The appellant says:

Findings

I find that the Act does apply to the portions of Record 1 identified by the Ministry because the test for the application of section 65(6)3 has not been met.

There are two significant points to bear in mind for the application of section 65(6)3.

First, generally, the record at issue, must have been collected, prepared, maintained or used in relation to meetings, consultations, discussions or communications about labour relations or employment-related matters.  The term “in relation to” in section 65(6) means “for the purpose of, as a result of, or substantially connected to” [Order P-1223].  In other words, Record 1 must have a substantial connection to a labour relations or employment related matter.

Second, as found in Order PO-1905 (followed in PO-2132), Requirement 3 of the test may apply where the records were collected, maintained and/or used in relation to the stated activity “regardless of the purpose for which they were originally created or prepared” (emphasis added).  So, as stated in Order MO-1654-I, where (as is the case here) the records stemmed from a consultant’s review,

The question of whether any of the[se] records … are “substantially connected to” an employment–related matter turns on the question of how the records were maintained or used by the City outside the primary purpose of assessing the effective and efficient operation of the EMS.  In my view, if the City were able to establish that records were maintained or used in relation to a labour relations or employment-related matter, that would satisfy the “substantially connected to” component of the test, regardless of whether they were created or prepared by the consultant for this purpose.

While the specific information the Ministry seeks to exclude may be labour relations or employment-related information, the Ministry has failed to establish that the record itself has been used or maintained in relation to a labour relations or employment-related matter.  The Ministry’s submission on this point is that the record is “intended to be used in the preparation of a presentation to Cabinet for deliberation regarding MNR’s air services activities”.  As has been determined in earlier orders (see for example M-941 as well as MO-1654-I), reviews of program delivery normally are considered an evaluation of an entire operation rather than related to labour relations or employment.  The Ministry has provided no evidence that Record 1 was maintained or used in any labour relations or employment-related context.

Therefore, the Act does apply to pages 17 and 49-52 of Record 1.   

ADVICE TO GOVERNMENT

The Ministry claims that section 13(1) applies to pages 8 (in part), 9 and 13-33 of Record 2.

General principles

Section 13(1) states:

A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution.

The purpose of section 13 is to ensure that persons employed in the public service are able to freely and frankly advise and make recommendations within the deliberative process of government decision-making and policy-making.  The exemption also seeks to preserve the decision maker or policy maker’s ability to take actions and make decisions without unfair pressure [Orders 24, P-1398, upheld on judicial review in Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner) (1999), 118 O.A.C. 108 (C.A.)].

“Advice” and “recommendations” have a similar meaning.  In order to qualify as “advice or recommendations”, the information in the record must suggest a course of action that will ultimately be accepted or rejected by the person being advised [Orders PO-2028, PO-2084, upheld on judicial review in Ontario (Minister of Northern Development and Mines) v. Ontario (Information and Privacy Commissioner) (January 19, 2004), Toronto Docs. 433/02, 25/03 (Ont. Div. Ct.)].

Advice or recommendations may be revealed in two ways:

• the information itself consists of advice or recommendations

• the information, if disclosed, would permit one to accurately infer the advice or recommendations given

[Orders PO-2028, PO-2084, upheld on judicial review in Ontario (Minister of Northern Development and Mines) v. Ontario (Information and Privacy Commissioner) (January 19, 2004), Toronto Docs. 433/02, 25/03 (Ont. Div. Ct.)]

ECONOMIC AND OTHER INTERESTS

The Ministry claims that section 18(1)(d) applies to the following either in whole or in part

• Record 1 – pages 10-16, 19-26, 31-33, 37, 41, 46, 54, 56-59, 61, 63, 65, 67, 71, and 74-79
• Record 2 – pages10-12

General principles

Section 18(1)(d) reads:

A head may refuse to disclose a record that contains,

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

For this exemption to apply, the Ministry must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm”.  Evidence amounting to speculation of possible harm is not sufficient [Order PO-1993, upheld on judicial review in Ontario (Minister of Transportation) v. Ontario (Information and Privacy Commissioner) (January 20, 2004), Toronto Docs. 193/02, 224/02 (Ont. Div. Ct.), Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)].

The Ministry also makes other, confidential, representations regarding this issue, which I am not at liberty to disclose.

Appellant representations

These reports contain no proprietary information as foreseen by the exemption under section 18 of the Act.  They are simply a collation of information freely accessible from other sources.

All the financial information about the MNR Air Services itself come from publicly accessible sources.

All the information with regard to Ontario aviation industry rates comes from tariffs published by each operator and which must be publicly available under the provisions of the National Transportation Act.

Furthermore MOF has offered no substantive support for its contention that any of the financial information could reasonably be expected to be injurious to the Government’s financial interests.

Findings

I am not satisfied that disclosure of the information contained in the records could reasonably be expected to be injurious to the financial interests of the Government of Ontario.

First, while the Ministry has described what it believes the injury to the financial interests of the government might be, it has failed to provide detailed and convincing evidence sufficient to establish a reasonable expectation of harm. 

As indicated, the records here are reports of a consultant hired to review the delivery of the MNR’s air services program.  The reports were to have been considered by Cabinet.  At the time the reports were prepared, then, Cabinet had not even considered let alone made decisions about the air services program.  Therefore, I fail to see how the records here are comparable to those at issue in the cases cited by the Ministry (i.e., Orders PO-1901 and PO-1894) in support of its argument.  In Order PO-1901, the records were appraisal reports relating to cottage lots and recreational campsites presumably on the verge of being sold, hence the existence of an appraisal in the first place.  The issue there was whether the institution could obtain a fair return for the sale of the properties in question.  The facts were similar in PO-1894 in so far as a sale of the property to which the records related appeared imminent, pending a decision of the Ontario Municipal Board.  Here, there is no evidence of an existing deal or sale that might be jeopardised.

Furthermore, the Ministry has failed entirely to address the appellant’s arguments that the reports contain no proprietary information and that, in fact, the information itself, though perhaps not collated as it is in the reports, is freely accessible from other sources.

Consequently, I am not satisfied that disclosure of information related simply to the costs, revenues, debts or assets of the MNR’s aviation operations, especially in these circumstances, could reasonably be expected to be injurious to the financial interests of the government.

Therefore, I find that pages 10-16, 19-26, 31-33, 37, 41, 46, 54, 56-59, 61, 63, 65, 67, 71, and 74-79 of Record 1 and pages 10-12 of Record 2 are not exempt from disclosure on the basis of section 18(1)(d).

ORDER:

1.         I order the Ministry to disclose all of Record 1, and pages 1-19 and 23-33 of Record 2, to the appellant no later than February 17, 2004.

2.         I uphold the Ministry’s decision to deny access to pages 20-22 of Record 2.

Original Signed By:                                                                             January 27, 2004                                          

Rosemary Muzzi