Access to Information Orders
Decision Information
Under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) the York Region District School Board (the Board), received a request for access to records relating to the use of a single school property for language instruction services by two differently named users. The Board identified records responsive to the request and denied access to them in full, relying on the mandatory exemptions under sections 10(1) (third party information) and 14 (personal privacy) and the discretionary exemption under section 11 (economic interests of an institution). The requester (now the appellant) appealed the Board’s decision. It was determined in the course of mediation and was understood and agreed that the rationale behind a ruling on a representative sample of records would govern the broader scope set out in the appellant’s original request. The appeal did not resolve at mediation and the matter moved to the adjudication stage. This office sent a Notice of Inquiry to the Board and affected parties, initially, seeking representations. Only the Board and one affected party (affected party number 1) responded. The representations of affected party number 1 consist of a statement that the release of the records will cause competitive harm, with no reference to any factual or legal basis for this assertion. This office then sent a Notice of Inquiry to the appellant, together with the representations that had been received. The appellant provided his representations in response. The Board submits that the exemptions set out in sections 10(1) and 14 of the Act applies to all the Records and the exemption in section 11 applies to Records 2 and 3. As reflected in the representations that the appellant filed, the focus of the appellant’s search for information appears to be whether the rates and fees charged for the use of the school facilities were competitive or below market rates. Finally, an argument was raised in this appeal to the effect that the facility permit, described as Record 4 below, pertains to the use of the facility by an entity related to the Board. Although this issue is dealt with in the body of this appeal, for the purposes of this decision, I will refer collectively to the users of the facility set out in the Records as the affected parties.
Decision Content
NATURE OF THE APPEAL:
Under the Municipal Freedom of Information and Protection of Privacy Act (the Act) the York Region District School Board (the Board), received a request for access to records relating to the use of a single school property for language instruction services by two differently named users. The Board identified records responsive to the request and denied access to them in full, relying on the mandatory exemptions under sections 10(1) (third party information) and 14 (personal privacy) and the discretionary exemption under section 11 (economic interests of an institution).
The requester (now the appellant) appealed the Board’s decision. It was determined in the course of mediation and was understood and agreed that the rationale behind a ruling on a representative sample of records would govern the broader scope set out in the appellant’s original request.
The appeal did not resolve at mediation and the matter moved to the adjudication stage.
This office sent a Notice of Inquiry to the Board and affected parties, initially, seeking representations. Only the Board and one affected party (affected party number 1) responded. The representations of affected party number 1 consist of a statement that the release of the records will cause competitive harm, with no reference to any factual or legal basis for this assertion.
This office then sent a Notice of Inquiry to the appellant, together with the representations that had been received. The appellant provided his representations in response.
The Board submits that the exemptions set out in sections 10(1) and 14 of the Act applies to all the Records and the exemption in section 11 applies to Records 2 and 3. As reflected in the representations that the appellant filed, the focus of the appellant’s search for information appears to be whether the rates and fees charged for the use of the school facilities were competitive or below market rates.
Finally, an argument was raised in this appeal to the effect that the facility permit, described as Record 4 below, pertains to the use of the facility by an entity related to the Board.
Although this issue is dealt with in the body of this appeal, for the purposes of this decision, I will refer collectively to the users of the facility set out in the Records as the affected parties.
RECORDS:
As agreed to at mediation, the narrowed request relates to the following records:
Record 1 Facility Permit for [affected party number 1] at [the school] for September 2003 to June 2004
Record 2 Invoice issued to [affected party number 1] for September 2003 to June 2004
Record 3 Customer Rental Amendment Statements (10) for [affected party number 1] for September 2003 to June 2004
Record 4 Facility Permit for [affected party number 2] at [the school] for September 2003 to May 2004
DISCUSSION:
General principles
Sections 10(1)(a), (b) and (c) state:
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; or
(c) result in undue loss or gain to any person, group, committee or financial institution or agency.
Section 10(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 10(1) serves to limit disclosure of confidential information of affected parties that could be exploited by a competitor in the marketplace [Orders MO-1706, PO-1805, PO-2018, PO-2184].
For section 10(1) to apply, the institution and/or the affected parties 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 institution 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 10(1) will occur.
Part One: Types of Information
Analysis
The types of information listed in section 10(1) of the Act have been discussed in prior orders, and commercial and financial information have been defined as follows:
Commercial information is information that relates solely to the buying, selling or exchange of merchandise or services. This term can apply to both profit-making enterprises and non-profit organizations, and has equal application to both large and small enterprises [Order PO-2010]. The fact that a record might have monetary value or potential monetary value does not necessarily mean that the record itself contains commercial information [P-1621].
Financial information refers to information relating to money and its use or distribution and must contain or refer to specific data. Examples of this type of information include cost accounting methods, pricing practices, profit and loss data, overhead and operating costs [Order PO-2010].
For the purposes of part one of the test, I find that all the Records contain information that qualifies as commercial and/or financial information under the Act. These Records include information about the rents, fees, costs, hours of use and aggregate cost for use of the facilities or changes to these items and/or the state of accounts between the affected party and the Board. In my view, all of this information satisfies the requirements of the first part of the test under section 10(1) as it is commercial and/or financial information.
