Access to Information Orders
Decision Information
NATURE OF THE APPEAL: This appeal concerns a decision of the Ministry of the Environment (the Ministry) made pursuant to the provisions of the Freedom of Information and Protection of Privacy Act (the Act ). The requester (now the appellant) made a request under the Act for the following: ...[Ministry] hydrologists and other comments relative to the Lafarge Canada Incorporated landfill site at Lot 1, Conc. 3, West Zorra and any other sites connected with [a named company] at 355- 151 35 th Line, Embro produced by your hydrogeologists from 1985 to the present... By way of background, this request for information concerns a proposal by a named company to expand its licensed lime quarry for an identified area in the Township of Zorra, County of Oxford (the subject lands). The Ministry was canvassed by the Ministry of Natural resources (MNR) for its comments on the proposal. The appellant is an environmental group formed specifically for the purpose of becoming informed about the details of the proposal and to articulate residents’ concerns about the impact of the proposed expansion on water and air quality in the area. The Ministry granted partial access to the records requested. Portions of the records were severed or denied in full, pursuant to sections 21 (invasion of privacy) and 13 (advice to government) of the Act . The Ministry also claimed the application of section 22 (information publicly available), stating that some of the information requested was not disclosed since it is already in the public domain. The appellant appealed the Ministry’s decision to deny access. During the mediation stage, the appellant advised the mediator that it does not wish to pursue access to any personal information contained in the records, nor does it wish to pursue access to documents that are publicly available. Accordingly, these records, and sections 21 and 22 of the Act , are no longer at issue in this appeal. The Ministry confirmed that it is relying on section 13 of the Act to deny access to the remaining records. During mediation, the appellant also raised the issue of a compelling public interest in the disclosure of the remaining records (section 23 of the Act ). Further mediation was not possible and the file was transferred to me for inquiry. I first sought and received representations from the Ministry. The Ministry agreed to share the non-confidential portions of its representations with the appellant. I then sought representations from the appellant and provided it with a copy of the Ministry’s non- confidential representations. The appellant submitted representations. I felt that the appellant’s representations raised issues to which the Ministry should be given an opportunity to respond, so I shared the appellant’s representations with the Ministry and sought reply representations from the Ministry. The Ministry submitted reply representations in response. RECORDS: The following two records remain at issue under section 13 of the Act : Record 1: a 4-page internal Ministry document (withheld in part) Record 2: a 6-page “draft” correspondence from a Ministry environmental planner to a MNR aggregate inspector (withheld in full). DISCUSSION: ADVICE TO GOVERNMENT 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 (see Order 94). 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 (Ministry of Northern Development and Mines) v. Ontario (Assistant Information and Privacy Commissioner) , cited above]. 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 (Ministry of Northern Development and Mines) v. Ontario (Information and Privacy Commissioner) , [2004] O.J. No. 163 (Div. Ct.), leave to appeal granted (Court of Appeal Doc. M30913 and M30914, June 30, 2004)] Examples of the types of information that have been found not to qualify as advice or recommendations include factual or background information analytical information evaluative information notifications or cautions views draft documents a supervisor’s direction to staff on how to conduct an investigation [Orders P-434, PO-1993, PO-2115, P-363, upheld on judicial review in Ontario (Human Rights Commission) v. Ontario (Information and Privacy Commissioner) (March 25, 1994), Toronto Doc. 721/92 (Ont. Div. Ct.), PO-2028, upheld on judicial review in Ontario (Ministry of Northern Development and Mines) v. Ontario (Information and Privacy Commissioner) , cited above]. The section 13(1) exemption is also subject to the mandatory exceptions listed in section 13(2). Record 1 The parties’ representations The Ministry identifies this record as a 4-page “internal Ministry document”. The Ministry describes its contents as the “preliminary advice” of its “Environmental Planner to his management team that was subsequently incorporated into record 2.” Portions of this record were disclosed to the appellant. Access to the part titled “Alternative MOE Positions” was withheld pursuant to section 13(1). The Ministry states that its decision to deny access to the information at issue is based on the view that the information at issue clearly outlines four options for courses of action that will ultimately be accepted or rejected by its decision-makers, its South-western Regional Director in consultation with its Assistant Director and Manager of Technical Support. The Ministry acknowledges that the options do not identify a clear preferred choice. The Ministry states that the author of the document is not in a position to make a decision on the preferred choice; rather, this is the responsibility of the Regional Director in consultation with her management team. The Ministry submits that the options are presented with the intent that the decision-maker will make a determination as to which, if any, of the options should be adopted. The Ministry submits that it would be premature to release this information at this time because it has not yet decided on the option it will follow. The Ministry states that before making this decision it w
Decision Content
NATURE OF THE APPEAL:
This appeal concerns a decision of the Ministry of the Environment (the Ministry) made pursuant to the provisions of the Freedom of Information and Protection of Privacy Act (the Act). The requester (now the appellant) made a request under the Act for the following:
…[Ministry] hydrologists and other comments relative to the Lafarge Canada Incorporated landfill site at Lot 1, Conc. 3, West Zorra and any other sites connected with [a named company] at 355-151 35th Line, Embro produced by your hydrogeologists from 1985 to the present…