Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The Ministry of the Attorney General (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for access to: “…records of the legal cost as of February 28th, 2002, of the defense of all Government officials, including the Premier, from actual or potential legal actions arising from the death of [a named individual] at Ipperwash Provincial Park. I am seeking the costs paid both by the Government of Ontario, and by the Government’s insurer.” The Ministry responded as follows: …we wish to advise you that Management Board Secretariat may have custody and control of records relating to the costs paid by the Government’s insurer in the defense of Government officials, including the Premier, from actual or potential legal actions arising from the death of [a named individual]at Ipperwash Provincial Park. Therefore, pursuant to section 25 of the Act, we have forwarded this portion of your request to … Management Board Secretariat. Management Board Secretariat (MBS) issued a decision in response to the transferred request. MBS advised the requester that it had located one responsive record that contained a figure representing the legal costs, including disbursements, paid by the government’s insurer in the lawsuit identified by the requester for the period September 7, 1995 to October 10, 2001. MBS also stated that it had been unable to obtain supplementary information from the insurer for the period October 11, 2001 to February 28, 2002 (the date of the request) because the insurer refused to provide this information to MBS. MBS denied access to the record, claiming that it qualified for exemption under section 17(1)(b) (third party information) and section 19 (solicitorclient privilege) of the Act. The requester (now the appellant) appealed MBS’ decision. During the course of mediation, MBS clarified its position. MBS stated that it was unable to obtain the missing information from the insurer because records containing this information were not in its custody or under its control. As far as the existing record was concerned, MBS maintained that only some of its content was responsive to the request. The appellant objected to both of these positions, so “custody or control” and “responsiveness” were added as issues in the appeal. Mediation was not successful, so the appeal was transferred to the adjudication stage. I sent a Notice of Inquiry initially to MBS, as well as the insurer and an insurance adjuster (who I will refer to collectively as “the insurer”). The Notice outlined the facts and issues in the appeal and requested written representations. The insurer was asked to address only the section 17(1)(b) and the “custody or control” issues. I received representations from MBS and the insurer. - 2 - [IPC Order PO-2128/March 18, 2003] In its representations, the insurer states that the “custody or control” issue is now resolved because, after receiving the Notice of Inquiry, it provided MBS with the information previously withheld. The insurer also pointed out that some of the entries in the record initially identified by MBS were incorrectly designated or posted, and attached a new replacement record. Its counsel explains: We have reviewed the [revised] claims documents with our clients at great length to ensure that all costs and disbursements paid have been included in the revised document. Accordingly, we would ask you to replace the claims print-out previously forwarded with this new claims summary, which has been confirmed as accurate by [the insurer]. On the basis of this information provided by the insurer, I concluded that the “custody or control” question was no longer at issue, and that the responsive record is now the revised claims summary document submitted to MBS and to me by the insurer. I provided the appellant with a copy of the letter from the insurer that explains the relationship between the originally identified record and the new record. He did not dispute my conclusion that the “custody or control” issue is resolved, and I will not address it further in this order. The insurer also refers in its representations to sections 17(1)(a) and (c), not originally identified by MBS. Because section 17 is a mandatory exemption, I added these two sections to the Notice of Inquiry. I then sent the revised Notice of Inquiry to the appellant, together with a copy of the representations submitted by MBS and the insurer. The appellant provided representations in response, which identified the possible application of the public interest override in section 23 of the Act. I then provided MBS and the insurer with a copy of the appellant’s representations and an opportunity to reply. MBS initially advised me that it would not be submitting reply representations. The insurer did provide reply representations, which were shared with the appellant. The appellant provided a final set of representations in response. MBS subsequently provided submissions on the appellant’s section 23 arguments. However, in light of my findings in this order, it is not necessary for these submissions to be considered or shared with the appellant. RECORD: The record at issue in this appeal, as clarified by the insurer during the course of the inquiry, is a 9-page claims summary document. It lists a number of “vendors” and costs paid by the insurer for various services associated with the identified legal action up to February 28, 2002 (the date of the request). The total cost figure appears on page 9 of the record. - 3 - [IPC Order PO-2128/March 18, 2003] DISCUSSION: SCOPE OF THE REQUEST MBS takes the position that only the total cost figure appearing on page 9 of the record is responsive to the appellant’s request. The insurer supports MBS’ position on this issue. MBS submits: The remaining information contained in the record [other than the total cost figure] is essentially a list of amounts paid to particular named vendors together with dates and check numbers. The requester did not seek this other remaining information; only the cost of the defence was requested. When added together, the individual legal costs equal the total cost that MBS submits is responsive to the request. Since the names of the lawyers representing the defendants in the action are publicly known, extending this request to amounts paid to named law firms, for example, over a particular period of time goes well beyond the request for the ‘cost’ simpliciter. This information is qualitatively different than the compilation of the legal cost and extends well beyond the plain words of the request. The requester did not seek the names of the vendors or the itemization of the costs. In addition, in his letter, the appellant provided specific directions to MBS that indicated what information he expected to receive: I would ask that in fulfilling this request, that the Cabinet Office refer to FOI Appeals No. PA-000103-1 (Request #000005) to find acceptable search methods (financial rather than legal) to avoid having access to these records denied under section 19 of the Act. MBS consulted with Cabinet Office in respect of the appeal identified by the appellant. Cabinet Office informed the Ministry that the appeal referred to by the appellant had been resolved when Cabinet Office disclosed one amount reflecting the total cost relating to the [former] Premier’s defense in the same action. In that case the request was for ‘legal cost’ incurred to date; therefore, MBS is entitled to accept the requester’s direction and interpret the request in the same fashion. The appellant set out his request very carefully. He did not seek an itemization of legal costs; rather, the appellant clearly requested the legal cost paid by the government’s insurer in a particular action. Any other information contained in the record would exceed the appellant’s request; it would not reflect his request for what the government’s insurer had paid up to the date indicated for the action. Under the Act, MBS is entitled to rely on the plain wording of the request where, as here, it is unambiguous. On May 3, 2002 MBS provided the appellant with a decision letter in which it clearly - 4 - [IPC Order PO-2128/March 18, 2003] described the responsive record at issue. The letter stated that MBS [sic]: We understood that you are requesting the total legal costs paid by the government’s insurer during the specified time frame. The requester did not contact MBS after receiving the decision letter to advise that he was requesting an itemization of the costs. Had he done so, MBS could have addressed the issue in a timely fashion. Indeed, to date the appellant has not advised MBS that he disagrees with MBS’ interpretation of his request. It is respectfully submitted that it is unfair to institutions to allow requesters to effectively extend the purview of a request in appeal months after they have received a decision letter which clearly describes the institution’s reasonable and credible interpretation of the request. The appellant is not without options; he may submit a new request for the information he now believes he would like to obtain. In contrast, to require the ministry to extend the purview of the request at the appeal stage significantly prejudices the ministry because this “new” request may require that the ministry notify numerous affected parties in order to satisfy its obligations under the Act. Moreover, since the additional records include legal account information, the ministry may want to claim exemptions like the ones claimed for the total amount, as well as others. In responding to MBS’ representations on this issue, the appellant made the following brief submissions: I believe that it is clear that my intention in my request was to encourage MBS to use all means possible to find the information that I was seeking. In that decision that was referenced, FOI Appeal No. PA-000103-1 (Request #000005), Cabinet Office agreed that it was acceptable for the disclosure of the figure sought, if the documents were obtained in accounting records, instead of in legal documents. Since I have no reason to expect that the total legal cost is going to be available in a single figure, I believe it should be possible for institutions to be required at times to submit a series of figures that will provide an indication of the total cost. The appellant makes it clear in his representations that he wants access to information comparable to the information he received through mediation with Cabinet Office in his previous similar appeal. As far as I can determine, the information provided in that case was the total cost figure covering all legal services provided by the government in relation to the former Premier’s defence in the same legal action that is the subject of the current appeal. At the time of submitting his request, the appellant, quite understandably, was not in a position to know whether there was one record that contained the total cost figure for insured legal services. However, based on the wording of the request and the appellant’s representations in response to MBS’ submissions during this inquiry, it is reasonable