The property owners submit that the NMP relates to their “family farm” and contains personal information that should not be disclosed.  The property owners’ representations do not address any specific components of the definition of “personal information” or any past orders issued by this office.

Previous decisions of this office have drawn a distinction between an individual’s personal and professional or official government capacity, and found that in some circumstances, information associated with a person in a professional or official government capacity will not be considered to be “about the individual” within the meaning of the section 2(1) definition of “personal information” (Orders P-257, P-427, P-1412, P-1621).  While many of these orders deal with individuals acting as employees or representatives of organizations (Orders 80, P-257, P427, P-1412), other orders have described the distinction more generally as one between individuals acting in a personal or business capacity:

•             In Order M-118, former Commissioner Tom Wright ordered the partial disclosure of mailing lists compiled by the City of Toronto that included the names and addresses of individuals who had expressed an interest in certain municipal properties.  Commissioner Wright distinguished between the personal or business capacity of the named individual.  The distinction did not turn on whether or not the name as it appeared on the list was that of an individual, but rather on whether there was evidence indicating that the individual was acting in a personal or business capacity.

•             In Order M-454, former Adjudicator John Higgins found that the name of the owner of a dog kennel, and an address that was both the business and residential address of that owner was not personal information but “information [that] relates to the ordinary operation of the business”.

•             Order P-710 dealt with records that contained the names of individuals and corporations who were vendors of goods and services to the Liquor Control Board of Ontario.  Adjudicator Donald Hale found that the names of individuals should be disclosed as the identifying information related to “the business activities of these individuals” and as such did not qualify as their personal information.

•             In Order P-729, former Adjudicator Anita Fineberg found that the amount of financial assistance received from the Ontario Film Development Corporation by a named individual applicant (as opposed to a corporation, sole proprietorship or partnership) related to the business activities of that individual and could not be characterized as personal information.

Based on the principles expressed in these orders, the first question to ask in a case such as this is: “in what context do the names of the individuals appear”?  Is it a context that is inherently personal, or is it one such as a business, professional or official government context that is removed from the personal sphere?  In my view, when someone rents premises to a tenant in return for payment of rent, that person is operating in a business arena.  The landlord has made a business arrangement for the purpose of realizing income and/or capital appreciation in real estate that he/she owns.  Income and expenses incurred by a landlord are accounted for under specific provisions of the Income Tax Act and, in my view, the time, effort and resources invested by an individual in this context fall outside the personal sphere and within the scope of profit-motivated business activity.

I recognize that in some cases a landlord’s business is no more sophisticated than, for example, an individual homeowner renting out a basement apartment, and I accept that there are differences between the individual homeowner and a large corporation that owns a number of apartment buildings.  However, fundamentally, both the large corporation and the individual homeowner can be said to be operating in the same “business arena”, albeit on a different scale.  In this regard, I concur with the appellant’s interpretation of Order MO-1562 that the distinction between a personal and a business capacity does not depend on the size of a particular undertaking.  It is also significant to note that the [Tenant Protection Act] requires all landlords, large and small, to follow essentially the same set of rules.  In my view, it is reasonable to characterize even small-scale, individual landlords as people who have made a conscious decision to enter into a business realm.  As such, it necessarily follows that a landlord renting premises to a tenant is operating in a context that is inherently of a business nature and not personal. 

The analysis does not end here.  I must go on to ask: “is there something about the particular information at issue that, if disclosed, would reveal something of a personal nature about the individual”?  Even if the information appears in a business context, would its disclosure reveal something that is inherently personal in nature?  

In my view, there is nothing present here that would allow the information to “cross over” into the “personal information” realm.  The fact that an individual is a landlord speaks to a business not a personal arrangement.  As far as the second point is concerned, the information at issue does not reveal precisely why the individual owes money to the Tribunal, and the mere fact that the individual may be personally liable for the debt is not, in my view, personal, since the debt arises in a business, non-personal context.  The fact that monies owed have not been fully paid is also, in my view, not sufficient to bring what is essentially a business debt into the personal realm, nor is the fact that a landlord may be prohibited by statute from commencing an application under the TPA. 

Is there something about the particular information at issue that, if disclosed, would reveal something of a personal nature about the property owners?

As indicated in Order PO-2225, the analysis does not end with an assessment of the context in which the names of the property owners appear.  I must do on to answer this second question.

I find that there is nothing present in the circumstances of this case that would allow the information in the NMP to “cross over” into the personal realm.

The address and phone number on the front page of the NMP is listed under the name of the farming operation, not the property owners personally.  I have no evidence to suggest that this address and phone number does not belong to the farming business, and in fact, the appellant states in his representations that the property owners personal address is not the same as the farm address.  In the circumstances, I am not persuaded that the address and phone number are information about the property owners in a personal capacity.  I should also note that it would appear that the address and phone number on the front page have already been disclosed in the context of the previous version of the MNP and the litigation the arose in that context.

The Ministry’s main argument is that disclosing the contents of the NMP would reveal the information about the property owners’ “income and expenditures”, as well as
”activities and financial transactions to be undertaken by the property owners to earn income”.  In my view, the linkage between the content of the NMP and the type of information described by the Ministry is simply too remote to warrant the characterization the Ministry suggests.  As the Ministry appears to acknowledge in its representations relating to section 17(1), the document does not include any actual “financial information”.  Having carefully reviewed the record, I am unable to conclude that the property owners’ actual “income and expenditures” could be ascertained from the contents of the NMP.  In my view, it would be necessary for someone to have considerably more information than the various test results and farm operation details contained in the record in order to come up with any accurate estimate of the property owners’ “income and expenditures”. 

In addition, the NMP does not include “information relating to financial transactions in which the individual has been involved”, as required in order to meet the requirements of paragraph (h) of the definition of  “personal information”.  The record itself was not prepared in the context of a financial transaction involving the property owners, nor does it include information concerning past financial transactions relating to the property.  The Ministry’s position that the NMP “provides details that, if disclosed, would permit calculation of the gross earnings of two individuals from the purchase and sale of livestock and from the production of crops” is simply not supported by the content of the record itself.

It would also appear on the facts that the barn the property owners intend to build is an expansion of an existing farming operation.  This reinforces my finding that the document contains business rather than personal information.  Unlike the situation in Order P-364, which involved a small farming operation and records that would reveal the overall income of the farm owners, this appeal involves persons engaged in a more sophisticated and expansive business operation.  In my view, it is not accurate to conclude that even if financial information could be derived from the disclosure of the NMP, it would be sufficient to permit the calculation of the overall income level of either property owner.

As far as the past orders identified by the Ministry regarding building and land use permits are concerned, they are distinguishable from the current appeal.  These cases presuppose that the applicant is an individual, which is not the case here.

The fact that the property owners operate a large hog finishing farm speaks to a business not a personal arrangement and, in my view, there is nothing in the NMP or the circumstances of this appeal to bring what is essentially a business activity into the personal realm.

Accordingly, I find that the NMP does not contain the “personal information” of the property owners.  Because only “personal information” can qualify for exemption under section 21 of the Act, I find that this exemption has no application in the circumstances of this appeal.

THIRD PARTY INFORMATION

General principles

Section 17(1) states, in part:

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;

(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;

Section 17(1) is designed to protect the confidential “informational assets” of businesses or other organizations that provide information to government institutions.  Although one of the central purposes of the Act is to shed light on the operations of government, section 17(1) serves to limit disclosure of confidential information of third parties that could be exploited by a competitor in the marketplace [Orders PO-1805, PO-2018, PO-2184, MO-1706].

For section 17(1) to apply, the parties resisting disclosure (in this case the Ministry and the property owners) 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 the Ministry 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 paragraph (a), (b) and/or (c) of section 17(1) will occur.

[Orders 36, P-373, M-29 and M-37]

Part 3: Harms

I will deal first with the harms component of section 17(1).

General principles

To meet this part of the test, the Ministry and/or the property owners must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm” if the record is disclosed.  Evidence amounting to speculation of possible harm is not sufficient; the party resisting disclosure must demonstrate that disclosure “could reasonably be expected to” lead to a specified result [Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)].

The failure of a party resisting disclosure to provide detailed and convincing evidence will not necessarily defeat the claim for exemption where harm can be inferred from other circumstances.  However, only in exceptional circumstances would such a determination be made on the basis of anything other than the records at issue and the evidence provided by a party in discharging its onus [Order PO-2020].

Representations of the parties

The Ministry’s representations on the harms component of section 17(1) focus on land value.  The Ministry submits:

[The property owners’] farming operation (including land, building, equipment, crops, livestock, and operational methodology) is a major asset.  The record at issue provides detailed information related directly to the value of the asset and the viability of the farm, including soil test reports, yields per acre by fields, and crop plans.  This information is not otherwise available about [the property owners’] farm or other farms.  It is a reasonable expectation that release of the record would interfere with [the property owners’] ability to negotiate the sale or lease of the farming operation, or parts of it.  [The property owners] would be at an unfair disadvantage in such contractual negotiations because similar detailed information about other farming operations that are for sale or lease would not be available.  Exposing details about one farm that are not available about other farms in the area would create an inequity and could reasonably be expected to result in an undue loss in bargaining power for [the property owners] in this appeal.

