Access to Information Orders
Decision Information
A broadcast journalist requested information from the Ontario Lottery and Gaming Corporation about insider wins in paper form, and from the OLG’s winners’ database. The Ontario Provincial Police are conducting an investigation into insider wins. Information relating to charges arising from an insider win is excluded from the scope of the Act under section 65(5.2) (records relating to an ongoing prosecution). The application of that section in the circumstances of this appeal is not retroactive. In addition, some information is exempt under section 14(1)(a) (law enforcement), sections 18(1)(c) and (d) (economic and other interests), and 21(1) (personal privacy). Section 23 (the public interest override) applies to some of the information that is exempt under section 21(1). The OLG is ordered to disclose the information that is not exempt, and information that is subject to the public interest override; and to prepare a revised fee estimate; and to provide notice to some individuals for whom section 14 is no longer claimed.
Decision Content
ORDER PO-3017
Appeals PA06-308 and PA07-65-2
Ontario Lottery and Gaming Corporation
December 5, 2011
Summary: A broadcast journalist requested information from the Ontario Lottery and Gaming Corporation about insider wins in paper form, and from the OLG’s winners’ database. The Ontario Provincial Police are conducting an investigation into insider wins. Information relating to charges arising from an insider win is excluded from the scope of the Act under section 65(5.2) (records relating to an ongoing prosecution). The application of that section in the circumstances of this appeal is not retroactive. In addition, some information is exempt under section 14(1)(a) (law enforcement), sections 18(1)(c) and (d) (economic and other interests), and 21(1) (personal privacy). Section 23 (the public interest override) applies to some of the information that is exempt under section 21(1). The OLG is ordered to disclose the information that is not exempt, and information that is subject to the public interest override; and to prepare a revised fee estimate; and to provide notice to some individuals for whom section 14 is no longer claimed.
Statutes Considered: Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as amended, ss. 2(1) (definition of personal information), 14(1)(a), 18(1)(c) and (d), 21(1)(a) and (f), 21(2)(a), (c), (e), (f), (h) and (i), 23, 57(1), 65(5.2).
Orders and Investigation Reports Considered: Orders M-796, M-1033, P-1258, P-984, PO-2085, PO-2465, PO-2556, PO-2607, PO-2657, PO-2664, PO-2703, PO-2789, PO-2791,
PO-2812, PO-2991.
Cases Considered: Ministry of the Attorney General and Toronto Star, 2010 ONSC 991 (Div. Ct.); Dell Computer Corp. v. Union des Consommateurs, 2007 SCC 34; Niagara Escarpment Commission v. Paletta International Corp., 2007 CanLII 36641 (Div. Ct.); Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; Dikranian v. Quebec (Attorney General), 2005 SCC 73; R. v. Puskas, [1998] 1 S.C.R. 1207; Ontario (Ministry of Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), [2007] O.J. No. 4233 (Div. Ct.); Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23; Ontario Hydro v. Mitchinson, [1996] O.J. No. 4636 (Div. Ct.).
OVERVIEW:
[1] This order concludes a series of appeals and orders involving a group of requests made by the Canadian Broadcasting Corporation (CBC or “the appellant”) to the Ontario Lottery and Gaming Corporation (OLG) for information about lottery wins. These requests and appeals were made under the Freedom of Information and Protection of Privacy Act (the Act). This order deals with information about “insider” wins, a special category of winner defined by OLG, which includes OLG staff and officials, lottery retailers and their immediate families.
[2] The subject of fraudulent insider wins was dealt with by the CBC television program, the fifth estate, in several broadcasts. As a consequence, Ombudsman Ontario (the Ombudsman) launched an investigation that culminated in the publication of a report entitled A Game of Trust in March 2007. In the Executive Summary of his report, Ombudsman André Marin included the following comments:
Without question, insiders have won big over the years. The Corporation confirms that from 1999 to November 2006, at least 78 retail owners and 131 retail employees have won major lottery prizes, and there could be more. Retailers have also no doubt won thousands of smaller prizes. Certainly many of these wins are legitimate, but it is equally clear that millions of dollars have been paid out in what are dishonest claims. In 2003 and 2004, the OLG identified five suspicious wins by “insiders” – all of which are detailed in this report – yet only one of the claimants was denied a prize. […]
[…]
…[A]lthough some tighter security measures were taken before the fall of 2006, it remains incontrovertible that the OLG was shirking its responsibility in protecting against fraudulent insider wins. […]
[Emphasis added.]
[3] Subsequently, OLG took a number of steps to beef up its investigation of insider wins, as noted by the Ombudsman in his report. In addition, the Ombudsman made a number of recommendations that were implemented by the OLG, including oversight by the Alcohol and Gaming Commission of Ontario.
[4] The two appeals dealt with in this order (PA07-65-2 and PA06-308) pertain to several categories of electronic and paper records relating to insider wins. Appeal PA07-65-2 addresses the portions of the OLG’s electronic winners’ database that relate to insider winners. In Appeal PA06-308, the CBC requested documents used to verify insider lottery wins, namely: major winner forms; insider win forms; and checklists.
[5] The group of requests submitted by the CBC relating to lottery wins has already resulted in four orders being issued by this office.
[6] In Orders PO-2657 and PO-2664, Assistant Commissioner Brian Beamish ordered partial disclosure of records relating to two specific lottery wins by insiders. In Order PO-2789, Adjudicator Daphne Loukidelis ordered partial disclosure of records relating to a third insider win. In Order PO-2812, issued in Appeal PA07-65, I dealt with the portions of the OLG winners’ database relating to winners who had not been identified as insiders.
[7] Both Appeals PA06-308 and PA07-65 went through an initial round of mediation. Following the issuance of Orders PO-2657 and PO-2664, at the request of OLG and the CBC, a second mediation was conducted in relation to Appeal PA06-308 and the portions of the database in PA07-65 that related to insiders. To accommodate this, the insider portions of the records in Appeal PA07-65 were transferred into Appeal PA07-65-2, and the non-insider portions continued to be addressed in Appeal PA07-65. The latter appeal was resolved by Order PO-2812.
[8] During the second mediation, which dealt with Appeals PA07-65-2 and PA06-308, Deloitte Financial Advisory issued a report (the “Deloitte Report”) entitled “Ontario Lottery and Gaming Corporation: A data analytic review of lottery transactions.”
[9] The Ontario Provincial Police (OPP) are investigating insider wins. The OPP has participated in these appeals by means of representations submitted on its behalf by the Ministry of Community Safety and Correctional Services (the ministry). After the Deloitte Report was issued, the OPP investigation was broadened to include a review of suspicious insider behaviour identified in the Deloitte Report. Because of this, the second mediation did not proceed further. As the CBC wished to pursue access to the withheld portions of the database in Appeal PA07-65-2, and to the records at issue in Appeal PA06-308, these two appeals (which, as noted above, are dealt with in this order) were returned to the inquiry stage of the appeal process.
[10] The representations provided in Appeal PA07-65 address many of the issues that I must decide in this order, given that Appeal PA07-65-2 deals with the “insider” portions of the same database that was at issue in Appeal PA07-65. Accordingly, I have advised the parties that, in deciding this case, I will consider the representations provided in Appeal PA07-65. Representations in Appeal PA07-65 were received from the OLG, the ministry (on behalf of the OPP) and the CBC. They were exchanged in accordance with Practice Direction 7 issued by this office.
[11] In conducting this inquiry, I invited and received representations concerning Appeals PA06-308 and Appeal PA07-65-2 from the OLG, the ministry and the appellant. The OLG indicated that it claims the section 14 law enforcement exemption for all the records, but takes no position on the application of this exemption for its own part; rather, it effectively adopts the ministry’s position in this regard. In its initial representations in these two appeals, the ministry identified a number of insider wins to which the section 14 exemption no longer applies.
[12] I then sent letters providing notice of Appeals PA07-65-2 and PA06-308 to the insider winners who: (1) had claimed lottery a prize; (2) had at that time been identified as winners whose records were not exempt under section 14; and (3) were owners of lottery retail outlets or employees or other individuals who performed services for lottery retailers. For ease of reference, I will refer to these individuals in this order as the “notified insider winners.” Only one of these individuals provided representations, in which she stated that she was opposed to information about her being disclosed.
