Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The appellant submitted a seven (7) part request to the Ministry of Transportation (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act) for access to: “all Request for Proposal (RFP) Summary Charts, Construction Scores for the following work projects: 1. G.W.P. 273-96-00 Highway 401 from Wesleyville Road to Highway 2, Eastern Region 2. W.P. 10-93-00 Highway 401 from 2.6 km east of Nagle Road easterly to 1.4 km west of Shelter Valley Road, Eastern Region 3. W.P. 521-91-00 Highway 401 from Joyceville Road to Highway 32, Eastern Region 4. W.P. 7-93-00 Highway 401 from 0.8 km west of Little Lake Road westerly to 1.4 km west of Shelter Valley Road, Eastern Region 5. W.P. 11-93-00 (Part ‘A’) Highway 401 from 2.4 km west of Burnham Street easterly to 2.6 km east of Nagle Road, Eastern Region 6. W.P. 271-96-00-01-02-03 and W.P. 424-98-01 Highway 401 from 0.4 km west of Durham, Northumberland Boundary Road, easterly 5.6 km, Eastern Region.” Before issuing its decision on access to the requested records, the Ministry notified nine consultants (the affected parties) who had submitted proposals in response to the RFPs pursuant to section 28(1) of the Act, since their interests might be affected by disclosure of the records at issue. In addition, the Ministry notified an association that represents the interests of most companies in the consulting engineering industry (the intervenor) to seek its views on the application of section 17 to the type of information requested. In doing so, the Ministry noted that this organization has, in the past, expressed concerns regarding the disclosure of this type of information. Six of the nine affected parties responded to the Ministry and objected to the disclosure of the information pertaining to their companies in the records. The intervenor also submitted representations to the Ministry objecting to the disclosure of this type of information. The Ministry then denied access to the Summary Chart Construction Scores for the work projects identified in the request under sections 13(1) (advice or recommendations), 17(1)(a)(b) and (c) (third party information), and 18(1)(c) and (d) (economic and other interests) of the Act. The appellant appealed the Ministry's decision. - 2 - [IPC Order PO-1993/February 28, 2002] During the course of mediation the Ministry confirmed that responsive records were identified only with respect to items 1, 2, 4, and 5 of the appellant’s request. The Ministry indicated that records do not exist for “W.P. 271-96-00-01-02-03 and W.P. 424-98-01 Highway 401 from 0.4 km west of Durham, Northumberland Boundary Road, easterly 5.6 km, Eastern Region” or “W.P. 521-91-00 Highway 401 from Joyceville Road to Highway 32, Eastern Region” (Items 3 and 6 of the request). Also during mediation, the appellant narrowed his request to access to a portion of the requested records, namely, the Project Supervisor scores. He indicated further that he was no longer seeking the identities of any party. The Project Supervisor score is found under that heading in Records 1 and 2, identified as RFP Summary Charts. It was confirmed with the Ministry that the “Project Supervisor” score is found on the Total Projects Management (the TPM) Scoring Sheets under the “Management Plan” heading at subheading “Contract Admin” (Records 3 and 4). The remaining portions of these records, including the names of the companies for which each score is given and the names (initials) of the Ministry staff who conducted the evaluations, are no longer at issue. Finally, the appellant believes that records exist for items 3 and 6 of his request. The mediator assigned to this file sent out her Report of Mediator to the appellant and the Ministry. The Ministry responded to the Report, indicating that it accurately reflects the facts and issues in the appeal as they stood at the time the Report was prepared. However, the Ministry raised two matters that arose subsequent to the issuance of the Report: • the Ministry indicated that it withdraws its reliance on the mandatory exemption in section 17(1) of the Act; and • the Ministry conducted one further search for responsive records, and located a record responsive to item 3 of the appellant's request. The Ministry attached a copy of this record to the letter and stated that it continues to rely on the exemptions in sections 13(1) and 18(1)(c) and (d) for this record, as well as those previously located. Further mediation could not be effected and this appeal was moved on to inquiry. I decided to seek representations from the Ministry, initially. In addition, despite the withdrawal of its section 17(1) claim, I provided the affected parties with an opportunity to address this issue given the mandatory nature of the exemption. I sent the Notice of Inquiry to eight of the affected parties originally identified by the Ministry. One affected party had advised the mediator during mediation that it did not wish to participate further in the appeal. On that basis, I did not notify this party. Pursuant to section 13 of the Information and Privacy Commissioner (the IPC) "Code of Procedure", the IPC may notify and invite representations from any individual or organization who may be able to present useful information to aid in the disposition of an appeal. In view of the role of the intervenor in representing the interests of companies operating in this particular sector and its previously stated position regarding the types of