While the Act does not expressly preclude access to records by counsel during an appeal before the Commissioner, it sets up a specialized inquiry process for the adjudication of appeals that is quite different from court proceedings.  Courts operate under a presumption that their proceedings are open and that court files are accessible to the public.  For the Ontario courts, this principle is embodied in sections 135 and 137 of the Courts of Justice Act, which state, in part, as follows:

135(1)  Subject to subsection (2) and rules of court, all court hearings shall be open to the public.

(2)        The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

(3)        Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information.

137(1)  On payment of the prescribed fee, a person is entitled to see any document filed in a civil proceeding in a court, unless an Act or an order of the court provides otherwise.

(2)        A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.

(3)        On payment of the prescribed fee, a person is entitled to see any list maintained by a court of civil proceedings commenced or judgments entered.

(4)        On payment of the prescribed fee, a person is entitled to a copy of any document the person is entitled to see.

In contrast, proceedings before the Commissioner are subject to very different considerations, which are laid out, in part, in sections 52 and 55 of the Act.  These sections provide, in part, as follows:

52(1)    The Commissioner may conduct an inquiry to review the head's decision if,

(a)        the Commissioner has not authorized a mediator to conduct an investigation under section 51; or

(b)        the Commissioner has authorized a mediator to conduct an investigation under section 51 but no settlement has been effected.

(2)        The Statutory Powers Procedure Act does not apply to an inquiry under subsection (1).

(3)        The inquiry may be conducted in private.

(4)        In an inquiry, the Commissioner may require to be produced to the Commissioner and may examine any record that is in the custody or under the control of an institution, despite Parts II and III of this Act or any other Act or privilege, and may enter and inspect any premises occupied by an institution for the purposes of the investigation. ...

(13)      The person who requested access to the record, the head of the institution concerned and any affected party shall be given an opportunity to make representations to the Commissioner, but no person is entitled to be present during, to have access to or to comment on representations made to the Commissioner by any other person.

55(1)    The Commissioner or any person acting on behalf of or under the direction of the Commissioner shall not disclose any information that comes to their knowledge in the performance of their powers, duties and functions under this or any other Act.

It is evident from these legislative provisions that different assumptions apply as between court proceedings and appeals before the Commissioner and, in my view, rules that govern court proceedings may not necessarily be the most appropriate ones to follow in appeals before the Commissioner.  The Court operates under a presumption of openness with the capacity to conduct proceedings in camera and to seal court documents where circumstances warrant.  By contrast, the Commissioner’s process, which is called an “inquiry” rather than a “hearing”, operates under a legislative scheme aimed, in part, at protecting against the inappropriate disclosure of the contents of a record during the proceedings.  To this end, the parties are not even entitled as of right to see or hear one another’s representations, which generally entails much less risk of disclosure than allowing access to the records themselves.  In addition, the application of the Statutory Powers Procedure Act, with its various disclosure requirements, is expressly excluded by section 52(2).  The inherent power of courts to impose sanctions for behaviour that amounts to contempt, which is stronger than any enforcement power available to the Commissioner under the Act, may provide a further basis for distinguishing between court processes and an appeal before the Commissioner.

For all of these reasons, I have concluded that court decisions to grant counsel access to the records at issue do not require the Commissioner to follow a similar process and, for the reasons outlined, in my view, there are strong reasons for not doing so in the context of appeals under the Act.

Moreover, as noted by Alberta’s Information and Privacy Commissioner in Order 2000-016, such an approach would not be desirable because of the inequity it would create among appellants:

… [I]t is my view that if I gave the Applicant’s lawyer information regarding the existence of the records and/or provided the Applicant’s lawyer with a copy of the records, it would, in essence, set a precedent and force all future applicants to hire a lawyer if they wanted to gain access to this type of information to prepare their submission. This would render useless section 66(5) [similar to section 52(14) of the Act] which gives applicants, among others, the choice whether to be represented by a lawyer or an agent. Applicants who did not hire a lawyer or could not afford a lawyer, would not gain the same access and would not be able to use this information. I do not think it is appropriate to create this type of inequity between applicants.

I share this concern. 

Even if I were to adopt the approach of the Federal Court of Appeal in Hunter, I would not grant the appellant’s request for access to the records in the context of this inquiry.  I agree with AECL’s submissions on this point.  The Commissioner’s process for sharing representations, which was followed in this case, is intended to ensure procedural fairness while at the same time recognizing the unique confidentiality concerns addressed by the legislature in sections 52 and 55 of the Act.  The appellant’s original request indicated that he was seeking access to “[a]ll documents from Jan. 1, 1995 to present on the use of plutonium/MOX as fuel at Ontario Hydro.”  The records at issue have been described in a number of Notices of Inquiry as well as Order #1 and Order #2 already issued by me in this appeal.  As regards the possible application of section 23, the appellant has indicated that he “… is not requesting disclosure of the technical information that would be of direct assistance to someone seeking to obtain MOX fuel and use it to harm the Canadian public”, but rather of information that “relate[s] to policy issues”.  The information already provided to the appellant has enabled him to make focused arguments concerning the application of section 23 to the policy-related portions of records pertaining to the use of plutonium/MOX by Hydro.

In my view, the information provided to the appellant about the records meets the standard set out by the Court in Hunter, which states that: “[t]he objective in each case is to protect the confidentiality of the information while allowing an intelligent debate on the question of its disclosure”.  I am also satisfied that the sharing of representations that occurred in this case, as mentioned by AECL, has provided the appellant with sufficient information about the arguments of other parties, to which the appellant has had an adequate opportunity to respond.

I have therefore decided not to grant the requester’s counsel access to the records at issue in this inquiry, or to unsevered copies of the representations of other parties, for the purpose of making argument.

PUBLIC INTEREST IN DISCLOSURE

Introduction

The sole remaining issue in this appeal is whether the public interest override at section 23 of the Act applies to the 21 records and parts of records that remain at issue.  Section 23 states:

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]

In order for section 23 to apply, two requirements must be met.  First, there must be a compelling public interest in disclosure; and second, this interest must clearly outweigh the purpose of the exemption (see Order P-1398, upheld on judicial review in Ontario (Ministry of Finance) v. Ontario (Information and Privacy Commissioner) (1999), 118 O.A.C. 108 (C.A.), leave to appeal refused (January 20, 2000), Doc. 27191 (S.C.C.)).  In Order P-1398, former Adjudicator John Higgins stated:

An analysis of section 23 reveals two requirements which must be satisfied in order for it to apply:  (1) there must be a compelling public interest in disclosure, and (2) this compelling public interest must clearly outweigh the purpose of the exemption.

If a compelling public interest is established, it must then be balanced against the purpose of any exemptions which have been found to apply.  Section 23 recognizes that each of the exemptions listed, while serving to protect valid interests, must yield on occasion to the public interest in access to information which has been requested.  An important consideration in this balance is the extent to which denying access to the information is consistent with the purpose of the exemption.

Determination of “compelling”

Order #2

As noted above, AECL made submissions prior to Order #2 regarding the possibility that a compelling public interest in non-disclosure might bring the public interest in disclosure below the threshold of “compelling”.  I addressed this issue as follows in Order #2:

AECL submits that, before determining whether there is a compelling public interest in disclosing records, I must consider whether there is a more compelling competing public interest in not disclosing these records in order to protect the confidentiality of the information contained in them.  AECL states:

[D]isclosure of information related to the [safety] arrangements would be contrary to the purpose of the security arrangements themselves, which by their nature require that confidentiality be maintained.  Although this argument applies equally to the assessment of whether the public interest in disclosure clearly outweighs the purposes of the section 17 and 15(b) exemptions, it is difficult to conclude, in AECL’s submission, that there is a compelling public interest in disclosure of information outlining [security measures], when disclosure would compromise the effectiveness of the measures themselves.  AECL submits that a determination of a compelling public interest in disclosure of information related to [safety measures] would be unreasonable, and respectfully requests that any determination in this regard related to [the Group #1 records] be reconsidered in the context of the final order.

This responsibility to adequately consider the public interest in both disclosure and non-disclosure of records in the context of a section 23 finding was also pointed out by the Divisional Court in Ontario Hydro v. Mitchinson, [1996] O.J. No. 4636.  Before upholding my decision to apply the public interest override in section 23 and order the disclosure of certain peer review reports on the operation of Hydro facilities, the court in that case stated that it needed to first satisfy itself that “.. in deciding as to the existence of a compelling public interest [I took] into account the public interest in protecting the confidentiality of the peer review process”.  Once satisfied that I had, the court upheld my section 23 finding.

In my view, the issue of whether there is a compelling public interest in disclosure of records is highly dependent on context.  Certain key indicators of compellability can be identified, but each fact situation and each individual record must be independently considered and analysed on the basis of argument and evidence presented by the parties.

Later in Order #2, I analysed this issue further:

… [A]s both AECL and the Divisional Court have identified, consideration of the public interest in non-disclosure of records is also an integral part of any determination as to whether there is a compelling public interest in disclosure.  If I determine that there is public interest in disclosing certain records and, based on the particular facts and circumstances of the appeal, the nature of the records and the representations of the parties, and go on to conclude that this public interest appears to be compelling, I must take further steps before making a final determination on the “compelling” aspect of section 23.  Specifically, I must then assess whether there is also a public interest in not disclosing these records, again based on the specific context of the appeal and, if so, whether this competing public interest is strong enough to impact my conclusion about the public interest in disclosing the records.  In other words, is the public interest in non-disclosure strong enough to bring the public interest in disclosure below the threshold of “compelling”?  If it is, then section 23 of the Act is not applicable in the circumstances.

I then referred to the possible impact of the events of September 11, 2001, which took place after I issued Order #1 but prior to Order #2:

… [S]ocieties throughout the world have been forced to grapple with dramatic social change.  Terrorist threats have brought security issues to the forefront of public debate.  Members of the public, in Ontario and elsewhere, have a heightened level of concern for adequate security, and governments charged with responsibility for public safety have identified the need to review and reconsider whether they have found the proper balance between security on the one hand and the long-recognized need for transparency in public administration on the other.  I cannot ignore this fundamental change in the social and political landscape, and it is important that I provide the parties to this appeal with an opportunity to address this issue before reaching my final decision on the application of section 23 in this context. 

Accordingly, I will be issuing a further Supplementary Notice of Inquiry to the parties, asking for further representations on the section 23 issues.  This Notice will include reference to the impact of the events of September 11, 2001 and their aftermath, the passage of the federal Anti-terrorism Act, the tabling of a revised new Public Safety Act by the federal government as recently as last week, and recent jurisprudence on the topic of nuclear safety.

Jurisdictional Objections of the Appellant

In its representations in response to the Supplementary Notice of Inquiry sent out after Order #2, the appellant submits that:

The Supplementary Notice of Inquiry suggests that there may be a compelling public interest in not disclosing the Records, and, therefore, the argument goes that this finding mitigates against the Commissioner’s determination that the disclosure of the records is, in fact, compellingly in the public interest.  There is a further suggestion that the public interest in non-disclosure could lower the level of “public interest” in the Records to something less than a compelling level, and, thereby the Records should not be disclosed.  …

 … [I]t is submitted that s. 23 … plainly reads that once there is a finding that there is a compelling public interest in the disclosure of a record, the Commission[er] can only weigh this compelling public interest against the general purpose of the exemption being overridden.  That is, in our submission, the Commission[er] only has the jurisdiction to weigh the public interest against the policy reason for having the associated exemption in a general (and not a specific) sense.

To put it another way, the legislation only provides that the public interest override found in s. 23 can be used as a “sword” by [the appellant] – and does not provide for it acting as a “shield” by the institution in question.

For the reasons set out above, we submit that the Commission[er] would be committing a jurisdictional error in making a finding that “a public interest in non-disclosure” can vitiate against a situation where a compelling interest in disclosure has already been found to exist.  Disclosure is either in the public interest, or it is not.  In this case, the Commission[er] has already found a compelling public interest in disclosure, and therefore, the Records should be made public.

In other words, the appellant submits that I am precluded from considering the public interest in non-disclosure in determining whether the public interest in disclosure is “compelling” for two reasons:  (1) the language and structure of section 23 do not permit me to do so, and (2) I have already determined in Order #1 that the public interest in some of the records at issue is “compelling”.  I will deal with these two arguments in turn.