to conclude that if a record did include this total cost figure, that figure would equate to the type of information provided to the appellant in Appeal PA-000103-1, and would satisfy his request. In my view, the other statements by the - 5 - [IPC Order PO-2128/March 18, 2003] appellant were made simply to cover the possibility that a total cost figure did not appear in any responsive record, and that a series of individual cost figures would have to be provided in order to respond to his request for the “total cost”. Having considered the positions of the parties, I find that the figure on page 9 of the record, which represents the total cost of legal services provided by the insurer for the time frame covered by the appellant’s request, is the only responsive portion of the record. THIRD PARTY COMMERCIAL INFORMATION The relevant portions of section 17 of the Act read as follows: 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 person, or organization; (b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied; (c) result in undue loss or gain to any person, group, committee or financial institution or agency; For a record to qualify for exemption under sections 17(1)(a), (b) or (c), MBS and/or the insurer must satisfy each part of the following three-part test: 1. the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and 2. the information must have been supplied to MBS in confidence, either implicitly or explicitly; and 3. the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in (a), (b) or (c) of subsection 17(1) will occur. (Orders 36, P-373, M-29 and M-37) - 6 - [IPC Order PO-2128/March 18, 2003] Part 1: Type of Information Past orders have defined “commercial” and “financial” information as follows: Commercial Information Commercial information is information which relates solely to the buying, selling or exchange of merchandise or services. The term "commercial" information can apply to both profit-making enterprises and non-profit organizations, and has equal application to both large and small enterprises. (Order P-493) Financial Information The term refers to information relating to money and its use or distribution and must contain or refer to specific data. Examples include cost accounting method, pricing practices, profit and loss data, overhead and operating costs. (Orders P-47, P-87, P-113, P-228, P-295 and P-394) The insurer submits that the record contains both commercial and financial information. MBS agrees, and submits: The information at issue is, on its face, financial and commercial information which reflects the cost of the legal services rendered by legal counsel to the government’s insurer. The record reveals the total amount the insurer has paid for legal services provided by counsel retained by the insurer in respect of the government’s defence in the [named individual] action. As the information relates directly to the purchase of services, it falls within the scope of either financial or commercial information, as defined by [the Commissioner]. The appellant’s representations do not address Part 1. I accept MBS’ position, and find that the total cost figure on page 9 of the record qualifies as both commercial information and financial information, thereby satisfying the first part of the section 17(1) test. Part 2: Supplied in Confidence Supplied The insurer and MBS both submit that the information was supplied to MBS. MBS explains: … MBS obtained the information by accessing a financial database created and maintained by the government’s insurer and insurance adjuster. The information so obtained was not altered in any way by the insurance adjuster; therefore, the information at issue in the record was actually supplied by the insurer. Furthermore, the fact that MBS obtained the record by accessing the insurance - 7 - [IPC Order PO-2128/March 18, 2003] adjuster’s database does not mean the record was not “supplied”. This fact situation is unlike situations where an institution gathers the information itself, as in PO-1983. In this case, the Ministry was provided electronic access to the database as an administrative convenience; rather than receiving the information contained in the database in printed form. The insurer elaborates: The Province played no role in the gathering of the information. This was contained in communications between the law firms retained in the defence of the civil action and the client, the Insurer. … … [the insurer and insurance adjuster] allowed the Crown to access claims information, which was downloaded from databases or reports in the [insurance adjuster’s] database. … The appellant disagrees, and submits: The provisions in the Act are meant to protect the rights of a true third party, but in this situation the insurer is an agent of the government, so the third party protection should not apply. Information about the litigation in which they are involved belongs as much to the government - if not more - than to the insurer. In my view, the information at issue should not qualify for the Section 17 exemption, as it was not strictly supplied to the government, according to the Act. In response to this point, the insurer submits: The Insurer submits that the suggestion that it is an “agent” of the government and “not a true third party” are patently absurd. The Insurer does not have the right or the power to act on behalf of the Crown in a binding capacity. The relationship between the Insurer and the Crown is a purely contractual one and subject to specified terms and conditions that are stipulated in the Policy of