information at issue in this appeal, I decided to seek its representations on the section 17(1) issue as well. - 3 - [IPC Order PO-1993/February 28, 2002] The Ministry submitted representations in response, as did the intervenor and three of the affected parties who were notified. In addition, the affected party who had indicated during mediation that it did not wish to participate submitted representations in direct response to the issues raised in the Notice of Inquiry, although this document was not sent to it. Based on its representations, however, I am satisfied that it has made itself aware of the issues in this appeal and has had an opportunity to fully present its position on them. Two affected parties contacted this office to advise that they would not be submitting representations, and the remaining three did not respond to the Notice. All of the parties who responded objected to disclosure of the information at issue. In all cases, the affected parties referred to and adopted the representations submitted by the intervenor. Two of the affected parties submitted additional representations. After reviewing these submissions, I decided that it was not necessary to hear from the appellant on the substantive issues in the appeal. The Ministry’s representations included affidavits sworn by two of its employees relating to the steps taken to search for and locate responsive records. I sent a Notice of Inquiry to the appellant along with copies of these affidavits and asked that he provide representations on the reasonableness of search issue only. The appellant submitted representations in response, which I then sent to the Ministry in order to provide it with an opportunity to reply on this issue. The Ministry submitted further affidavits in response. RECORDS: The records at issue are described as follows: • Record 1 - RFP Summary Chart, Construction Office Scores, WP 273-96-00 (1 page). The information at issue is located at line 3 of this record; • Record 2 - RFP Summary Chart, Construction Office Scores, WP 10-93-00 (1 page). The information at issue is located at line 5 of this record; • Record 3 - TPM Scoring Sheets, WP-11-93-00 (6 pages). The information at issue is located under the heading "management Plan" at subheading "Contract Admin"; • Record 4 - TPM Scoring Sheets, WP-7-93-00 (6 pages). The information at issue is located under the heading "management Plan" at subheading "Contract Admin"; and • Record 5 - RFP Summary Chart, Construction Office Scores, W.P. 521-91-00 (1 page). The information at issue is located at line 3 of this record. - 4 - [IPC Order PO-1993/February 28, 2002] Preliminary comments regarding the scope of this appeal The Ministry and affected parties, including the intervenor, express concerns about disclosure of the records in their totality. As the Intervenor notes in its representations: [W]e understand that the appellant is no longer requesting the identification of the companies involved, but this does not alter our opposition to the request. Given the nature of the marketplace, it is clear that the requested information, in combination with information previously released by [the Ministry], would definitely identify the companies and their detailed scoring on the projects in question. Accordingly, I have not restricted my consideration of the issues to only that information requested by the appellant, but rather, have taken into account the broader implications of the disclosure of any information from the records. DISCUSSION: REASONABLENESS OF SEARCH: Where a requester provides sufficient detail about the records which he is seeking and the Ministry indicates that further records do not exist, it is my responsibility to ensure that the Ministry has made a reasonable search to identify any records which are responsive to the request. The Act does not require the Ministry to prove with absolute certainty that further records do not exist. However, in my view, in order to properly discharge its obligations under the Act, the Ministry must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate records responsive to the request (Orders M-282, P-458 and P-535). A reasonable search would be one in which an experienced employee expending reasonable effort conducts a search to identify any records that are reasonably related to the request (Order M-909). Although an appellant will rarely be in a position to indicate precisely which records have not been identified in an institution’s response to a request, the appellant must, nevertheless, provide a reasonable basis for concluding that such records may, in fact, exist. In responding to this issue, the Ministry provided affidavits sworn by the head of Engineering Claims in the Eastern Region Construction office and the head of Construction Administration in the Eastern Region Construction office. Both affiants explain their roles at the Ministry and their knowledge and familiarity with the types of records requested, the filing systems within their offices and records storage protocols. The head of Construction Administration indicates that he supervised the search for and collection of the requested records. He states: - 5 - [IPC Order PO-1993/February 28, 2002] It is the practise of the Ministry’s Eastern Region Construction Office to maintain two filing systems in regards to the consultant evaluation process, one electronic and the other paper. As a result of the Ministry’s storage protocol, I contacted [the head of Engineering Claims] and the former Chairperson of the Consultant Evaluation Committee, about the electronic files for the Documents, because his duties as the former Chairperson of the Consultant Evaluation Team required him to keep and maintain the electronic files on his laptop… With respect to the paper files of the Documents, I instructed [the Senior Construction Administration Technician] for the Ministry, and one of the members of the Consultant Evaluation Team, who has knowledge of the Ministry’s storage protocol, to undertake a search of the paper files pertaining to the construction scores for the six projects requested. [The Senior Construction Administration Technician] specifically searched the consultant acquisition files, the construction contract files and the work project files located at the Eastern Regional Head Office in Kingston. [A construction Contract Control Officer] working out of the Ministry’s Port Hope field office, [searched] the Port Hope office, because the six construction projects listed in the Request are administrated by the Ministry’s Port Hope office. As well,… a Project Manager in the Planning and Design Office … in Eastern Region [searched] the files in the Planning and Design Office because some of the requested Documents involved contracts that were evaluated by this office. The head of Construction Administration indicates that further similar searches were conducted during the mediation stage of the appeal for records responsive to items three and six of the request. He explained that originally some documents relating to these two projects had been located but “these documents did not show the Project Supervisor’s score because this particular score had not been requested.” He also asked various staff to review their personal files for responsive records. As a result of this search a Contract Control Officer located his personal summary sheet for the project identified as item three and this record was forwarded to the Freedom of Information and Privacy office. He confirms that no other records were located as a result of the additional searches. He notes that the retention schedules for construction files that were applicable between 1997 and 2000 did not include the evaluation documentation since this process was recently implemented in 1996, and the retention schedules were not amended until 1998. He indicates, however, that it is possible that the record that would be responsive to item three of the request has been destroyed as a result of various office furniture upgrades and office relocations at the - 6 - [IPC Order PO-1993/February 28, 2002] Regional and Port Hope Construction Offices between 1997 and 2000. He also states that it has been the practice of the Construction Office that the “originator office” of the files would be responsible for their retention and as Construction was not the originator of the RFPs stated in the request, it did not keep or maintain the score sheets. Finally, the head of Construction Administration states that a search was not conducted at the Ministry’s off-site records storage area (for archived records) due to the fact that the construction contracts were only completed in 2000/2001 and 2001/2002 and the documents would have been kept with the construction files in the Regional and field offices. In his affidavit, the head of Engineering Claims explains why and how the electronic files are maintained. He states that he would have placed any documents relating to the request on his laptop computer’s hard drive. He states that his laptop computer was stolen during a break-in at the Ministry’s Regional office on or about May 19, 2000. He attached a certified true copy of the police incident report relating to the break and enter. The head of Engineering claims states that he did not make back-up copies of the electronic files and to date, the laptop computer has not been found. He confirms that various staff conducted further searches for responsive records in contract files, work project files and their personal work files at either the Eastern Region office in Kingston or at the Field Operations Centre in Port Hope. He concludes: It was the practice of the Construction Office to forward the total score for the Construction Administration Portion and the Contract Administrator’s score to the Project Manager in the Engineering Office for TPM Design and Construction Administration Consultant Assignments. Once the assignment was awarded and completed, the scoring summaries in Construction as one part of the TPM total evaluation process were typically destroyed. These two affidavits were provided to the appellant. In response to them, he poses a number of questions relating to the appropriate offices to be searched, and in particular, whether the “originating office” was searched. He notes that records relating to items three and six should have been retained pursuant to the 1998 retention schedule since they were completed after this date (it appears he is not satisfied with the existence of only one record pertaining to item three in the personal files of a Ministry employee). He also believes that there should be a back-up disk as well as hardcopy of the records. In this regard, he indicates his belief that the hard drive in the Ministry’s computer network would also contain the files responsive to his request. He queries whether this hard drive was searched. Finally, he believes that the archived files should have been searched as these projects were completed in either the fall of 2000 or the summer of 2001. The Ministry submitted further affidavits in response to the appellant’s questions. - 7 - [IPC Order PO-1993/February 28, 2002] In his affidavit, the head of Engineering Claims reiterates that any responsive records on his laptop would have been created by him, that no-one else would have made back-ups without his knowledge and that he did not back-up these documents on the laptop computer itself, on the Ministry’s computer network, on floppy disk or on any other computer or computer system. In responding to the issues raised by the appellant, the head of Construction Administration states that, in this case, the originating office is the Kingston office. He reiterates that a search for responsive paper records was conducted in both the Kingston and Port Hope offices. He notes that this was done because of the relocation of staff between the two offices and the possibility that certain records may have followed them during their moves. He also disputes the completion dates suggested by the appellant, noting that although the “substantial completion dates” were July 24, 2000 and July 24, 2001, respectively, the construction warranty period for each project extended for another year. He states: Based upon the aforementioned substantial completion dates of these projects, it is not the practice of the Ministry to place Responsive Documents into the archived files as suggested by the Requester, because the projects are still current. Based on the affidavits provided by Ministry staff, I am satisfied that a full and complete search for responsive records was conducted. Moreover, the Ministry has provided a reasonable explanation for the possible destruction of the missing records (albeit outside of its records retention schedule). Accordingly, I find that the Ministry’s search for responsive records was reasonable in the circumstances. ECONOMIC AND OTHER INTERESTS Sections 18(1)(c) and (d) provide: A head may refuse to disclose a record that contains, (c) information where the disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution; (d) information where the disclosure could reasonably be expected to be injurious to the financial interests of the Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario; Section 18(1)(c) provides institutions with a discretionary exemption which can be claimed where disclosure of information could reasonably be expected to prejudice the economic interests of an institution or the position of an institution in the competitive marketplace (Order P-441) . - 8 - [IPC Order PO-1993/February 28, 2002] To establish a valid exemption claim under section 18(1)(d), the Ministry must demonstrate a reasonable expectation of injury to the financial interests of the Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario (Orders P-219, P-641 and P-1114). 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.)]. Applying this reasoning, in order to establish the requirements of the section 18(1)(c) or (d) exemption claims, the Ministry must provide detailed and convincing evidence sufficient to establish a reasonable expectation of probable harm as described in these sections resulting from disclosure of the records. In responding to the issues in the appeal, the Ministry has provided extensive background information relating to the government procurement policy generally and the process it has developed for the awarding of contracts. In essence, the Ministry notes that, as per Management Board of Cabinet Directive, competitive bidding for the acquisition of consulting contracts is essential in order to obtain the best value for the funds to be expended. The Ministry states that it has recently, through a lengthy development process involving industry consultations, arrived at a new “two-stage system of award” in the tendering for the services of a consultant. This system is part of an acquisition process referred to as “Total Project Management” (TPM) which was first introduced several years ago as part of the Ministry’s outsourcing initiative, although it only came into effect on January 1, 2001. The Ministry indicates that pursuant to the TPM: the Ministry hires a consulting engineering firm to design a highway and then to carry on with the administration and supervision of a construction firm who actually builds the highway. In some cases, the Ministry hires the consultant to solely carry out the administration and supervision of the construction firms work on the highway construction project. - 9 - [IPC Order PO-1993/February 28, 2002] The Ministry explains the difference between the system prior to January 1, 2001 and as it currently stands: As per the system that was in place until December 31, 2000, bidders submitted their Technical and Management Proposal to the Ministry in confidence. The Total Competitive Cost for each Proposal was divided by the Total Score for the Technical and Management Proposal to give the Price/Score Ratio for that Proposal. The best proposal was deemed the one with the lowest Price/Score Ratio. Effective January 1, 2001, a Corporate Performance Rating (CPR), which measures the past performance of a firm on prior Ministry projects, was introduced into the evaluation process. The Total Competitive Cost, the score of the Technical and Management Proposal and CPR of a firm are weighed at 20, 30 and 50 percent respectively under this new evaluation system. The weighted score for each of these components is added. The firm with the