In my view, the appellant’s first argument cannot be sustained in light of the Divisional Court’s ruling on my Order P-1190 in Ontario Hydro v. Mitchinson.  As noted in the discussion of that case in the extract from Order #2 reproduced above, the Court followed the exact approach now opposed by the appellant in assessing my decision that there was a compelling public interest in the disclosure of nuclear-safety related peer review information.  Before upholding my decision, the Court wanted to be satisfied that “.. in deciding as to the existence of a compelling public interest [I had taken] into account the public interest in protecting the confidentiality of the peer review process”.  As framed by the Court, this consideration of the possible public interest in non-disclosure goes to the issue of whether the public interest in disclosure is compelling, rather than the second aspect to be considered under section 23, namely whether the compelling public interest, once established, clearly outweighs the purpose of any applicable exemption.

This approach to section 23 also accords with the intention of the legislature to permit the disclosure of exempt material to serve the public interest.  If there is a public interest in non-disclosure that, while not related to the “purpose of the exemption” as canvassed in the second part of section 23, is nevertheless strong enough to indicate that disclosure would have a serious adverse impact on the public interest, this would, in my view, demonstrate that any public interest in disclosure that might exist would not be “compelling”.

The appellant’s second argument, relating to my previous finding that there is a compelling public interest in the disclosure of some of the records, appears to rely on an unstated view that I am “functus officio” in that regard.  I disagree.  Mr. Justice Sopinka discussed the application of this principle to administrative tribunals in his majority reasons in Chandler v. Alberta Assn. of Architects (1989), 62 D.L.R. (4th) 577 (S.C.C.).  He states that “… once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal changed its mind, made an error within jurisdiction or because there has been a change of circumstances” [my emphasis].  Justice Sopinka also found that, because decisions of administrative tribunals are generally subject only to judicial review rather than the broader remedy of an appeal, the application of functus officio to tribunals should be “more flexible and less formalistic” than its application to courts.

In my view, because I have not made a final determination on the application of section 23 in this appeal, the functus officio principle does not apply and I continue to have jurisdiction to consider the evidence and submissions of the parties and to render a decision regarding the potential application of section 23 to all records that remain at issue.

Appellant’s Submissions on Burden of Proof re:  Public Interest in Non-Disclosure

The appellant further submits that:

“[I]n the alternative, if the Commission[er] is entitled to find that a compelling public interest in non-disclosure can defeat a compelling public interest in disclosure of a record, it is our submission that there must be a heavy onus on Ontario Hydro to establish this point, especially in light of the fact that Ontario Hydro is the only party in this appeal that is able to adduce this evidence.

As the Commission[er] is aware, and as reflected in the original Notice of Inquiry, when a requester is relying on s. 23 of [the Act] to support the disclosure of certain documents, there is a rigorous process that s/he must follow in laying a foundation for disclosure. It therefore follows that, if an institution seeks to avoid disclosure by virtue of s. 23, it, too, should have to meet the heavy burden imposed by [the Act], failing which, disclosure should be ordered.

The Act is silent as to who bears the burden of proof in respect of section 23. 

The burden of proof in law generally is that a person who asserts a position must establish it.  However, where an appellant has raised the application of section 23 to a record, it is my view that the burden of proof cannot rest wholly on the appellant, where he or she has not had the benefit of reviewing the requested record before making submissions in support of his or her contention that section 23 applies.  To find otherwise would be to impose an onus that could seldom, if ever, be met by an appellant (Order P-1190). 

However, it is also my view that the Act does not impose a burden on the parties resisting disclosure to disprove the application of section 23 in the circumstances of a particular appeal. 

In my view, no individual party bears the burden of proof under section 23.  The question that needs to be addressed is more accurately characterized as whether, on balance, section 23 has the effect of requiring disclosure.  This determination must be made on the basis of the facts and circumstances of a specific appeal, and the evidence and arguments made by the various parties regarding its application to particular records.

Is there a compelling public interest in disclosure in this case?

