Access to Information Orders
Decision Information
This is an appeal from a decision of the City of Cornwall (the City), made under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The decision was made in response to a request for access to all records related to the management of a restaurant by a named company (now the appellant) at the Civic Complex. The request was subsequently narrowed to seek access only to an audit report prepared by the City’s auditors in relation to the operations of the restaurant. After identifying the record responsive to the request, the City notified the appellant and asked for its submissions regarding potential disclosure of the record. After reviewing those submissions, the City decided to grant partial access to the record. The appellant appealed the City’s decision to grant partial access to this record. My inquiry into this matter began with a Notice of Inquiry that also encompassed another appeal brought by the appellant, Appeal No. MA-030366-1. The appellant abandoned Appeal No. MA-030366-1 and the file was accordingly closed on June 22, 2004. I sent the Notice of Inquiry to the appellant, initially, inviting its representations on the facts and issues raised by the appeal. After receiving the appellant’s representations, I then sent the Notice to the City and the requester, together with copies of the non-confidential portions of those representations. I received no representations from either the City or the requester.
Decision Content
NATURE OF THE APPEAL:
This is an appeal from a decision of the City of Cornwall (the City), made under the Municipal Freedom of Information and Protection of Privacy Act (the Act). The decision was made in response to a request for access to all records related to the management of a restaurant by a named company (now the appellant) at the Civic Complex. The request was subsequently narrowed to seek access only to an audit report prepared by the City’s auditors in relation to the operations of the restaurant. After identifying the record responsive to the request, the City notified the appellant and asked for its submissions regarding potential disclosure of the record. After reviewing those submissions, the City decided to grant partial access to the record. The appellant appealed the City’s decision to grant partial access to this record.
My inquiry into this matter began with a Notice of Inquiry that also encompassed another appeal brought by the appellant, Appeal No. MA-030366-1. The appellant abandoned Appeal No. MA-030366-1 and the file was accordingly closed on June 22, 2004.
I sent the Notice of Inquiry to the appellant, initially, inviting its representations on the facts and issues raised by the appeal. After receiving the appellant’s representations, I then sent the Notice to the City and the requester, together with copies of the non-confidential portions of those representations. I received no representations from either the City or the requester.
RECORD:
At issue in this appeal is access to an audit report dated May 9, 2002 and cover memo of May 10, 2002. The report consists of 11 pages of text, plus 7 schedules. In its initial decision, the City granted access to part of the report containing operating statements for a specified period, withholding other portions based on sections 14(1) and 10(1) of the Act. Subsequently, it revised its decision and decided to release all of the report, with the exception of Schedule 1 and certain portions, based on section 14(1) only. The portions that the City proposes to withhold are not at issue, as the requester has not pursued an appeal against this decision, and it is therefore not necessary for me to address them in my decision. These portions are identified in the Brief of Documents filed by the appellant.
The appellant objects to disclosure of the report, relying on the provisions of sections 10(1) and 14(1). It has no objection to the disclosure of Schedule 7, which contains the operating budget for the Civic Complex for the years 2000 and 2001.
DISCUSSION:
THIRD PARTY INFORMATION
Section 10(1) states:
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; or
(d) reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute.
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 third parties that could be exploited by a competitor in the marketplace [Orders PO-1805, PO-2018, PO-2184, MO-1706].
Where a third party appeals the head’s decision to release a record, the burden of proving that the record should be withheld from disclosure falls on the third party [see Order 42].
This means that the appellant must satisfy each part of the following three-part test under section 10(1):
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), (c) and/or (d) of section 10(1) will occur.
Part 1: type of information
The types of information listed in section 10(1) have been discussed in prior orders. Of most significance to this appeal are the definitions of commercial and financial information:
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].
The appellant submits that the report contains financial information, relating to its management of the Civic Complex. I agree. The report is a financial review of the appellant’s operations at the Civic Complex, prepared by the City’s auditors and based, among other things, on review and testing of records, information pertaining to and the results of an internal audit undertaken by the appellant, and interviews with the appellant’s employees.
The report also contains commercial information pertaining to the appellant’s operations at the Civic Complex and its contract with the City.
Part 2: supplied in confidence
Supplied
The requirement that it be shown that the information was “supplied” to the institution reflects the purpose in section 10(1) of protecting the informational assets of third parties [Order MO-1706].
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].
The appellant submits that the report discloses significant financial information relating to its management of the Civic Complex. It divides the financial information into three broad categories: (1) internal audit information; (2) internal accounting methods and procedures; and (3) source information. In relation to category (1), the internal audit information, the appellant submits that it conducted an internal audit of its operations and to cooperate with the City’s audit, it disclosed information from this internal audit. In relation to category (2), the appellant states that it revealed information to the City about its internal accounting methods and procedures through the City auditors’ interviews with the appellant’s employees and representatives. Finally, the appellant submits that it provided the City auditors with numerous source documents (category (3)) used to compile the financial statements the appellant was required to give the City under its agreement.
Applying the broad categories of financial information applied by the appellant, I agree that portions of the report contain or reveal financial information supplied by the appellant in that they consist of the appellant’s own internal audit information included in category (1), such as Schedules 5 and 6, or source documents included in category (3), such as Schedule 2. Further, to the extent that the text of the report repeats information in these schedules, those portions also contain or reveal financial information supplied by the appellant. These portions are found in the last paragraph on page 5, the first paragraph on page 6, the third paragraph on page 8 and the second paragraph on page 9.
The information in category (2), the appellant’s internal accounting methods and procedures, was partly obtained from the appellant’s internal auditors. In addition, the City auditors reviewed and tested the appellant’s records and interviewed certain employees of the appellant. The information in category (2) is found in the text of the City auditors’ report.
Consisting with my findings under category (1), I find that the information provided by the appellant’s internal auditors about the internal audit, including its review of accounting methods and procedures, qualifies as having been “supplied” within the meaning of section 10(1). The information supplied in this manner is found in the last paragraph of page 5, the first paragraph of page 6, the last paragraph of page 7, the third and fourth paragraphs of page 8 and the fourth and fifth paragraphs of page 10.
I am not convinced, however, that the portions of the report discussing the results of the City auditors’ review and testing of the appellant’s records or interviews with the appellant’s employees reveal or contain information “supplied” by the appellant.