highest total score wins the assignment. The Ministry notes that, although the records at issue were created prior to this new system coming into place: Many of the fundamental concepts, the approach and steps are the same … and the impacts of the access to Records should be measured with respect to the new system. The Ministry explains that debriefing sessions are held after the contract is awarded and that it does provide the specific scores to each consultant, presumably so that each proponent can determine for itself where it was weakest. The Ministry continues that the consultants are, therefore, quite knowledgeable about the details of their specific scores and how the scores are used by the Ministry to evaluate proposals. The Ministry argues that disclosure of the requested information “would damage the integrity of the consulting bidding system”. The Ministry concludes: The result would be unfairness to all bidders who do not possess this information and would have serious economic impacts on the Ministry in terms of prices sought and in the number and quality of the bids received for each and every contract. The alternative to the disclosure of the scores is to not evaluate the consultants on the basis of their past performance or ability, so that no documents are created. However, such an option is not in keeping with the need of the Ministry to obtain the best work at the lowest possible price, employing a fair and equitable process. Initially, I have some difficulty accepting the Ministry’s position that the “harms” resulting from disclosure of the records at issue, created prior to the implementation of the new system, should - 10 - [IPC Order PO-1993/February 28, 2002] be assessed based on the same criteria as the new system. This argument suggests that regardless of the “system”, the Ministry will suffer economic harm if the records are disclosed. Yet it has gone to great lengths to explain how the specific construction of the new “weighted” system has created a situation where full disclosure of the records could reasonably be expected to place proponents in a position to anticipate and thus manipulate the tendering process at a significant cost to the Ministry. I am not convinced that the same concerns (as described in the Ministry’s representations) arise in the former system such that this leap can or should be made. Regardless of any similarities in concepts, approach or process, I am not persuaded that the anticipated harms could reasonably be expected to occur from disclosure of the information at issue (or the entire record for that matter) under either system, as discussed below. The Ministry indicates that the consultant selection system uses three variables in a mathematical formula. These variables consist of the technical score, weighted at 30%, the consultant past performance score (CPR), weighted at 50% and the price, weighted at 20%. The Ministry notes that the consultant industry that bids on Ministry projects is relatively small and that most consultants know whom they are competing against. It should be noted that the Ministry’s web site contains a reasonably detailed description of the new system and explains essentially how each variable is calculated. The Ministry states further: [T]he consultants can rely upon the debriefing session to fully understand the details of the evaluation system save for the lack of information of the scores of other consultants. If the scores of the other consultants were to be known, the consultant would be in a position to adjust its bid price to maximize its price while still being awarded the contract. … If the request were granted, the precedent value of such a decision would allow numerous other persons to obtain this information. The use of this information would exploit the evaluation system of the Ministry to the sole benefit of the consultants and the public detriment. Consultants with high technical and past performance scores would be able to price their work higher without the concern for the open market, because they would know how to price their work without fear of the open market competition. The Ministry provides a number of examples of the manner in which the information can be used, resulting in harm to its economic interests. The Ministry requested in its representations that these portions not be shared with the appellant because to reveal the means by which an outside party could cause harm to the Ministry would result in the very harm it is seeking to prevent. In my view, the submissions of the Ministry regarding the sharing of its representations undermine its argument that disclosure would damage the integrity of the bidding system. In this regard, the Ministry indicates that certain information relating to two of the variables “is not a generally known fact in the consultant industry” and is “in fact … internal knowledge of the - 11 - [IPC Order PO-1993/February 28, 2002] Ministry”. The Ministry appears to suggest that knowledge of the scores, combined with internal “confidential” Ministry information (which is not at issue in this appeal), could be used by a party to manipulate the tendering process generally. However, the information in the records comprises only one part of the overall assessment. By the Ministry’s own admission, a party would require additional information that, at present, is not known within the industry but is closely held by the Ministry, in order to be able to manipulate the evaluation process in such a way as