Introduction

In Order #1, I reached a preliminary conclusion that there was a compelling public interest in the disclosure of 23 records or portions thereof.  In Order #2, I determined that six of these 23 records were in fact duplicates and should be removed from the scope of the appeal.  As a result, the following records or portions of records identified in Order #1 as possibly subject to section 23 remain at issue:

A number of previous orders have discussed the issue of whether there is a compelling public interest in issues regarding nuclear safety.  In Order P-1552, former Adjudicator Miller had to determine whether there was a compelling public interest in disclosing records relating to nuclear safety.  In making her decision, she summarized a number of the relevant orders of this Office as follows:

In Order 270, which involved a request for agendas and minutes of the Senior Ontario Hydro/Atomic Energy of Canada Limited Technical Information Committee (SOATIC), which were denied by Hydro under section 17(1) of the Act, former Commissioner Tom Wright discussed the issue of nuclear safety and section 23 when considering whether there was a compelling public interest in disclosure of nuclear safety related information.  He stated:

In my view, there is a need for all members of the public to know that any safety issues related to the use of nuclear energy which may exist are being properly addressed by the institution [Hydro] and others involved in the nuclear industry.  This is in no way to suggest that the institution is not properly carrying out its mandate in this area.  In this appeal, disclosure of the information could have the effect of providing assurances to the public that the institution and others are aware of safety related issues and that action is being taken.  In the case of nuclear energy, perhaps unlike any other area, the potential consequences of inaction are enormous.

I believe that the institution, with the assistance and participation of others, has been entrusted with the task of protecting the safety of all members of the public.  Accordingly, certain information, almost by its very nature, should generally be publicly available.

In view of the above, it is my opinion that there is a compelling public interest in the disclosure of nuclear safety related information.

Assistant Commissioner Tom Mitchinson quoted from Order 270 and made a similar finding in Order P-1190 which involved a request for all peer evaluation reports conducted on nuclear power plants operated by Ontario Hydro.

Former Assistant Commissioner Irwin Glasberg also dealt with the issue of nuclear safety in Order P-901, which also involved Ontario Hydro.  In that case, he found that records prepared by a working group involved in nuclear emergency planning qualified for exemption under section 12 of the Act (Cabinet records), which is not subject to the section 23 public interest override.  However, he went on to state that:

Were it not for the fact that the records at issue are subject to the Cabinet records exemption, I would have had no hesitation in finding that there exists a compelling public interest in the disclosure of these documents which clearly outweighs the purposes of the exemptions found in the Act.

(See also Order P-956).

 I agree with these comments, and find that there is a compelling public interest in disclosure of records concerning nuclear safety.  In my view, this interest extends to information about the storage and disposal of nuclear waste. The question which remains is whether this compelling public interest is sufficient to clearly outweigh the purpose of the section 15 exemption in respect of the disclosure of these records.

Order P-1190 involved a request to Ontario Hydro for access to certain peer evaluation reports.  After finding that the section 18(1)(c) exemption applied to these reports, I went on to determine whether there was a compelling public interest in their disclosure.  In finding that there was, I stated:

It is clear that public concerns regarding the safety of nuclear facilities was the impetus behind the creation of Hydro’s Peer Evaluation Program.  In my view, it is not possible to allay these concerns by merely advising the public that reviews of nuclear operations are conducted against the highest possible standards.  This simply does not provide enough information for the public to assess the adequacy of the program in meeting its objectives.  I am unable to accept Hydro’s position that the results of the Peer Evaluation Program should not be disclosed to the very public whose concerns about nuclear safety the Program was designed to allay.

As far as Hydro’s submissions about confidentiality and the openness of its employees are concerned, in my view, it is in the interests of both Hydro and the public to ensure that Hydro continues to receive frank and open input and to report on nuclear safety issues in the most fulsome manner possible.  This enables Hydro to represent itself in its commercial ventures as operating nuclear plants as closely as possible to the highest standards of excellence.

As noted earlier, my decision in Order P-1190 was reviewed and upheld by the Divisional Court, and leave to appeal to the Ontario Court of Appeal was denied.

In Order P-1805, Senior Adjudicator Goodis also reviewed the application of the public interest override to records dealing with nuclear safety.  He stated as follows:

In my view, for reasons similar to those of the former Commissioner and the Assistant Commissioner in Orders P-270 and P-1190, there is a compelling public interest in the disclosure of the records at issue in this case.  From the perspective of protecting public health and safety and the natural environment, the public has a compelling interest in scrutinizing the safety related activities of Hydro in respect of its nuclear facilities, especially in light of the enormous consequences of inaction.  The public’s compelling interest extends to ensuring bureaucratic accountability in these areas, engaging in informed discussion and debate, and exercising its democratic rights at the ballot box in order to contribute to the direction that public policy in the nuclear energy arena will take.