Insurance. The question of whether the total cost figure appearing on page 9 of the record was “supplied” is a straightforward issue in the particularly circumstances of this appeal. There can be no dispute that the figure appears on a hardcopy record that was provided to both MBS and to me during the course of this inquiry. In my view, that is sufficient to establish that it was “supplied” by the insurer for the purposes of Part 2 of the section 17 test. The fact that MBS and the insurer may have an arrangement that permits MBS staff to electronically access information stored on the insurer’s billings and claims database has no bearing on a determination of the “supplied” issue in this appeal. It is also not necessary for me to decide whether the insurer is acting as an agent of MBS, as suggested by the appellant. - 8 - [IPC Order PO-2128/March 18, 2003] In Confidence In order to establish the confidentiality component of Part 2, MBS and the insurer must demonstrate a reasonable expectation of confidentiality on the part of the insurer at the time the information was supplied. It is not sufficient that the insurer have an expectation of confidentiality; the expectation must have been reasonable, and must have an objective basis (Order M-169). In determining whether an expectation of confidentiality is based on reasonable and objective grounds, it is necessary to consider all relevant circumstances, including whether the information was: (1) Communicated to MBS on the basis that it was confidential and that it was to be kept confidential. (2) Treated consistently in a manner that indicates a concern for its protection from disclosure by the insurer prior to being communicated to MBS. 3) Not otherwise disclosed or available from sources to which the public has access. (4) Prepared for a purpose which would not entail disclosure. (Order P-561) The insurer submits: … The Crown was allowed access to the database on the basis that the claims data was confidential and was to be kept confidential. Access was strictly limited to the Insurance Risk Management Dept., (including MBS) and insurance managers and buyers for the Government of Ontario. The purpose of accessing this information was for the Ministry’s budgeting purposes, estimating future premium costs, negotiating policies, etc. This was obviously a purpose that would not entail disclosure to the public. Within [the insurer], access to the database was limited to senior claims staff and strictly password protected. This would have amounted to less than ten senior claims examiners and executives. The separate branches of [the insurer] were unable to gain access and only direct account handles and very few support staff (all of which were monitored closely through a password system) were allowed access. The Insurer respectfully submits that the information was never disclosed or available from any sources to which the public has access and was, in fact, treated as commercial and financial information of the highest sensitivity. - 9 - [IPC Order PO-2128/March 18, 2003] The Insurer further submits that it had a reasonable expectation of confidentiality in providing the information. It would not have allowed MBS or any other Crown office access to the data if there were any possibility of its disclosure to a third party, pursuant to a request under [the Act]. The objective basis of this belief is the fact that disclosure of the data would undermine the commercial and financial interests of both the Insurer and the Crown. MBS supports the insurer on this issue: The information in the record was clearly supplied in confidence to MBS. The fact that MBS treats this information as solicitor-client privileged information informs the analysis as to the intention to keep the information confidential. Access to the database is restricted to the insurer, the insurance adjuster and the government of Ontario. The insurer has advised MBS that the cost information reflected in this record is confidential financial information belonging to the insurer. Furthermore, MBS has consistently treated the information in a confidential manner as it considers the information to be subject to solicitor-client privilege: MBS has restricted access to the information within the Ministry to a small group of employees who require the information in order to perform their job duties. Again, in my view, the submissions provided by the insurer and MBS do not speak to the particular circumstance of this appeal, which involves a hardcopy record supplied to MBS by the insurer. As noted earlier, during the course of this inquiry the insurer provided me with a letter attaching an amended record. These documents were also provided to MBS. The insurer states in the letter that the record is being provided “in strictest confidence and must not be disclosed”, and goes on to explain that: It is [the insurer’s] position that this information was provided to the Management Board Secretariat in the strictest of confidence and subject to solicitor-client privilege. It was [the insurer’s] clear understanding that this data would be protected by the exemptions contained in Section 17 and 19 of [the Act]. Based on the contents of this letter, and given the arrangements outlined in the representations provided by both MBS and the insurer for the sharing of other similar information through the insurer’s billings and claims database, I accept that MBS and the insurer had a reasonable and objectively held expectation that the total cost figure on page 9 of the record would be received and treated by MBS on a confidential basis. Accordingly, I find that the total cost figure on page 9 of the record was supplied to MBS in confidence, thereby satisfying Part 2 of the section 17(1) test. - 10 - [IPC Order PO-2128/March 18, 2003] Part 3: Harms Introduction To discharge the burden of proof under Part 3, the parties resisting disclosure (MBS and the insurer in this case) must present evidence that is detailed and convincing, and must describe a set of facts and circumstances that could lead to a reasonable expectation that one or more of the harms described in section 17(1) would occur if the information was disclosed (Order P-373). The words “could reasonably be expected to” appear in the preamble of section 17(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, including section 17(1), in order to establish that the particular harm in question “could reasonably be expected” to result from disclosure, the parties with the burden of proof must provide “detailed and convincing” evidence to establish a “reasonable expectation of probable harm” (see Order P-373, upheld by the Ontario Court of Appeal 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.)). (See also Orders PO-1745 and PO-1747) Section 17(1)(a): Prejudice to competitive position MBS’ only representation on section 17(1)(a) consists of a statement accepting and adopting the insurer’s position. The insurer submits that: … allowing public disclosure of gross figures based on its financial information relating to claims experience would essentially give third parties tendering on provincial insurance contracts “insider information” that would undermine the contractual negotiating process. In addition, its disclosure would potentially impact on the sale of insurance products by [the insurer], specifically if it appears that the Insurer is unable to maintain the confidentiality of client’s claims data. In my view, the insurer has failed to provide the type of detailed and convincing evidence necessary to establish a reasonable expectation of significant prejudice to its competitive position should the total cost figure on page 9 of the record be disclosed. Although different considerations might apply to the disclosure of more detailed information contained in the insurer’s billing and claims database, I am only dealing here with the single aggregate figure on page 9. This figure reflects total costs associated with a number of different clients and their counsel in a particular case and is simply too general in nature and too far removed from the actual claims experience to create any reasonable probability that its disclosure could - 11 - [IPC Order PO-2128/March 18, 2003] significantly prejudice competition for future government contracts or other insurance business offered by the insurer. Therefore, I find that the total cost figure on page 9 of the record does not satisfy the third requirement of section 17(1)(a). Because all three requirements must be established, I find that the total cost figure does not qualify for exemption under section 17(1)(a). Section 17(1)(b): Similar information no longer supplied MBS takes the position that disclosure of the total cost figure on page 9 of the record could reasonably be expected to result in similar information no longer being supplied to MBS by the insurer. In support of this position, MBS submits: The insurer has also communicated to MBS and [the Commissioner] that, should the information contained in the record be disclosed, it can no longer continue to provide similar information to MBS in the future. MBS submits that it is in the public interest that it continue to receive the insurer’s claims management information. MBS requires the information in order to manage its insurance and risk management program. The detailed loss experience outlined in the information is necessary for three reasons. Firstly, it allows the province to accurately identify significant liability exposures and thereby develop and maintain appropriate risk control programs. Secondly, it assists the province to estimate and assess the appropriateness of future insurance premiums and programs. Thirdly, it also allows the province to track any limits on its insurance coverage, thereby allowing the province to plan for future cost pressures. MBS respectfully submits that if the Crown were to be denied access to claims management information, it would prevent the government from promptly identifying liability exposures as they emerge, thereby delaying the government’s development of risk control programs. MBS submits that the province must, in the public interest, develop comprehensive risk management strategies in order to minimize lawsuits against the Crown and the circumstances that give rise to lawsuits. In this regard, the public interest is served in two ways: effective risk control programs prevent harm before it happens and assist the province to negotiate lower insurance premiums with prospective insurers. MBS also submits that when it seeks to renew its insurance policies, the government must have detailed knowledge of its claims loss history in order to assess the appropriateness of premiums quoted by prospective insurers. Without this background information, the Crown would be at a significant disadvantage during negotiations, and could pay higher premiums than are warranted by past loss experience. Further, the Ministry must also be able to demonstrate to prospective insurers that it has put into place an effective risk management program. Prospective insurers will require the Crown to demonstrate how we - 12 - [IPC Order PO-2128/March 18, 2003] have identified and addressed previous significant claims. If the government were to be unable to provide prospective insurance companies with this information, MBS submits that insurers would decline to provide quotes on future government insurance business. In addition, since there are few insurers in the marketplace that can service the Province’s insurance needs, any reduction in the number of insurers willing to quote on required insurance is of serious concern to the Province. MBS submits that it must, if it is to serve the interests of the taxpayers of Ontario, obtain as many competitive quotes as possible in any future insurance tender. In the scenarios referred to above, MBS submits that it is clear that MBS requires the detailed claims loss information supplied by the insurer to make sound business decisions. For this reason, MRS respectfully refers the Assistant Commissioner to Order PO-1645. In this case, the Ontario Casino Corporation submitted that disclosure of confidential information it received from one of its contracted casino managers would result in similar information no longer being supplied. The adjudicator determined that it was necessary and in the public interest for the Ontario Casino Corporation to receive as much information as possible from casino managers about the operation of its casinos in order to make sound business decisions. MBS understands that the Commissioner has asked the insurer to provide submissions in this appeal. MBS accepts the submissions of the insurer as to whether, if this exemption is not applicable, it would not provide the information to MBS in future. Factually, here, the insurer was originally not willing to provide the information that was responsive to a four month period of this request simply based on the access request. Though it has since determined that the information could be provided in order to allow for a determination as to accessibility, if it were determined that the information was available to the public, it would cease providing it to the Crown with the detrimental results as noted above…. MBS also includes an affidavit sworn by the Manager, Risk Control and Advisory Services, outlining the services provided by that office and its operational need to have ongoing access to the claims loss history contained in the insurer’s database in order to effectively manage the government’s risk management and control program. The insurer supports MBS on this issue. It submits: If the legal defence accounts and claims data relating to specific litigation were ordered produced pursuant to [the Act], it is highly unlikely that any insurer would provide the Management Board Secretariat with this very sensitive commercial information in the future. - 13 - [IPC Order PO-2128/March 18, 2003] It is the position of the Insurer that access to [the insurer’s] database has been cut off to MBS and will remain unavailable if there is any issue that the Insurer’s commercial information is not subject to the s. 17 exemption. If the Management Board Secretariat were unable to access the data generated by legal defence counsel, the Insurer respectfully submits that it would hinder the government in identifying and quantifying liability exposures and undermine its ability to monitor risk control programs. It is the Insurer’s submission that it is in the public interest that the Province be able to undertake effective risk control programs and to be able to negotiate with private insurers for the best and most economical insurance programs. The insurer also includes an affidavit with its representations, sworn by the Claims Supervisor with its risk management department who has responsibility for the Province of Ontario account. The Supervisor describes the services provided by the insurer, and the protocols and procedures put in place to allow MBS staff to access the billings a
Decision Content
NATURE OF THE APPEAL:
The Ministry of the Attorney General (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for access to:
DISCUSSION:
SCOPE OF THE REQUEST
MBS takes the position that only the total cost figure appearing on page 9 of the record is responsive to the appellant’s request. The insurer supports MBS’ position on this issue.
MBS submits:
The remaining information contained in the record [other than the total cost figure] is essentially a list of amounts paid to particular named vendors together with dates and check numbers. The requester did not seek this other remaining information; only the cost of the defence was requested. When added together, the individual legal costs equal the total cost that MBS submits is responsive to the request. Since the names of the lawyers representing the defendants in the action are publicly known, extending this request to amounts paid to named law firms, for example, over a particular period of time goes well beyond the request for the ‘cost’ simpliciter. This information is qualitatively different than the compilation of the legal cost and extends well beyond the plain words of the request. The requester did not seek the names of the vendors or the itemization of the costs.
In addition, in his letter, the appellant provided specific directions to MBS that indicated what information he expected to receive:
I would ask that in fulfilling this request, that the Cabinet Office refer to FOI Appeals No. PA-000103-1 (Request #000005) to find acceptable search methods (financial rather than legal) to avoid having access to these records denied under section 19 of the Act.