to the appellant.  However, the Ministry maintains that disclosure of the records at issue could compromise the integrity of the negotiations by adding to the already considerable pressures it faces and will result in the failure of current and future negotiations.  Given the complexity and sensitivity of the negotiations, I find it reasonable to expect that disclosure of the records could adversely affect the negotiations and that there is a reasonable expectation of prejudice to the conduct of intergovernmental relations.  Accordingly, I find that the second part of the section 15(a) test has been satisfied in the circumstances of this appeal and the exemption applies.

 

ECONOMIC AND OTHER INTERESTS

 

The Ministry claims that Record 2-15 qualifies for exemption under section 18(1)(e), but it has not provided representations in support of its position.  In order to qualify for exemption under this section, the Ministry must establish the following:

 

1.         the record must contain positions, plans, procedures, criteria or instructions;  and

 

2.         the positions, plans, procedures, criteria or instructions must be intended to be applied to negotiations;  and

 

3.         the negotiations must be carried on currently, or will be carried on  in the future;  and

 

4.         the negotiations must be conducted by or on behalf of the Government of Ontario or an institution.

 

Record 2-15 is a typed draft (with handwritten comments) of Section 3 of the Letter of Commitment, which describes key issues to be discussed during negotiations.  These include common objectives to guide the negotiations, principles of negotiation, a timetable for negotiations, means by which any tentative agreements between the negotiating teams can be ratified by both sides, means by which disputes arising during the negotiations can be resolved and pros and cons of the options for approach or style.  The negotiations referred to are the current negotiations being conducted by the Ministry regarding Aboriginal fishing in Ontario.  Having reviewed the record, I am satisfied that it qualifies for exemption under section 18(1)(e).  However, the note at the top of the page suggests that this draft is two years old, and the format would suggest that a final version would have been prepared and shared with certain parties.  Accordingly, I order the Ministry to provide me with written representations regarding its exercise of discretion under section 18(1)(e) to address these specific points.  I remain seized of this issue.

 

The Ministry claims that Records 1-28, 1-33a, 1-83, 1-99, 1-103, 2-29, 2-32, 2-39, 2-44, 2-45,

2-45a, 2-48, 2-49 and 3-17 are exempt under section 18(1)(g) of the Act.  In order to qualify for exemption under this section, the Ministry must establish that a record:

 

1.         contains information including proposed plans, policies or projects;  and

 

2.         that disclosure of the information could reasonably be expected to result in:

 

(i)         premature disclosure of a pending policy decision, or

 

(ii)        undue financial benefit or loss to a person.

 

Each element of this two-part test must be satisfied [Order P-229].

 

In my view, the Ministry has not satisfactorily addressed the requirements of section 18(1)(g) which I have outlined above.  Based on the representations provided by the Ministry, I am not convinced that the information contained in the records is properly characterized as “proposed plans, policies or projects”, and even if it is, I find that the Ministry has not provided sufficient evidence to establish a reasonable expectation that the release of this information could result in premature disclosure of a pending policy decision or undue financial loss to the Ministry or benefit to any other person.  Accordingly, I find that section 18(1)(g) does not apply to the records.

 

ADVICE AND RECOMMENDATIONS

 

The Ministry submits that Records 1-83 and 2-29 are exempt under section 13 of the Act.

 

To qualify as “advice” or “recommendations”, the information contained in the records must relate to a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process (Order 118).

 

Having reviewed these two records, I find that only the first page of Record 1-83 contains advice as contemplated by section 13(1).  The remainder of Record 1-83 is a proposal from a band, and does not contain the advice or recommendations of a public servant or any person employed or retained by the Ministry.  While draft documents have been found to qualify for exemption under section 13(1), there is simply not enough evidence before me to convince me that Record 2-29 contains advice relating to a course of action which will ultimately be accepted or rejected by its recipient.

 

THIRD PARTY INFORMATION

 

The Ministry has not made representations in support of this exemption.  The author of Record 1-35, the Ontario Federation of Anglers and Hunters (the OFAH) submits that section 17 applies. For a record to qualify for exemption under section 17(1) of the Act, the party resisting disclosure, in this case, the OFAH, must satisfy the requirements of 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 must give rise to a reasonable expectation that one of the types of harms specified in sections 17(1)(a), (b) or (c) will occur.

 

[Order 36]

 

The failure to satisfy the requirements of any part of the test will render the section 17(1) claim invalid (Order 36).

 

I have not been provided with any information about the types of information listed in the first part of the test which the record reveals, or what the expected harm resulting from disclosure might be.  Having reviewed the record, I find that neither parts 1 nor 3 of the section 17(1) test have been met, and the exemption does not apply.

INVASION OF PRIVACY

 

In order to qualify for exemption under section 21, a record must contain “personal information” which is defined in section 2(1) of the Act as “information about an identifiable individual”.

 

Record 1-35 is a letter written on the letterhead of the OFAH.  It is written by the President of the OFAH, on behalf of the OFAH and must be taken as having been written in his official capacity.  It does not, therefore, contain personal information as defined in the Act.  Accordingly, I find that Record 1-35 does not qualify for exemption under section 21 of the Act.

 

PUBLIC INTEREST OVERRIDE

 

In her representations, the appellant raised the application of section 23 of the Act.  This issue was not raised previously in the inquiry and did not, therefore, appear in the Notice of Inquiry sent to the Ministry.  Section 23 of the Act states as follows:

 

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

 

Section 23 imposes two requirements, both of which must be satisfied in order to invoke the application of the so_called public interest override: (1) there must be a compelling public interest in disclosure; and (2) this compelling public interest must clearly outweigh the purpose of the exemption.

 

In Order P_984, I described the criteria for the first requirement mentioned in the preceding paragraph, as follows:

 

In order to find that there is a compelling public interest in disclosure, the information contained in a record must serve the purpose of informing the citizenry about the activities of their government, adding in some way to the information the public has to make effective use of the means of expressing public opinion or to make political choices.  (emphasis added)

 

In addition to ordering the Ministry to provide further representations on the application of section 18(1)(e) to Record 2-15, I will extend to the Ministry, the appellant and the affected parties the opportunity to submit representations on the issue of the application of section 23 to those records which I have found qualify for exemption under sections 13, 15 and 18 of the Act.  The parties are asked to note that section 23 does not apply to those records which I have found to be exempt under sections 12 and 19 of the Act.

 

 

 

ORDER:

 

1.         I order the Ministry to disclose Records 1-23a, 1-26a, 1-26b, 1-28, part of Record 1-31c (and the corresponding parts of its duplicate Record 1-29), 1-33a, 1-35, 1-39, 1-45a, 1-60, 1-65a, 1-65b, 1-65c, 1-65d, 1-68, 1-76, 1-83 (with the exception of the first page), 1-90, 1-98, 1-99a, 1-103, 2-6, 2-8, 2-11, 2-16, 2-29, 2-32, 2-39, 2-40a, 2-41, 2-42, 2-44, 2-44b, 2-45, 2-45a, 2-48, 2-49, 3-2a, 3-3a, 3-5, 3-17, 3-18, 3-20, 3-21, 3-26, 3-31, 3-32, 3-33, 3_34, 3-37, 3-39 and 3-42a to the appellant by sending her a copy by September 15, 1997 but not before September 10, 1997.

 

2.         I uphold the Ministry’s decision to deny access to Records 1-6, 1-7, 1-9a, 1-11, 1-25,

1-26c, 1-47, 1-78 and 1-104.

 

3.         I order the Ministry to provide me with representations respecting the exercise of discretion to apply section 18(1)(e) to Record 2-15 by September 15, 1997.  I remain seized of this issue.

 

4.         I invite the parties to provide me with representations respecting the application of section 23 to the records which I have found to qualify for exemption under sections 13, 15 and 18 by September 15, 1997.  These should be sent to me c/o Information and Privacy Commissioner/Ontario, 80 Bloor Street West, Suite 1700, Toronto, Ontario M5S 2V1.

 

5.         In order to verify compliance with the provisions of this Interim order, I reserve the right to require the Ministry to provide me with a copy of the records which are disclosed to the appellant pursuant to Provisions 1 and 3.

 

 

 

 

 

 

 

 

Original signed by:                                                                            August 11, 1997                     

Holly Big Canoe

Inquiry Officer

 

 

APPENDIX A

INDEX OF RECORDS AT ISSUE

Appeal Number P-9600438. Request 960035-FOI

February 11, 1997