That being said, I also find that not all records which touch on matters of nuclear safety are automatically included in this category.  In my view, there is not a compelling public interest in the disclosure of records that merely contain or reflect general statements concerning the need for safety; records that include comments on safety-related issues involving other countries (eg. Records 124, 153, 180 and 181); or records which deal generally with an analysis of plutonium/MOX fuel and a comparison of its qualities.  

Record 34 includes generic plans for constructing a MOX fuel fabrication plant.  In my view, this record is primarily technical in nature, with the exception of most of the Table of Contents, the section entitled “Introduction”, and two general safety-related portions.  With the exception of these parts of Record 34, I find that the information in the rest of this record raises the same concerns as the records in the preceding paragraph, because it could assist individuals or groups intending to commit acts of terrorism or sabotage.

Other Category I records set out detailed information about the handling and transport of MOX fuel, or about security measures to be used during transport or otherwise.  I find that all of this information would be “of direct assistance to someone seeking to obtain MOX fuel and use it to harm the Canadian public”, or could otherwise assist individuals or groups intending to commit acts of terrorism or sabotage.  The records or portions that fall into this category are portions of Records 49, 51, 62, 63, 113, 133 and 213.

Record 49 also includes information relating to the potential for blackmail, bribery or sabotage;  and Records 81 and 102 include the names of individuals who are experts in the field and their particular assignments regarding the possible use of MOX fuel.  As noted above, I find that the public interest in non-disclosure of this type of information is significant, and sufficient in the circumstances of this appeal to bring the public interest in disclosure of records containing this information below the threshold of “compelling”.

The Category II records contain information relating to nuclear safety, and consist of information and analysis that raise a strong public interest in disclosure.  As stated earlier in this order, unless I was persuaded that there was a public interest in non-disclosure of this type of information sufficient to bring the public interest in disclosure below the threshold of “compelling”, I would find that there was a compelling public interest in disclosing this type of information.  As far as Category II records are concerned, I find that the public interest in non-disclosure is not sufficient to reduce the public interest in disclosure below the level of “compelling”. 

Based on the discussion from Order #1 outlined above, I have concluded that the public interest in disclosure of this information is compelling because it “rouses strong interest or attention”, a definition of “compelling” that was adopted by former Adjudicator Higgins in Order P-1398 and upheld by the Ontario Court of Appeal in Ontario (Ministry of Finance), supra.  The following records or portions fall within the categorization:  all of remaining portions of Records 66, 71, 108, 245 and 265 as described in Appendix A, and portions of Records 31, 34, 47, 49, 51, 62, 63, 81, 102, 113, 133, 164 and 213.

Category III

In addition, I find that, on further analysis, there are three records that contain information that does not raise particular security concerns, but is nonetheless not sufficiently linked to nuclear safety issues or policy issues to bring them within the scope of “compelling” for the purposes of the first part of the section 23 test.  These Category III records are:  the remaining portions of Record 56, and portions of Records 63 and 81.

Does the compelling public interest in disclosure of Category II records clearly outweigh the purpose of the exemptions that have been found to apply?

I will now consider whether the compelling public interest in disclosing the Category B records clearly outweighs any of the exemption claims I have found to apply to these records or portions of records.  The relevant exemption claims for these records are found at section 15(b), 17(1)(a) and 18(1)(a) of the Act.

Section 15(b)

Section 15 (b) reads as follows:

A head may refuse to disclose a record where the disclosure could reasonably be expected to,

(b)        reveal information received in confidence from another government or its agencies by an institution;

and shall not disclose any such record without the prior approval of the Executive Council.

As I stated in Order #1, the purpose of the section 15 exemption has been set out in previous orders as follows:

Section 15 of the Act recognizes that the Ontario government will create and receive records in the course of its relations with other governments, and that individual institutions should have discretion to refuse to disclose records where it is expected that disclosure would result in any of the consequences enumerated in this section.  … Similarly [to section 15(a)], the purpose of section 15(b) is to allow the Ontario government to assure other governments that it is able and prepared to receive information in confidence, thereby building the trust required to conduct affairs of mutual concern.  (see Orders P-1202 and P-1398 (upheld on judicial review in Ontario (Ministry of Finance) v. Ontario (Information and Privacy Commissioner), [1999] O.J. No. 488 (C.A.)).

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;

A head may refuse to disclose a record that contains,

(a)        trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Ontario or an institution and has monetary value or potential monetary value;

As noted in Order #1, the report titled Public Government for Private People:  The Report of the Commission on Freedom of Information and Individual Privacy 1980, vol. 2 (Toronto:  Queen’s Printer, 1980) (the Williams Commission Report) provides the following description of the rationale for including a “valuable government information” exemption in the Act:

In our view, the commercially valuable information of institutions such as this should be exempt from the general rule of public access to the same extent that similar information of non-governmental organizations is protected under the statute. . .  Government sponsored research is sometimes undertaken with the intention of developing expertise or scientific innovations which can be exploited.  The activities of the Ontario Research Foundation, for example, are a primary illustration of this phenomenon.  We are not opposed in principle to the sale of such expertise or the fruits of research in an attempt to recover the value of the public investments which created it.  Moreover, there are situations in which government agencies compete with the private sector in providing services to other governmental institutions . . . on a charge back basis. . . . In our view, the effectiveness of this kind of experimentation with service delivery should not be impaired by requiring such governmental organizations to disclose their trade secrets developed in the course of their work to their competitors under the proposed freedom of information law.

In my view, the purpose of the exemption at section 18(1)(a) is similar to the purpose of section 17, that is, to protect the commercially valuable information of government institutions.

Department of Justice – Canada In the circumstances of this case, the public interest in protecting the business or economic interests of public organizations is clearly outweighed by the compelling public interest in disclosure of these records for the purposes of scrutinizing the safety related activities of Hydro in respect of its nuclear facilities, in the interests of protecting public health and safety and protecting the natural environment.  Therefore, I find that section 23 would apply to override the application of section 18.

Balancing the compelling public interest in disclosure against the purposes of the exemptions In my view … there is a compelling public interest in the disclosure of the records at issue in this case.  From the perspective of protecting public health and safety and the natural environment, the public has a compelling interest in scrutinizing the safety related activities of Hydro in respect of its nuclear facilities, especially in light of the enormous consequences of inaction.  The public’s compelling interest extends to ensuring bureaucratic accountability in these areas, engaging in informed discussion and debate, and exercising its democratic rights at the ballot box in order to contribute to the direction that public policy in the nuclear energy arena will take.

As far as the Category II information is concerned, I find that the compelling public interest in their disclosure clearly outweighs the purposes of allowing the Ontario government to assure other governments that it is able and prepared to receive information in confidence (section 15(b)), protecting third party information supplied to an institution in confidence, so that the third party's interests will not be harmed by disclosure (section 17(1)(a)), and protecting the commercially valuable information of government institutions.  In my view, the information for which I have identified a compelling public interest is, in any event, not strongly related to any of these purposes.

ORDER:

1.                I order Hydro to disclose all of Records 66, 71, 108, 245 and 265 that remain at issue, and portions of Records 31, 34, 47, 49, 51, 62, 63, 81, 102, 113, 133, 164 and 213, to the appellant by December 27, 2002 but not before December 19, 2002.  I have attached a copy of these records with the copy of this order sent to Hydro that highlights in yellow the portions that should be disclosed in compliance with this provision.

2.                I uphold Hydro’s decision to deny access to Records 1 and 36, the remaining portions of Record 56, and all portions of Records 31, 34, 47, 49, 51, 62, 63, 81, 102, 113, 133,164 and 213 not covered by Provision 1 of this order.  These portions are highlighted in blue on the attached copy of the records sent to Hydro with this order.

3.                In order to verify compliance with this order, I reserve the right to require Hydro to provide me with a copy of the records disclosed to the appellant pursuant to Provision 1.

Original Signed By:                                                                                November 22, 2002                       

Tom Mitchinson