The plan reveals the [property owners’] business plans and projected cash income for a three-year period.  Release of this information could reasonably be expected to interfere with negotiations with suppliers or financial lenders.

The property owners do not deal specifically with the harms component of section 17(1) in their representations, focusing instead on the costs they have incurred in obtaining approval for the construction of the barn and questioning the motives of the appellant in seeking access to the NMP.

The appellant responds to the Ministry’s submissions as follows:

Assuming, without necessarily conceding the point, that the soils information comes from tests which are specific to the lands owned or controlled by [the property owners], how release of that information interferes significantly with [the property owners’] economic interests or results in undue loss remains unclear to [the appellant].  The institution speculates that it might interfere with the proponent’s ability to sell or lease his land or part of it, because similar information with respect to other farms is not readily available.  This is not, however, the case.  Firstly, that information is, as indicated, generally available through a visit to a public library.  Secondly, it has already been provided and exposed publicly for these lands through a previous Court and related proceedings.  Thirdly, in this day and age, when liability for environmental damage can be so costly, and the liability is spread to all owners of a parcel of land, past, present and future, it is a reality that parcels of land which may attract environmental liability of any kind will not likely be sold without a potential purchaser requiring a Part 1 Environmental Assessment to be undertaken, which means soil testing.  In fact, [the property owners] here will gain a competitive advantage over others who may wish to see in the area because [they] will have a readily available, chronological history of the soils which others may not have, and be able to assert that [they have] nothing to hide [appellant’s emphasis].

…

… [W]e reiterate that there is no reasonable evidence of significant interference with business operations, or undue loss.  There is, rather, speculation, in the abstract, of contingencies too remote to be realistic.  To the extent that detailed financial, insurance, net worth or other information is found in [the NMP], then we are likely content that it be severed.

I find that the Ministry and/or the property owners have failed to provide the level of detailed and convincing evidence necessary to establish a reasonable expectation that any of the section 17(1) harms would occur if the NMP is disclosed.

As the appellant points out, this is at least the second time that a NMP has been prepared for the proposed barn on the property owners’ farm, and the first one was apparently made public by the Township of Huron-Kinloss and also formed part of the public record of proceedings in the context of litigation involving the property owners’ previous building permit application.  Although the content of the current NMP may have changed from the previous version, given the nature of the record, I accept the appellant’s position that both versions would contain highly similar information, thereby raising substantial doubt as to any harms the property owners are likely to suffer here.

Although the Ministry’s representations focus on harms associated with the property owners’ ability to sell their farm in future, it is significant to note that the property owners’ themselves offer no arguments to support the Ministry.  In my view, the property owners, not the Ministry, are in the best position to provide evidence of harm under sections 17(1)(a) and (c), and the fact that they did not do so here lends support for the appellant’s position that the expectation of harm is speculative at best and not adequately supported by evidence.

Having carefully reviewed the record, I do not accept the Ministry’s submission that disclosing the records would “reveal[s] the [property owners’] business plans and projected cash income for a three-year period”.  The Ministry does not argue that the NMP contains “financial information” for the purposes of section 17(1) and, with the exception of the Crop Insurance Renewal Notice included as Appendix J, I am unable to identify any “financial information” in the record.  The record does include an outline of the business venture proposed by the property owners but, in my view, the Ministry’s characterization of the NMP as containing “business plans and projected cash income for a three-year period” is simply not accurate.  It is important to state that the NMP is by definition a document dealing with projections and estimates of business activities, and does not contain actual financial or profit/loss statements where different considerations might apply.

In summary, I find that the evidence provided in support of the section 17(1) harms is neither detailed nor convincing, and does not meet the evidentiary standard established by the Court of Appeal for part 3 of the section 17(1) test.

Because all three parts of the test must be established in order for a record to qualify for exemption under section 17(1), I do not need to deal with parts 1 and 2 before concluding that the NMP does not qualify.

The appellant has indicated that insurance-related information can be severed, so I will not require the Ministry to disclose Appendix J.

In summary, I find that the NMP (with the exception of Appendix J) does not qualify for exemption under section 21 or section 17(1) and should be disclosed to the appellant.

In the circumstances, it is not necessary for me to deal with the appellant’s arguments under the section 23 public interest override.

ORDER:

1. I order the Ministry to disclose the Nutrient Management Plan (with the exception of Appendix J) to that appellant by July 28, 2004 but not before July 23, 2004.

2. In order to verify compliance, I reserve the right to require the Ministry to provide me with a copy of the record disclosed to the appellant pursuant to Provision 1, upon request.

                                                                                                       June 22, 2004                                         

Tom Mitchinson