[13] As with Appeal PA07-65, the representations I have received in Appeals
PA07-65-2 and PA06-308 were exchanged in accordance with Practice Direction 7 issued by this office.
[14] In its final representations, the ministry identified additional insider wins to which the section 14 exemption no longer applies. These insider winners have not been notified of these appeals. As outlined in more detail below, this order requires the OLG to provide notice to these individuals and to make access decisions under sections 18(1)(c) and (d), 21(1) and 23, taking their representations and the provisions of this order into account.
Details of the two appeals
Appeal PA07-65-2
[15] This appeal arises from a request for access by the CBC to “all data available in [the OLG’s] winner’s database including personal information with the exception of information such as driver’s licenses and social insurance numbers [on CD Rom].” The CBC’s request was for information relating to winners from 1992/1993 to the date of the request. The request specifically asked for:
“electronic extracts of any and all database source files relating in any way to any information about any or all [OLG] winners.”
[16] The request was later clarified to include:
all data available in [the OLG’s] winner’s database including personal information with the exception of information such as driver’s licenses and social insurance numbers [on CD ROM].
[17] The CBC does not seek access to de-identified data.
[18] The OLG issued a decision letter in which it agreed to provide access to portions of the database and denied access to other portions of the database. The letter stated:
• information about an insider win that is the subject of ongoing criminal charges is excluded from the scope of the Act under section 65(5.2), and the application of this section is not retroactive;
• the late raising of sections 14(1)(a), (b) and (f) and section 18(1)(c) and (d) is permissible in the circumstances of these appeals; and
• information concerning insider wins for which the ministry continues to support the application of section 14(1)(a) is exempt under that section.
[29] With respect to records that pertain to the lottery wins of the notified insider winners (who, as outlined in paragraph 12, are individuals for whom section 14 is no longer claimed), I have made the following further determinations:
• the information that the OLG claims is exempt in the winners’ database under sections 18(1)(c) and (d) in Appeal PA08-65-2 is exempt under those sections, and some related information in the paper records at issue in Appeal PA06-308 is also exempt under those sections;
• all of the personal information in the records, with the exception of the names of insider winners and their prize amounts in the winners’ database, is exempt under section 21(1); and
• in Appeal PA06-308, some personal information of the notified insider winners that is not exempt under sections 18(1)(c) and (d) is to be disclosed to the CBC under the public interest override at section 23.
[30] In addition:
• the OLG is ordered to provide notice under section 28 of the Act to insider winners identified in the records who have not been notified of these appeals and who: (1) have claimed lottery prizes; (2) have now been identified as winners whose records are not exempt under section 14; and (3) were owners of lottery retail outlets or employees or other individuals who performed services for lottery retailers, or employees of the OLG; and to issue a further access decision in accordance with section 28, taking into account any representations it may receive from these individuals, as well as the findings I have made in this order under sections 18(1)(c) and (d), 21(1) and 23; and
• the OLG must issue a new fee estimate relating to the information actually being disclosed in Appeal PA07-65-2, and that fee may be appealed by the CBC without paying an additional appeal fee, even if the CBC decides to pay the fee and obtain access to the records.
[1] Ministry of the Attorney General and Toronto Star, 2010 ONSC 991 (Div. Ct.) (“Toronto Star”).
[2] Order PO-2703.
[3] Toronto Star, cited at footnote 1. See also Canada (Information Commissioner) v. Canada (Commissioner, RCMP), 2003 SCC 8, [2003] 1 S.C.R. 66 at para. 25.]
[4] Order PO-2703.
[5] R. Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008) (“Sullivan”) at 669-70.
[6] Sullivan at 673.
[7] See Order PO-2991.
[8] Sullivan at 679.
[9] Pierre-André Côté, The Interpretation of Legislation in Canada, 2nd ed. (Quebec: Les Éditions Yvon Blais, Inc., 1991) (“Côté”) at 118-120.
[10] at 124.
[11] 2007 SCC 34.
[12] See Ontario (Minister of Health v. Big Canoe), [1995] O.J. No. 1277.
[13] Sullivan at 711.