to affect the Ministry’s economic or financial interests. In my view, the need to combine this additional “internal” Ministry information with the information at issue is fatal to this argument relating to harm. Accordingly, I find that the Ministry has failed to meet its onus in providing detailed and convincing evidence sufficient to establish that disclosure of the records at issue (or the entire record for that matter) could reasonably be expected to result in either of the harms in sections 18(1)(c) and/or (d) on the basis of this argument. On the other hand, the Ministry may be suggesting that revealing the scores would permit a party to determine what the Ministry already knows. Because the Ministry has requested that this information not be made public, I am somewhat restricted from providing details of its argument. Suffice it to say that the Ministry, through its examples, has attempted to demonstrate how a party using the information in the records could manipulate the scores in such a way as to gain an unfair advantage over other competitors. Essentially, the Ministry submits that knowledge of the scores of its competitors would permit a consultant to gauge their strengths and weaknesses with respect to all of the evaluation criteria and thus adjust its bids for future tenders accordingly. The end result of this ability to “exploit” the evaluation system, as suggested by the Ministry, could be an undercutting or inflation of the bid prices with the attendant problems either situation creates. Ultimately, according to the Ministry, this could reasonably be expected to impact negatively on its financial interests. This argument suggests that there is a consistency in the scoring for each company across projects, and that a competitor would be able to take this information and, through its own calculations, determine the scores that the other bidding companies could expect to obtain for any future project. The scores on the records at issue relate to similar types of projects, thus I would expect that the evaluation criteria are somewhat comparable; although it may be that there are variations. However, based on the Ministry’s submissions, I must assume that there are similar expectations with respect to all of the projects. I, therefore, examined the scoring on the records at issue to determine whether it supported the Ministry’s argument. In cases where certain companies submitted bids on more than one project, I observed variations in the scores for each company across the different projects. I also noted that it appears that in some cases the same evaluator (as identified only by initials or first name) assigned different scores to the same company with respect to different projects. Based on the variations within the - 12 - [IPC Order PO-1993/February 28, 2002] records, including the scores, the companies bidding for the different projects and the composition of the evaluation team, I am not convinced that disclosure of the records at issue or the record overall would permit the kind of in-depth analysis and interpretation suggested by the Ministry in a way that could reasonably be expected to result in the harms contemplated by sections 18(1)(c) and/or (d). The Ministry also suggests that the scores it gives a particular consultant may adversely affect its reputation in the marketplace. The Ministry claims that if consultants know the scores will be released, they may choose not to compete for Ministry contracts. The Ministry submits that this could result in the loss of valuable consulting resources
Decision Content
NATURE OF THE APPEAL:
The appellant submitted a seven (7) part request to the Ministry of Transportation (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act) for access to: “all Request for Proposal (RFP) Summary Charts, Construction Scores for the following work projects:
1. G.W.P. 273-96-00
Highway 401 from Wesleyville Road to Highway 2, Eastern Region
2. W.P. 10-93-00
Highway 401 from 2.6 km east of Nagle Road easterly to 1.4 km west of Shelter Valley Road, Eastern Region
3. W.P. 521-91-00
Highway 401 from Joyceville Road to Highway 32, Eastern Region
4. W.P. 7-93-00
Highway 401 from 0.8 km west of Little Lake Road westerly to 1.4 km west of Shelter Valley Road, Eastern Region
5. W.P. 11-93-00 (Part ‘A’)
Highway 401 from 2.4 km west of Burnham Street easterly to 2.6 km east of Nagle Road, Eastern Region
6. W.P. 271-96-00-01-02-03 and W.P. 424-98-01
Highway 401 from 0.4 km west of Durham, Northumberland Boundary Road, easterly 5.6 km, Eastern Region.”
Before issuing its decision on access to the requested records, the Ministry notified nine consultants (the affected parties) who had submitted proposals in response to the RFPs pursuant to section 28(1) of the Act, since their interests might be affected by disclosure of the records at issue. In addition, the Ministry notified an association that represents the interests of most companies in the consulting engineering industry (the intervenor) to seek its views on the application of section 17 to the type of information requested. In doing so, the Ministry noted that this organization has, in the past, expressed concerns regarding the disclosure of this type of information.
Six of the nine affected parties responded to the Ministry and objected to the disclosure of the information pertaining to their companies in the records. The intervenor also submitted representations to the Ministry objecting to the disclosure of this type of information.