Part Two: Supplied in Confidence
In order to satisfy part 2 of the test, the Board and/or the affected parties must establish that the information at issue was “supplied” to the Board in confidence, either implicitly or explicitly.
Supplied
Information may qualify as “supplied” if it was directly supplied to an institution by a third party, or where its disclosure would reveal or permit the drawing of accurate inferences with respect to information supplied by a third party [Orders PO-2020, PO-2043].
In Confidence
In order to satisfy the “in confidence” component of part two, the parties resisting disclosure must establish that the supplier had a reasonable expectation of confidentiality, implicit or explicit, at the time the information was provided. This expectation must have an objective basis [Order PO-2043].
In determining whether an expectation of confidentiality is based on reasonable and objective grounds, it is necessary to consider all the circumstances of the case, including whether the information was:
- communicated to the Board on the basis that it was confidential and that it was to be kept confidential;
- treated consistently in a manner that indicates a concern for its protection from disclosure by the affected parties prior to being communicated to the Board;
- not otherwise disclosed or available from sources to which the public has access;
- prepared for a purpose that would not entail disclosure [PO-2043].
The Representations of the Board
In its representations, the Board submits that it is obligated to respect the business confidentiality of its clients as a basic business premise. It says the rates and fees for the use of the schools are publicly accessible, so all potential users have equitable access to this information.
The Board states that any individual, group or organization wishing to use school board facilities is required to complete an application form (a sample of which was enclosed with the Board’s representations). The Board states that this notice informs the users that all information they supply will be treated in confidence and the Board treats this information in confidence.
The Board submits that at the commencement of the business relationship and throughout, users supply the Board with their financial and commercial information. They say that all the information collected and any communication of information to the Board is afforded the same degree of confidentiality and protection as personal information, not only at the time it is supplied but also during all transactions related to permits and facility bookings. This includes the establishment of the permit, invoicing, and subsequent amendments to the permit. Amendments to permits are communicated in a confidential manner and requests from the permit holder to amend the permit require the contract and customer numbers before the amendment can occur. As a result, the Board says, this particular piece of information must be kept confidential. They submit that should the customer number be publicly known it could be used by anyone to purposely cause confusion and difficulties for the permit holder and the Board, or be fraudulently used to influence the terms of the booking. The Records are not posted in the school facility or made publicly available in any other manner.
With respect to information contained on an invoice, the Board points out that its Accounting Services Manager has advised that all inquiries from third parties for invoicing information are denied as a matter of routine.
The Representations of the Appellant
The appellant agrees that the Community Use of School User Guide and Fee Schedules are publicly available and that the fees and costs can be found there. He submits that insurance and other costs are standard and non-negotiable and the business hours and programs of the affected parties’ are contained in promotional fliers so the rents, fees and costs can be estimated by matching them to the hours of operation. Hence they are not confidential.
Relying on the rationale in Orders MO-1706 and PO-2018, the appellant submits that since there is no negotiation, the information provided on Records 1, 2 and 4 should be treated as mutually generated rather than “supplied” for the purposes of this aspect of the test, even where the contract substantially reflects terms proposed by a third party. The appellant asserts that with respect to Record 2, invoices are not supplied in confidence by the permit holder, but rather generated by computer based on the terms of the use of the facility and are given by the Board to the permit holder. As a result, this information cannot be viewed as being supplied by the Permit holder to the Board.
Analysis
As discussed by Adjudicator Morrow in Order MO-1861, many previous orders of this office indicate that the terms of a contract involving an institution and a third party will not normally qualify as having being “supplied” for the purpose of section 10(1). The provisions of a contract, in general, have been treated as mutually generated rather than “supplied” even where the contract is preceded by little or no negotiation [Orders MO-1706, PO-2018].
Like in Order MO-1861, I have not been provided with a copy of the completed contract but it appears, based on the submissions, if the rates and fees were not unilaterally set by the institution as posted and then accepted by the affected parties (resulting in them not being supplied by the affected parties) then the rates and fees for the use of the facilities, were arrived at by mutual agreement through negotiation. Furthermore, unless unilaterally set by the Board (again, resulting in them not being supplied by the affected parties) the actual hours of use of the facilities and any changes reflected in the Customer Rental Amendment Statements (Record 3) are arrived at through a process of offer and acceptance, initiated by the affected parties or the Board, and subject to the availability of the facility on the specified dates, again a process of mutual agreement. In the result, I find that this does not satisfy the requirement in section 10(1) that the information be “supplied” by the affected parties. As a result it is not necessary to address whether the information was supplied in confidence.
Finally, in his submissions, the appellant argues that section 10(1) does not apply in this appeal because affected party number 2 is “related to” the Board and should not be treated as a separate entity.
Whether or not affected party number 2 is related to the Board, the conclusions I have reached in this appeal would be the same. The requirement that the information be “supplied” to the Board might have been impacted by this argument, but I have concluded on other grounds that the information was not “supplied” and this exemption therefore does not apply.
As all three parts of the test under section 10(1) must be met in order for the exemption to apply, I find that section 10(1) has no application to the undisclosed information. The application of section 11 of the Act to the undisclosed information is considered next.
ECONOMIC INTERESTS OF AN INSTITUTION
Sections 11(a), (c) and (d) of the Act state:
A head may refuse to disclose a record that contains,