[14] Côté at 105 and 140.
[15] Niagara Escarpment Commission v. Paletta International Corp., 2007 CanLII 36641 (Div. Ct.), at paras. 42-43.
[16] [1977] 1 S.C.R. 271 at 282.
[17] Côté at 163.
[18] Dikranian v. Quebec (Attorney General), 2005 SCC 73 at para. 37-38; Côté at 144.
[19] Dikranian at para. 39; Côté at 144.
[20] Dikranian at para. 37.
[21] Niagara Escarpment Commission (see citation at footnote 15, above) at para. 42.
[22] [1998] 1 S.C.R. 1207.
[23] Puskas at paras. 14-15.
[24] cited at footnote 15, above.
[25] Niagara Escarpment Commission (cited above at footnote 15) at paras. 34, 35, 43, 44, 45, 46, 47, 52, 55 and 56.
[26] cited above at footnote 1.
[27] [1993] O.J. No. 2556, leave to appeal refused [1993] S.C.C.A. No. 560.
[28] cited above at footnote 1.
[29] The CBC actually cites Order PO-2719, but this order does not address section 65(5.2); it is apparent that the CBC intended to refer to Order PO-2971.
[30] cited above at footnote 1.
[31] The policy now embodied in section 11.01 of the Code was upheld by the Divisional Court in Ontario (Ministry of Consumer and Commercial Relations) v. Fineberg, (December 21, 1995) Toronto Doc. 220/95, leave to appeal to the Court of Appeal refused at [1996] O.J. No. 1838 (C.A.).
[32] Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3d) 197 (Div. Ct.).
[33] Order PO-2037, upheld on judicial review in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), [2003] O.J. No. 2182 (Div. Ct.); Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.).
[34] Ontario (Ministry of Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), [2007] O.J. No. 4233 (Div. Ct.) at para. 60.
[35] Orders PO-2657, PO-2085 and MO-1578.
[36] Order PO-2085.
[37] cited above at footnote 34.
[38] cited above at footnote 34.
[39] H.J. Heinz of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441.
[40] cited above at footnote 34.
[41] cited above at footnote 34.
[42] at paras. 72-73.
[43] cited above at footnote 32.
[44] Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner), cited above at footnote 32.
[45] Orders P-1190 and MO-2233.
[46] Order P-1398 upheld on judicial review in Ontario (Ministry of Finance) v. Ontario (Information and Privacy Commissioner), [1999] 118 O.A.C. 108, [1999] O.J. No. 484 (C.A.), leave to appeal to Supreme Court of Canada refused (January 20, 2000), Doc. 27191 (S.C.C.); see also Order MO-2233.
[47] Order 11.
[48] Orders P-257, P-427, P-1412, P-1621, R-980015, MO-1550-F and PO-2225.
[49] Orders P-1409, R-980015, PO-2225 and MO-2344.
[50] Order PO-1880, upheld on judicial review in Ontario (Attorney General) v. Pascoe, [2002] O.J. No. 4300 (C.A.).
[52] See also Order PO-2465.
[53] in paragraph 1.
[54] Order PO-2518.
[55] Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23.
[56] Order P-244.
[57] Orders P-984, PO-2607 and PO-2556.
[58] Order P-984.
[59] Orders M-773 and M-1074.
[60] Ontario Hydro v. Mitchinson, [1996] O.J. No. 4636 (Div. Ct.), Orders PO-2072-F and PO-2098-R.
[61] As in Orders PO-2657 and PO-2664, Adjudicator Loukidelis found in Order PO-2789 that the disclosure she had already ordered would satisfy the public interest. However, in all three of these orders, the section 21(1) exemption applied more narrowly than I have applied it in this case, because in those appeals, a great deal of the information about insider wins was already in the public domain and attracted less of a privacy interest than I have found in the circumstances of this appeal.
[62] Even if I had found the notified insider winners’ names and prize amounts exempt under section 21(1), I would have applied section 23 to this information because, in my view, the public interest in its disclosure is very compelling and outweighs the purposes of all these exemptions for the reasons outlined in the discussion of section 21(2)(a) at paragraphs 216-221, above.
[63] Order MO-1573.
[64] Section 54(2).