The Ministry then denied access to the Summary Chart Construction Scores for the work projects identified in the request under sections 13(1) (advice or recommendations), 17(1)(a)(b) and (c) (third party information), and 18(1)(c) and (d) (economic and other interests) of the Act.
The appellant appealed the Ministry's decision.
During the course of mediation the Ministry confirmed that responsive records were identified only with respect to items 1, 2, 4, and 5 of the appellant’s request. The Ministry indicated that records do not exist for “W.P. 271-96-00-01-02-03 and W.P. 424-98-01 Highway 401 from 0.4 km west of Durham, Northumberland Boundary Road, easterly 5.6 km, Eastern Region” or “W.P. 521-91-00 Highway 401 from Joyceville Road to Highway 32, Eastern Region” (Items 3 and 6 of the request).
Also during mediation, the appellant narrowed his request to access to a portion of the requested records, namely, the Project Supervisor scores. He indicated further that he was no longer seeking the identities of any party. The Project Supervisor score is found under that heading in Records 1 and 2, identified as RFP Summary Charts. It was confirmed with the Ministry that the “Project Supervisor” score is found on the Total Projects Management (the TPM) Scoring Sheets under the “Management Plan” heading at subheading “Contract Admin” (Records 3 and 4). The remaining portions of these records, including the names of the companies for which each score is given and the names (initials) of the Ministry staff who conducted the evaluations, are no longer at issue.
Finally, the appellant believes that records exist for items 3 and 6 of his request.
The mediator assigned to this file sent out her Report of Mediator to the appellant and the Ministry. The Ministry responded to the Report, indicating that it accurately reflects the facts and issues in the appeal as they stood at the time the Report was prepared. However, the Ministry raised two matters that arose subsequent to the issuance of the Report:
• the Ministry indicated that it withdraws its reliance on the mandatory exemption in section 17(1) of the Act; and
• the Ministry conducted one further search for responsive records, and located a record responsive to item 3 of the appellant's request. The Ministry attached a copy of this record to the letter and stated that it continues to rely on the exemptions in sections 13(1) and 18(1)(c) and (d) for this record, as well as those previously located.
Further mediation could not be effected and this appeal was moved on to inquiry. I decided to seek representations from the Ministry, initially. In addition, despite the withdrawal of its section 17(1) claim, I provided the affected parties with an opportunity to address this issue given the mandatory nature of the exemption. I sent the Notice of Inquiry to eight of the affected parties originally identified by the Ministry. One affected party had advised the mediator during mediation that it did not wish to participate further in the appeal. On that basis, I did not notify this party.
Pursuant to section 13 of the Information and Privacy Commissioner (the IPC) "Code of Procedure", the IPC may notify and invite representations from any individual or organization who may be able to present useful information to aid in the disposition of an appeal. In view of the role of the intervenor in representing the interests of companies operating in this particular sector and its previously stated position regarding the types of information at issue in this appeal, I decided to seek its representations on the section 17(1) issue as well.
The Ministry submitted representations in response, as did the intervenor and three of the affected parties who were notified. In addition, the affected party who had indicated during mediation that it did not wish to participate submitted representations in direct response to the issues raised in the Notice of Inquiry, although this document was not sent to it. Based on its representations, however, I am satisfied that it has made itself aware of the issues in this appeal and has had an opportunity to fully present its position on them. Two affected parties contacted this office to advise that they would not be submitting representations, and the remaining three did not respond to the Notice.
All of the parties who responded objected to disclosure of the information at issue. In all cases, the affected parties referred to and adopted the representations submitted by the intervenor. Two of the affected parties submitted additional representations.
After reviewing these submissions, I decided that it was not necessary to hear from the appellant on the substantive issues in the appeal. The Ministry’s representations included affidavits sworn by two of its employees relating to the steps taken to search for and locate responsive records. I sent a Notice of Inquiry to the appellant along with copies of these affidavits and asked that he provide representations on the reasonableness of search issue only.
The appellant submitted representations in response, which I then sent to the Ministry in order to provide it with an opportunity to reply on this issue. The Ministry submitted further affidavits in response.
RECORDS: