[T]he competition materials are valuable business information assets in the human resources marketplace.  As per the attached information from two internet sites, it is clear that there is a market for quality recruitment tools.

Private organizations are able to control dissemination of their valuable business information assets.  The Ministry is of the view that similar protection should be extended to the responsive record which can be viewed as a business information asset belonging to the Ministry.

The record at issue is, as I noted above, a human resources record which was developed by the Ministry for the purpose of determining the suitability of prospective candidates for employment in the Coroner's office as a Forensic Pathologist's Assistant.  In my view, the fact that there exists a human resources marketplace does not automatically render every human resources document a "valuable business information asset".  As noted by Adjudicator Big Canoe, the record itself must have intrinsic value, the disclosure of which would deprive the Ministry of the monetary value of the information.

The attachments to the Ministry’s representations indicate that there is literature being marketed relating to the recruitment process, including guides that describe the "how to's" for recruiting, such as "Establishing a scoring system" or "How to craft Behavioural Descriptive Interview Questions".  However, as I noted above, the Ministry does not address how this particular record has value within this marketplace or whether the Ministry has any intention of entering the market.  Moreover, the specificity of the interview questions designed to elicit information about the candidates for this particular position, in my view, raises questions as to the record's general applicability as a recruitment tool in the larger market.  

Therefore, even if I were to find that the record contains one of the requisite types of information, the exemption in section 18(1)(a) is not available to withhold the record because the Ministry has failed to establish that the record has monetary or potential monetary value.          

Section 18(1)(c): prejudice to economic interests/competitive position

Section 18(1)(c) provides institutions with a discretionary exemption which can be claimed where disclosure of information could reasonably be expected to prejudice an institution in the competitive marketplace, interfere with its ability to discharge its responsibilities in managing the provincial economy, or adversely affect the government's ability to protect its legitimate economic interests (Orders P-441, PO-1921).

In Order PO-1747, Senior Adjudicator David Goodis stated:

The words “could reasonably be expected to” appear in the preamble of section 14(1), as well as in several other exemptions under the Act dealing with a wide variety of anticipated “harms”.  In the case of most of these exemptions, in order to establish that the particular harm in question “could reasonably be expected” to result from disclosure of a record, the party with the burden of proof must provide “detailed and convincing” evidence to establish a “reasonable expectation of probable harm” [see Order P-373, two court decisions on judicial review of that order in Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 at 476 (C.A.), reversing (1995), 23 O.R. (3d) 31 at 40 (Div. Ct.), and Ontario (Minister of Labour) v. Big Canoe, [1999] O.J. No. 4560 (C.A.), affirming (June 2, 1998), Toronto Doc. 28/98 (Div. Ct.)].

The Ministry states:

As evidenced in the comments regarding the application of section 18(1)(a), the Ministry is of the view that there is currently a market for competition materials.  The Ministry expends financial and human resources to develop competition materials.  The Ministry believes that competition materials in general are valuable business information assets in the human resources community.  Uncontrolled and routine public release of such records could result in the taxpayers of Ontario subsidizing private organizations that market competition materials.  These organizations would avoid paying the expenses that the Ministry has incurred to develop competition materials.  This circumstance would prejudice the economic interests of the Ministry.

The Ministry’s Human Resources Branch does not have a central database of questions and answers for re-use in competitions.  However, the Branch maintains competition files in accordance with appropriate retention schedules which require that such information be retained for several years.  The Branch refers to closed competition files periodically to obtain questions and answers for similar types of recruitment.

Public dissemination of competition materials could potentially influence and flaw future competitions.  The Ministry, as an employer, has a continuing legal and management interest in ensuring that job competitions are fair.  As noted above, questions asked in one competition have the potential to be re-used in competitions for identical or similar positions.  There are significant labour relations implications if the questions and/or answers are known in advance to some, but not all, of the applicants.  Situations where candidates believe competitions are flawed may lead to grievances being filed pursuant to collective agreements or the Public Service Act.  Additionally, the Ministry is bound by the Ontario Human Rights Code with respect to job competitions and recruitment activities.  Candidates who believe they have been discriminated against may file complaints alleging violations of their human rights.

The process of resolving grievances and human rights complaints has significant financial implications for the Ministry.  It is estimated that it costs the Ministry approximately $5,000 to respond to a grievance that requires adjudication before the Grievance Settlement Board or a human rights complaint that is successfully mediated at an early stage of the process.

The Ministry has made it very clear, both during mediation and in its representations that it disagrees with Adjudicator Nipp’s finding that section 65(6) does not apply to this record.  The Ministry has, as is its right, brought an application for judicial review of her decision and this issue will ultimately be determined in that forum.  Since the Ministry’s submissions relating to its “legal interest” in the labour relations issues relating to these types of documents have already been addressed in Order PO-1863, I will not revisit them here. 

In Order PO-1921, Senior Adjudicator Goodis addressed virtually identical submissions by the Ministry in that case relating to the disclosure of policies and procedures manuals from the Office of the Fire Marshal.  Although there are differences in the types of records and some of the factual circumstances in that case, Senior Adjudicator Goodis’ comments relating to the Ministry’s submissions on its competitive position in the marketplace and the adverse consequences for its economic interests (as noted above) are similarly applicable in the current appeal, and I adopt them for the purpose of disposing, in part, of this issue.  He stated:

The Ministry does not support this assertion by offering any additional documentation or other evidence that describes any actual or potential plans for implementing such a training program at any time, let alone in the reasonably foreseeable future.  The Ministry itself submits that it would only be at a competitive disadvantage “in the event that it ultimately decides to offer external fee for service training”, suggesting that any reasonable prospect of competitive harm in the context of offering such a program is at best speculative.  The Ministry indicates that it is proposed that such a program, if one is ultimately developed and implemented, would be on a cost-recovery basis, so that it is not apparent that its economic interests would be affected in any significant or material way by disclosure of what it describes as source documents.

The Ministry further submits that it has expended considerable financial and human resources to develop the records, and that Ontario taxpayers would thereby end up subsidizing private organizations which would avoid paying these significant expenses to develop similar materials.  I am not persuaded by these assertions that the Ministry’s competitive or economic interests could reasonably be expected to be prejudiced by disclosure.  Firstly, I have been provided with no detail or other evidence beyond these bare assertions.  Secondly, there is nothing else on the record before me to suggest that the appellant or any other private entity could reasonably be expected to use the materials to crib or piggyback on the Ministry’s efforts for competitive gain.

I found above that these questions are unique to the position for which they were created.  It is not apparent that a private organization would find any significant advantage in using these questions or scoring for their own purpose. 

Moreover, as far back as 1992, the Ministry has expressed concerns about prejudice to its economic interests should this type of record be disclosed.  In Order P-339, Assistant Commissioner Tom Mitchinson addressed them as follows:

The institution submits:

Unsuitable correctional officers can represent a significant financial drain on the ministry's resources. This results from increased training needs, increased work absences, increased administrative errors, and increased operational and security errors ‑ all of which prove to be very costly for the ministry.

Furthermore, security errors can also prove to be quite costly for other agencies such as transfer payment agencies, the police and the courts.

A further prejudice relates to the time and money invested in developing competition questions and ideal responses. In this period of constraint, it is questionable for this ministry to utilize scarce resources in order to constantly prepare new questions and ideal responses. Given the clearly defined and very limited scope of the correctional officer position ‑ essential duties centre around the care, custody, and control of offenders ‑ it is time‑consuming, difficult and costly for human resources personnel to keep developing fresh questions.

In my view, the information contained in the question and answer sheets is not the type of information which section 18 was designed to protect. I find that the institution has failed to establish the requirements for exemption under sections 18(1)(c) and/or (d), and I order the institution to disclose the question and answer sheets to the appellant, subject to the agreed‑upon severance of all identifying personal information.

With respect to the estimated costs to the Ministry associated with responding to a grievance, I find that the Ministry’s submissions are highly speculative with respect to the possible consequences of disclosure of this record. 

Further, as part of its submissions in regard to this section and above with respect to section 18(1)(a), the Ministry indicates that, on the one hand, there is a market for this type of human resources record.  I presume the intention in raising the possibility of entering this market is that the Ministry might be contemplating selling this information to the public.  On the other hand, the Ministry asserts that disclosure of this document could lead to grievances if one prospective candidate finds out that another had access to the questions.  These two positions are not only inconsistent but are incompatible.

Finally, I find that the Ministry’s submissions consist primarily of generalized and/or vague assertions concerning both the basis for arguing that there is a competitive marketplace for the  record at issue and that disclosure of this record could reasonably be expected to prejudice its economic interests or competitive position in such a marketplace or in any other capacity. 

Based on my rejection of the various arguments put forth by the Ministry, consistent with previous orders of this office, and the generality of its submissions, I cannot conclude that there is any material competitive advantage to other organizations, or a corresponding competitive disadvantage to the Ministry, in the disclosure of this record.  Nor am I able to conclude that the Ministry’s economic interests could reasonably be expected to be prejudiced by disclosure of this record within the intended meaning of the exemption in section 18(1)(c).  Accordingly, I find that the Ministry has failed to provide detailed and convincing evidence to establish a reasonable expectation of probable harm as contemplated by section 18(1)(c) and this section does not apply.

As no other exemptions have been claimed for this record, it should be disclosed to the appellant.

As I noted above, the Ministry has brought an application for judicial review of the decision in Order PO-1863.  In order to preserve the Ministry’s right to have this issue determined by the court, I will stay my disclosure order.

ORDER:

1.         I order the Ministry to disclose the record, in its entirety, to the appellant.

2.         My order for disclosure of the record under Provision 1 of this order is stayed pending the disposition by the Superior Court of Justice (Divisional Court) of the current judicial review of Interim Order PO‑1863.

3.         In order to verify compliance with the provisions of this order, I reserve the right to require the Ministry to provide me with a copy of the record which is disclosed to the appellant pursuant to Provision 1.

Original signed by:                                                                        July 31, 2001                                         

Laurel Cropley