Access to Information Orders
Decision Information
BACKGROUND This appeal deals with records held by the Ontario Clean Water Agency (OCWA). OCWA is an agency of the provincial government, created under the Capital Investment Plan Act , 1993 , for the purpose of providing water and wastewater services. It operates approximately 450 water and wastewater facilities for more than 200 municipalities and a small number of private and institutional clients within Ontario. According to OCWA, it is the largest supplier of municipal out-sourced water and wastewater services in the province. OCWA currently operates 31% of Ontario’s municipal water facilities and 43% of the municipal wastewater facilities. Other facilities are operated directly by municipalities through a municipal public utilities commission or by one of OCWA’s private sector competitors. NATURE OF THE APPEAL: OCWA received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to the following information: A copy of the entire list of clients served by OCWA containing the following information: each client name each client address and phone number each client key contact person name and phone number start date of contract between OCWA and each client end date of contract between OCWA and each client nature of service(s) provided to each client (i.e. water treatment, waste water treatment, water distribution, waste water collection, management advisory services) annual financial value of each contract total project revenue to be received for each contract (for full term of contract). OCWA identified the responsive record and denied access on the basis of the exemptions in sections 18(1)(a) (valuable government information) and 18(1)(c) and (e) (economic and other interests) of the Act . The requester, now the appellant, appealed the decision. During mediation, OCWA explained that it did not provide this office with a list of client telephone numbers or the total project revenue for each full-term contract because that data is contained in a different database and it would require cross-referencing to link the data sources. OCWA also explained that it did not produce the total revenue for each project because the total revenue varies depending on the conditions of each contract, and many contracts are ongoing. For example, the yearly revenue could vary depending on the volume of water usage. OCWA explained that multiplying the yearly revenue by the length of the contract would provide a reasonable estimate of the total revenue for each project. The appellant was satisfied with the explanations provided by OCWA with respect to the telephone numbers and the total revenue for each project and has agreed to proceed with the appeal based on the information contained in the one record OCWA has provided to this office. Mediation efforts were not successful and the appeal was transferred to me for adjudication. I started my inquiry by sending a Notice of Inquiry to OCWA, setting out the facts and issues in the appeal and seeking written representations. OCWA responded, and I then provided the appellant with a copy of the Notice and the non-confidential portions of OCWA’s representations. The appellant also submitted representations. I then sent a Supplementary Notice of Inquiry to OCWA, seeking representations on public intent arguments put forward by the appellant in his representations. OCWA submitted representations in response. The appellant was given an opportunity to reply, but declined to do so. RECORD: The record consists of a computer-generated chart detailing information about OCWA’s clients. Specifically, the chart lists the following information: client name client number contact person address start and end date of the contract nature of service total annual project revenue for 2002 DISCUSSION: ECONOMIC AND OTHER INTERESTS OCWA claims that all of the information contained in the record qualifies for exemption under sections 18(1)(a) and (c), and that the contract start and end dates, the service type and the total annual project revenue also qualifies for exemption under section 18(1)(e). These sections read: 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; ... (c) information where the disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution; ... (e) positions, plans, procedures, criteria or instructions to be applied to any negotiations carried on or to be carried on by or on behalf of an institution or the Government of Ontario; 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 rationale for including a “valuable government information” exemption in the Act, which is helpful in considering exemption claims under section 18(1): 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. Information that could prejudice the economic interest or competitive position of an institution: section 18(1)(c) General principles For section 18(1)(c) to apply, OCWA must demonstrate that disclosing the record “could reasonably be expected to” lead to the specified result. To meet this test, OCWA must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm.” Evidence amounting to speculation of possible harm is not sufficient [ Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. 3(d) 464 (C.A.).]. The purpose of section 18(1)(c) is to protect the ability of institutions to earn money in the marketplace. This exemption recognizes that institutions sometimes have economic interests and compete for business with other public or private sector entities, and it provides discretion to refuse disclosure of information on the basis of a reasonable expectation of prejudice to these economic interests or competitive positions [Order P-1190]. This exemption does not require the institution to establish that the information in the record belongs to the institution, that it falls within any particular category or type of information, or that it has intrinsic monetary value. The exemption requires only that disclosure of the information could reasonably be expected to prejudice the institution's economic interests or competitive position. [Order P-1190]. Representations OCWA points out that it is a self-funded
Decision Content
BACKGROUND
This appeal deals with records held by the Ontario Clean Water Agency (OCWA).
OCWA is an agency of the provincial government, created under the Capital Investment Plan Act, 1993, for the purpose of providing water and wastewater services. It operates approximately 450 water and wastewater facilities for more than 200 municipalities and a small number of private and institutional clients within Ontario. According to OCWA, it is the largest supplier of municipal out-sourced water and wastewater services in the province. OCWA currently operates 31% of Ontario’s municipal water facilities and 43% of the municipal wastewater facilities. Other facilities are operated directly by municipalities through a municipal public utilities commission or by one of OCWA’s private sector competitors.
NATURE OF THE APPEAL: