In response to the request, the OPG denied access to the records in their entirety, and the appellant filed an appeal of that decision with this office.  During mediation of the appeal, OPG provided the appellant and this office with an index of records, withdrew several of its initial exemption claims, and specified that it relies on the exemptions in sections 14(1)(i), 16, 18(1)(a), (c), (d) and (e) of the Act.  Also during mediation, the appellant raised the public interest in disclosure of the records and the possible application of section 23.

ORDER PO-2858-I AND THE NEED FOR ADDITIONAL EVIDENCE:

In Order PO-2858-I, I determined that the source term data alone is responsive to the request, and dismissed OPG’s argument that it was justified in refusing to sever this from the records from which it derives.  I also found that the doctrine of issue estoppel did not apply.

However, because of an apparent contradiction in the evidence provided by OPG, I decided to obtain further evidence before addressing the remaining issues.  I explained the need for further evidence as follows:

The representations of the OPG state that, on the one hand, disclosure of the source term data would endanger the safety of the nuclear power facilities dealt with in the records, but at the same time, the OPG also submits that the information in the records is meaningless on its own.  I have found in the severance discussion, above, that the data is comprehensive and has meaning, in the sense that it is not a “disconnected snippet,” or misleading, in the context of deciding that it is the legitimate subject of an access request.  Nevertheless, that does not erase the impact of these submissions in relation to the question of whether the information is exempt.  In that context, I am troubled by this apparent contradiction in the OPG’s submissions.

This appeal raises significant issues of public safety.  Having reviewed the representations of both parties, and the affidavit provided by the OPG, I have decided to order the OPG to provide further affidavit evidence pertaining to the information I have found to be at issue. 

As a consequence, in Order PO-2858-I, I ordered the OPG to produce a further affidavit from a qualified individual to answer the following questions with specific reference to the records I have found to be at issue, namely the source term data tables it provided to this office as the responsive records in this appeal:

How could the disclosure of the information in the records at issue reasonably be expected to endanger the security of the nuclear facilities, or be injurious to the detection, prevention or suppression of sabotage or terrorism?

In particular, does the following submission apply to the records at issue themselves, not including additional information and/or explanations the OPG may wish to provide if the source term data are disclosed?  If so, explain how and why this is the case.

“A knowledge of radionuclide release (as a function of time) could be used to target equipment and structures in a manner that would lead to rapid and large radiological impact to the environment and the public.  The source term data (in terms of radiological release as a function of time) could be used to both plan attacks to maximize impact against the public and to stymie off-site measures to mitigate the impact.”

How can this submission be reconciled with your previous submission to the effect that the information in the records is meaningless?

PROCESS AFTER ORDER PO-2858-I:

OPG responded to Order PO-2858-I with a further affidavit and a letter from the Toronto Police Service.  At the same time, OPG asked that I allow it to provide oral in camera representations explaining why the records should not be disclosed.  I invited, and received, responding representations from the appellant on the substantive issues raised by OPG, as well as its request that I hear its oral in camera representations.

I subsequently decided not to grant OPG’s request to provide oral in camera representations and communicated that decision, by letter, to the parties.  At the same time, I invited OPG to reply to the appellant’s representations that had been provided in response to the substantive position taken by OPG concerning the questions posed in Order PO-2858-I.  OPG provided reply representations.  I then provided these to the appellant and invited sur-reply representations, which I subsequently received.

As already noted, the issues remaining to be addressed are whether the requested information is exempt under sections 14(1)(i) (security), 16 (national security) or 18(1)(a), (c), (d) or (e) (economic and other interests) of the Act, and if so, whether section 23 (the public interest override) applies.

In preparation for issuing this order, in addition to considering the representations that have been provided subsequent to Order PO-2858-I, I have also reviewed all of the representations, including all evidence and argument, that were provided by the parties prior to issuing Order PO-2858-I.

The three records at issue are entitled “EPRC Source Terms” for each of the Pickering A, B and Darlington nuclear stations.  Each of the records is one page in length and consists of a table showing the expected release of a number of substances in relation to each EPRC identified for the facility in question.  Two of the records show the expected release figures for a number of different time periods.

DISCUSSION:

NATIONAL SECURITY

Section 16 states:

A head may refuse to disclose a record where the disclosure could reasonably be expected to prejudice the defence of Canada or of any foreign state allied or associated with Canada or be injurious to the detection, prevention or suppression of espionage, sabotage or terrorism and shall not disclose any such record without the prior approval of the Executive Council.

In Order PO-2858-I, I stated:

The importance of protecting nuclear power facilities from threats of terrorism or sabotage was recognized by this office in Order PO-2500.  In that order, I applied section 16 to withhold detailed information about the Bruce Nuclear Power Plant.  The importance of national security issues of this nature is underscored by the fact that, while section 16 is a discretionary exemption, it includes the unusual proviso that an institution shall not disclose information that is subject to the exemption “without the prior approval of the Executive Council.”

It is evident from the context of this exemption that it is intended to protect vital public security interests. The importance of these interests has become increasingly clear in recent years, particularly in light of the September 11, 2001 terrorist attacks in the United States, and subsequent threats of terrorist attacks in North America.  Section 16 must be approached in a sensitive manner, given the difficulty of predicting future events affecting the defence of Canada and other countries (see Order PO-2500).

As well, the burden of proof for section 16 is less onerous than for a number of other exemptions that require a reasonable expectation of harm.  Some exemptions, such as sections 17 and 18, require “detailed and convincing” evidence to establish such a reasonable expectation.  This is not the case for section 16.  As I stated in Order PO-2500:

… in the case of “health and safety” related exemptions such as sections 14(1)(e) and 20, which use the words “could reasonably be expected to”, the standard of proof is that the institution must provide evidence to establish a reasonable basis for believing that endangerment will result from disclosure.  In other words, it must be demonstrated that the reasons for resisting disclosure are not frivolous or exaggerated [see Ontario (Information and Privacy Commissioner, Inquiry Officer) v. Ontario (Minister of Labour, Office of the Worker Advisor) (1999), 46 O.R. (3d) 395 (C.A.)].  Again, in my view, given the nature of the interests intended to be protected by section 16 of the Act, it would be appropriate to apply this standard of proof.

In response to Order PO-2858-I, OPG initially provided an additional affidavit and also a letter from a chemical, biological, nuclear and explosives specialist with the Toronto Police Service opposing the disclosure of the source term data.  In the covering letter enclosing this material, OPG states:

The Canadian Nuclear Safety Commission (CNSC) has ruled that this source term data, combined with more detailed information in the Probabilistic Assessment for Pickering B would not assist the requester or other intervenors in addressing the issues of whether Pickering B could operate safely with due regard for the protection of the environment, security and Canada’s treaty obligations during the term of the licence renewal.  If that more extensive information would not assist the requester or other intervenors, it is respectfully submitted that one small component of the information i.e. the source term data would be of even less assistance in any meaningful assessment or public debate of the issues of environmental impact, public safety and security and conformity with treaty obligations.  On the other hand, the harm that would ensue if this information falls into the hands of trained terrorists would be catastrophic.  [Emphasis added.]

To place this submission in perspective, I note that, as outlined in Order PO-2858-I, Pickering B (one of the three facilities named in the appellant’s request) was the subject of a CNSC licence renewal hearing, during which the appellant, as an intervenor, sought and was denied access to the Probabilistic Risk Assessment, which included the Pickering B source term data, on the grounds that its disclosure “may be prejudicial to the security interests of Canadians.”

In requesting the opportunity to present oral evidence to me in camera (a request that I turned down, as noted above), OPG explained that “[a] more detailed demonstration of examples of how the abuse would flow from the release of the source term data would constitute a virtual blue print for terrorists.”

It is evident that the appellant’s reasons for seeking access to this information relate to safety concerns and protecting the environment.  Nevertheless, in a general access request such as this (as opposed to a request for one’s own personal information), disclosure of information under the Act is, in effect, a disclosure to the world, and the information disclosed enters the public domain.  For that reason, the effects of the information coming into the hands of those with nefarious intent must be considered in deciding this appeal.

The affidavit provided in response to Order PO-2858-I was sworn by the OPG’s manager responsible for nuclear safety and technology (the manager), who has also chaired the CANDU Owners Group on Severe Accident Management.  Prior to the issuance of Order PO-2858-I, he also provided the affidavit referred to earlier in this order.

In his affidavit responding to Order PO-2858-I, and to the questions I asked in the order provisions (reproduced above), the manager clarified that the following paragraph, quoted from OPG’s representations submitted prior to the order, “does apply to the records at issue themselves, not including additional information and/or explanations OPG may wish to provide … [emphasis added]”:

A knowledge of radionuclide release (as a function of time) could be used to target equipment and structures in a manner that would lead to rapid and large radiological impact to the environment and the public.  The source term data (in terms of radiological release as a function of time) could be used to both plan attacks to maximize impact against the public and to stymie off-site measures to mitigate the impact.

He states further:

The source term data tables present details of the radiological release (by radionuclide) as a function of time for various accident categories (Ex Plant Release Categories – EPRC).  This information, is inherently dangerous in the hands of a sinister individual or group of individuals with access to the necessary resources and the skill and sophistication to plan and launch an attack.

Information of any kind does not reside in a vacuum.  In conjunction with other available information such as the Pickering B Risk Assessment (PBRA) Summary Report, … obtained legitimately, and other information whether obtained legitimately or otherwise, persons with the malicious intent will be able to identify specific strategies in terms of the timing and sequencing of attacks and the identification of visible targets to achieve optimal damage to property, injury and loss of life.

In response, the appellant argues that OPG has not answered the question I posed, namely, whether the submission quoted above relates to the records at issue on their own, or only if they are combined with the additional information and/or explanations OPG has said it would feel compelled to provide if the source term data are disclosed.  This submission is plainly in error.  As quoted above, and repeated for convenience here, the affidavit states quite clearly that the submission in question “… does apply to the records at issue themselves, not including additional information and/or explanations OPG may wish to provide.”  (Emphasis added.)  This is apparent from a reading of the question and the affidavit, and OPG also makes this point in its reply representations.

The appellant also argues that OPG has not provided the additional information it was ordered to in Order PO-2858-I.  For this reason, the appellant submits that OPG has not discharged its onus of proof, which is set out in section 53 of the Act and places the burden of proof that an exemption applies on the head of the institution claiming the exemption. 

With respect, I disagree with the appellant’s contention that OPG has not provided additional information.  In my view, the representations quoted above, while somewhat general in nature, do provide additional information.  It is clear that OPG chose to keep the representations general to protect its own security interests, and those of the public.

The appellant also describes OPG’s evidence as “speculative” and “unsubstantiated.”  In that regard, I note that in Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3d) 197, the Divisional Court referred to “the difficulty of predicting future events in a law enforcement context,” which in its view requires that, generally, the law enforcement exemption must be approached in a sensitive manner.  As I stated in Order PO-2500, this also applies with respect to section 16, given the difficulty of predicting future events affecting the defence of Canada and other countries, particularly in the context of possible espionage, sabotage or terrorism.

In its reply representations, OPG makes this same point, illustrating it with the examples set out in the following paragraph:

Using words like “speculative” and “unsubstantiated” is not helpful in the context of security exemptions … when a precautionary or pre-emptive approach is required to prevent potentially catastrophic consequences.  What is speculative today is not tomorrow.  In 2001 no one would have thought someone who asked to be given flying lessons to just fly a plane but not land it would (1) receive flying lessons and (2) be able to direct two commercial jets into the World Trade Center and then bring the towers down.  It probably would have been considered speculative to think shoe laces could be used to blow up a plane or that underwear could become a potential lethal weapon.  In modern terrorism what may be speculative today can become a reality tomorrow.  The fact is that there are people with technical know-how who can be recruited to become saboteurs by sinister organizations fomenting terror.

In my view, these submissions underscore the need to approach section 16 in a sensitive manner, bearing in mind the difficulty of predicting future events in relation to espionage, sabotage or terrorism.

The appellant also refers to the letter from the Toronto Police Service that I mentioned above.  This letter was written by an individual assigned to the Public Safety and Emergency Management Unit, who states that his expertise is with response to incidents involving chemical, biological, radiological, nuclear and explosive material, who has reviewed the affidavits provided by the manager and concurs that the requested information should not be disclosed.  The appellant argues that, in effect, this is the issue that I must decide.  OPG disagrees with this assessment, stating that the author of the letter is simply stating his view, based on the affidavit, that the information should not be disclosed to protect public safety.  In my view, although the letter supports the position taken by OPG in this appeal, it is “based on” the manager’s affidavits and therefore does not add significantly to the weight of the evidence I must consider.

With its reply representations, however, OPG provides a further affidavit and letter in response to the appellant’s position outlined in the preceding paragraph.  The affidavit is provided by the director of Health Canada’s Radiation Protection Bureau (the director), who states he is responsible for Canada’s Federal Nuclear Emergency Plan and leader of the Radiological and Nuclear Science Cluster for the Government of Canada.

The director’s affidavit states:

I review risks and threats to Canadian Nuclear Facilities as part of my responsibilities for performing and supervising risk assessments for radiation and nuclear issues as the Director of the Federal Nuclear Emergency Plan.  Canada’s nuclear facilities (including nuclear reactor facilities) are a potential target for terrorists.

The radionuclide source terms are of interest to terrorist groups and others who would like to inflict damage on a nuclear facility and to harm the surrounding population.  For example, knowledge of the quantity of a specific radionuclide in the emissions … would enable a knowledgeable individual to target specific parts of a facility to maximize the release and impact of their attack.

It is my opinion that these radionuclide source terms that were developed for specific nuclear facilities should not be in a public document.  The information contained in these documents could be used to harm the public and to inflict intentional damage on a nuclear generating station.  The information would enable knowledgeable individuals with a malicious intent to develop strategies that could increase the impact of a terrorist attack.

Also attached to OPG’s reply representations is a letter from the Assistant Commissioner of National Security Criminal Investigations with the Royal Canadian Mounted police (R.C.M.P.), in which the Assistant Commissioner provides several examples of actual threats to nuclear power stations around the world, and goes on to state:

It is widely held that during the planning stages of a terrorist plot, actors gather as much information as possible on a target in order to identify potential vulnerabilities.  Sensitive information on the design specifications and safety protocols of Canadian nuclear power plants would undoubtedly guide and assist those who may be planning an attack against this infrastructure or similar infrastructure in other parts of the world.  Such information may also guide and assist those who may wish to incorporate radiological elements into their attack plan.  It is the RCMP’s opinion that such outcomes would pose a clear threat to national security.

In responding to the director’s affidavit and the R.C.M.P Assistant Commissioner’s letter provided with OPG’s representations, the appellant on sur-reply has provided representations accompanied by an affidavit from a technical and policy analyst in the fields of energy, environment, sustainable development, human security, and international security (the technical analyst).  As the appellant notes in its representations, the technical analyst agrees that nuclear facilities are potential targets of attack, and that information about design specifications and safety protocols could assist attackers.  In support of the appellant’s position, the technical analyst also states as follows:

… [T]he reason that information about design specifications and safety protocols of Canadian nuclear power plants could assist attackers is that these plants do not employ best-practice design in passive-safety principles and robustness against attack.

…

… [E]xcluding information about nuclear facilities from the public domain has a range of adverse societal impacts, including suppression of policy and technical debate about design of nuclear facilities to employ best practices in passive safety and robustness against attack.

…

… [I]nformation about radiological source terms (the magnitude and other characteristics of potential unplanned releases from nuclear facilities) could be released to the public domain without assisting attackers, and with benefit to public debate about the risks posed by nuclear facilities and the options for reducing those risks.

A considerable portion of the appellant’s representations at all stages of this inquiry are focused on the public interest in information relating to nuclear safety and the design, construction and operation of nuclear power plants.  The appellant also argues that, in addition to the CNSC’s role as a federal licensing authority in the nuclear arena, there is significant room for debate at the provincial level.  This submission also addresses the appellant’s view that disclosure of the source terms would be in the public interest.

In assessing section 16, however, the issue is whether disclosure “could reasonably be expected to prejudice the defence of Canada or of any foreign state allied or associated with Canada or be injurious to the detection, prevention or suppression of espionage, sabotage or terrorism.”  In other words, the analysis under section 16 is concerned with the public interest in non-disclosure to protect national security interests.  I will therefore discuss the appellant’s arguments about the public interest in disclosure of the records in the discussion of the public interest override and the exercise of discretion, below.

The statement by the technical analyst reproduced in the final quoted paragraph, above, that the information could be disclosed without assisting attackers does address the issue under consideration in the context of section 16.  This argument is amplified in both the appellant’s sur-reply representations and the technical analyst’s affidavit.

In that part of the appellant’s sur-reply representations and the affidavit, the point is made that knowledgeable individuals already know that particular substances are present in the reactor core or newly discharged spent fuel, and could calculate the amount present to reasonable accuracy based on publicly available data.  Although I accept this submission, I am not persuaded that, by itself, this is sufficient to undermine the OPG’s submissions to the effect that disclosure would result in public availability of detailed information about the emissions that would result from different accident categories, with the attendant dangers referred to by OPG.

To that end, the appellant’s sur-reply representations refer to the following passage from the technical analyst’s affidavit, which expresses disagreement with the argument that disclosing the record would reveal that type of information:

Source term information alone, not accompanied by information about the event sequence causing a particular source term, would not assist the development of an attack strategy.  [Emphasis added.]

Later in its representations, the appellant repeats the argument that the record “will not provide information about how an accident may occur, nor any information related to the potential for malicious action, nor any information about the mechanisms of how the Darlington or Pickering A or B nuclear facilities could be vulnerable to terrorist attack.”

At the end of its submissions, the appellant repeats that “OPG has still not met its onus with respect to its claim for a section 16 exemption in its argument that release of the source term data itself, without accompanying event sequences …” would meet the criteria for exemption under section 16.

This issue was also discussed in the evidence and argument provided to me before I issued Order PO-2858-I.  In that order, I summarized some of this evidence as follows:

The [manager, who also provided the affidavit described above in response to Order PO-2858-I] also explains in his affidavit that even the inclusion of EPRC categories, which, as I have explained, are included in the records at issue, does not make the source term data meaningful:

Source term data does not become more meaningful by being assigned to a specific Ex Plant Release Category (EPRC).  EPRC refers to various event sequences which can result in the release of radionuclides from the containment envelope to the environment with a potential impact on the public.  For the source term data, combined with the EPRC information to have any meaning, more detailed information around a particular event sequence would need to be included.  This would identify plant operating assumptions, credited mitigating system functions and failure modes.  This more complete package of information is what the CNSC, in its decision of April 2008, declined to order released because its disclosure may prejudice the security of Canadians.  [Emphasis added.]

In the context of its argument regarding the possible application of section 23, the OPG repeats its claim that the source term information is meaningless:

There is no public interest in the disclosure of meaningless information which becomes misleading if released without context and is misinterpreted and only becomes meaningful by additional explanation which a competent statutory authority has previously held to be unnecessary to the determination of matters of public safety and the protection of the environment.

The appellant submitted representations in response to those of the OPG in which it argues that the OPG’s claim to the exemption should not be upheld.  With respect to the OPG’s claim that the information requested by the appellant is meaningless, the appellant states that the source term data provides information only about the consequences of a leak from the nuclear power plant.  He disputes that the information is “meaningless” and states that using the information, a member of the public could commission modelling that would calculate the consequences of different types of nuclear accidents, and this could help inform the public understanding of the environmental and societal hazards posed by OPG’s nuclear stations.

The appellant interprets the OPG’s argument that the source term data is meaningless as implying that the appellant and the public will be unable to utilize the information in a meaningful context, an implication that the appellant disputes.  For example, in its supporting affidavit, the appellant’s representative states:

As a result of my experience, I am capable of understanding the requested information and can consider the source term data in context.  In addition, I have access to experts, and a great deal of knowledge and prior information in my own right, which enables the requested information to be put into context for the purposes of participation in public debates and proceedings. 

…

The statement “Disclosure of the information would, on its own, be misleading” (OPG Representations, page 12) assumes that members of the public or public interest organizations are unable to commission expert advice to produce reliable analysis.  This information could be contextualized by a discussion of the known uncertainties.  Public disclosure of information also permits public discussion of how the information should be interpreted.

Against the backdrop of this evidence, I must decide whether the source term data is exempt under section 16.  In that regard, I must consider what the records themselves contain, what other information is publicly available that could be co-related to the information in the records and the implications of such a co-relation, and whether, taken together, that information constitutes a sufficient level of risk of injury to the suppression of sabotage or terrorism, which in my view are the two greatest risks in the circumstances of this case, to create a “reasonable expectation” of these harms, which, if present, would justify withholding the information.

The appellant contends that the records do not disclose event sequences or other descriptions of how harm could be caused to trigger the emissions referred to in the records.  In that regard, it is important to consider what the records actually do reveal, and what information in the public domain could be co-related to that information.

The records themselves specify emission data in tables divided according to various Ex Plant Release Categories (or EPRCs), represented by category number.  Although they do not actually set out particulars of the event sequence that corresponds to each category number, this type of information is otherwise available and can be co-related to the information in the records.  For example, a detailed description of the Pickering B EPRCs (without the related source terms), using the same system of EPRC numbers as appears in the Pickering B source terms data in the records at issue, is available in Table 3 to the Pickering B Risk Assessment Summary Report released on November 14, 2008.

In this context, it is necessary to consider statements made by the manager in his affidavit provided prior to Order PO-2858-I.  For example, the manager’s statement, quoted above, that “[f]or the source term data, combined with the EPRC information to have any meaning, more detailed information around a particular event sequence would need to be included,” tends to undermine the view that the description of the EPRCs made public in the Pickering B Risk Assessment Summary Report, when combined with the information in the records, would pose a security risk.

While this statement was offered in support of the argument that the source term data should not be severed from the Probabilistic Risk Assessment, an argument I rejected in Order PO-2858-I, it must still be considered in the context of section 16.

On the other hand, the manager himself, and the authors of the other affidavits and letters provided by OPG, and quoted extensively above, are united in their view that the source terms on their own are sufficient to provide significant assistance to terrorists and others with nefarious intent.  For example, part of the affidavit provided by the director of Health Canada’s Radiation Protection Bureau contains the following statement, reproduced above, which bears repeating here:

The radionuclide source terms are of interest to terrorist groups and others who would like to inflict damage on a nuclear facility and to harm the surrounding population.  For example, knowledge of the quantity of a specific radionuclide in the emissions … would enable a knowledgeable individual to target specific parts of a facility to maximize the release and impact of their attack.

In addition, the appellant’s own submissions state that the source term data would provide information that could contribute meaningfully to the assessment of risk associated with the facilities referred to in the records.

As well, although I did not accept OPG’s argument that the doctrine of issue estoppel applies to the records at issue on the basis of previous findings of the CNSC, I find it to be both relevant and persuasive that the CNSC, a body charged with protecting the public interest in the licensing of nuclear power facilities, has previously refused the appellant’s request for access to a record containing the source term data at issue in this appeal for the Pickering B facility.  As already noted, this occurred during a CNSC licence renewal hearing, during which the appellant was an intervenor.  The CNSC denied access on the grounds that disclosure “may be prejudicial to the security interests of Canadians.”[1] 

Having carefully reviewed the records, the representations and the description of EPRC categories in the Pickering B Risk Assessment Summary Report, I am satisfied that the description of event sequences for each EPRC is sufficient, in combination with information in the records, to produce the risks described by OPG, the manager and the director in their affidavits.  In addition, based on the evidence provided by OPG, I am satisfied that the source term data could reasonably be expected to assist those with malicious intent in planning acts of sabotage or terrorism with greater efficiency and more deadly effect.

In the circumstances of this appeal, and bearing in mind that the standard of proof for this exemption is lower than the “detailed and convincing” evidence required elsewhere, and the need for a sensitive approach given the difficulty of predicting events in the context of sabotage and terrorism, I have therefore decided that the evidence before me is sufficient to demonstrate that disclosure of the records into the public domain could reasonably be expected to be injurious to the suppression of sabotage or terrorism.  The consequence of this conclusion is that the records are exempt under section 16.

This conclusion is reinforced by the appellant’s own submissions to the effect that it would find the information meaningful and of assistance in the public debate concerning the degree of risk associated with the nuclear facilities.  Indeed, if no information were publicly available describing event sequences that co-relate in a meaningful way to the information in the records, it is difficult to comprehend how the information could in fact be used by the appellant for the type of analysis that it clearly intends to carry out using this data.

I also note that previous orders have found that technical information about nuclear energy, of a similar nature to the records at issue in this appeal, is either exempt under section 16 or that its disclosure would raise national security concerns.  In Order PO-2500, I found that:

… disclosure of records or parts of records setting out detailed technical information about the nuclear and related operations of the Bruce facility could reasonably be expected to “… prejudice the defence of Canada … or be injurious to the detection, prevention or suppression of espionage, sabotage or terrorism.”

In Order PO-2072-F, former Assistant Commissioner Tom Mitchinson dealt with a request for “[a]ll documents from Jan. 1, 1995 to present on the use of plutonium/MOX as fuel at Ontario Hydro.”  Section 16 was not at issue in Order PO-2072-F, but the order provides helpful guidance because, in the context of section 23 of the Act, the former Assistant Commissioner considered whether there was a public interest in non-disclosure that was sufficient to overcome the compelling public interest in disclosure that he had identified for some of the records.  The identified public interest in non-disclosure was the threat to Canada’s national security that would result from disclosure.  This interest closely resembles the one protected by section 16.

For all these reasons, I find that section 16 applies to exempt the records, in their entirety, from disclosure.

SECURITY

Section 14(1)(i) states:

A head may refuse to disclose a record where the disclosure could reasonably be expected to,

endanger the security of a building or the security of a vehicle carrying items, or of a system or procedure established for the protection of items, for which protection is reasonably required;

The threat to the security of buildings that is at the heart of OPG’s section 14(1)(i) claim relates to potential terrorism or sabotage.  The arguments of both parties on sections 14(1)(i) and 16 are closely related and I have considered all of them in reaching my decision on section 16.

As with section 16, the appellant argues that OPG has not met its onus under section 14(1)(i).  Although the standard of proof for a reasonable expectation of harm may be higher under section 14 than it is under section 16, it remains the case that section 14 must be approached in a sensitive manner, recognizing the difficulty of predicting future events in a law enforcement context (Fineberg, cited above).

In my view, for the same reasons that I found the records exempt under section 16, because disclosure could reasonably be expected to prejudice the defence of Canada or be injurious to the detection, prevention or suppression of espionage, sabotage or terrorism, I find that disclosure could reasonably be expected to endanger the security of a building, for which protection is reasonably required, as contemplated in section 14(1)(i).  Accordingly, I find that this exemption also applies.

ECONOMIC AND OTHER INTERESTS

OPG relies on sections 18(1)(a), (c), (d) and (e).  These sections state:

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;

(d)       information where the disclosure could reasonably be expected to be injurious to the financial interests of the Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario;

(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 purpose of section 18 is to protect certain economic interests of institutions.  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) explains the rationale for including a “valuable government information” exemption in the Act:

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.

For sections 18(1)(b), (c), or (d) to apply, OPG must demonstrate that disclosure of the record “could reasonably be expected to” lead to the specified result.  To meet this test, the institution 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. (3d) 464 (C.A.)].

The need for public accountability in the expenditure of public funds is an important reason behind the need for “detailed and convincing” evidence to support the harms outlined in section 18 [Orders MO-1947 and MO-2363]. 

Parties should not assume that harms under section 18 are self-evident or can be substantiated by submissions that repeat the words of the Act [Order MO-2363].

Section 18(1)(a)

For section 18(1)(a) to apply, the institution must show that the information:

1.         is a trade secret, or financial, commercial, scientific or technical information,

2.         belongs to the Government of Ontario or an institution, and

3.         has monetary value or potential monetary value.

Requirement 1

OPG submits that the source term data are both scientific and technical information.  These terms have been defined in previous orders as follows:

Scientific information is information belonging to an organized field of knowledge in the natural, biological or social sciences, or mathematics.  In addition, for information to be characterized as scientific, it must relate to the observation and testing of a specific hypothesis or conclusion and be undertaken by an expert in the field [Order PO-2010].

Technical information is information belonging to an organized field of knowledge that would fall under the general categories of applied sciences or mechanical arts.  Examples of these fields include architecture, engineering or electronics. While it is difficult to define technical information in a precise fashion, it will usually involve information prepared by a professional in the field and describe the construction, operation or maintenance of a structure, process, equipment or thing [Order PO-2010].

OPG submits that the source term data belong to an organized field of knowledge in natural science, and that this information relates to observation and hypotheses by experts it retained.  On this basis, OPG submits that the information qualifies as “scientific.”  It also submits that the full PRA (probabilistic risk assessment) falls into the categories of applied science or mechanical arts and therefore qualifies as technical information.

The appellant submits that the source terms do not relate to the observation or testing of a scientific hypothesis or conclusion, and are therefore not scientific information.  With respect to technical information, the appellant submits that its request is for the source terms, not the full PRA.

In my view, it is clear that the source terms, which are projections of the likely release of radioactive components in the event of a variety of different accident scenarios, relates to the observation and testing of a hypothesis or conclusion undertaken by experts in the field retained by OPG.  It is untenable to suggest that this type of data is not scientific information.

I agree with the appellant that the PRA is not at issue, and OPG’s submission that the source terms are technical information is not supported by specific evidence or argument about the source term data.

However, the finding that this is scientific information is sufficient to meet requirement 1.

Requirement 2

OPG submits that the source term data were developed at its expense and are owned by it.

The appellant argues that the information is not owned by the government of Ontario, but I note that section 18(1)(a) also refers to information that belongs to an institution, a category which includes OPG. 

However, the term “belongs to” requires more than the right simply to possess, use or dispose of information, or control access to the physical record in which the information is contained.  For information to “belong to” an institution, the institution must have some proprietary interest in it either in a traditional intellectual property sense – such as copyright, trade mark, patent or industrial design – or in the sense that the law would recognize a substantial interest in protecting the information from misappropriation by another party [Order PO-1763].

OPG’s representations do not address this aspect of requirement 2, and I find that it is not met.

Requirement 3

OPG submits that disclosure would diminish the value of its nuclear assets by making them more open to attack, and that it expended skill and effort to develop the information, giving it inherent value.  The manager’s affidavit describes the source terms as “integral to the PRA.”

To have “monetary value,” the information itself must have an intrinsic value.  The purpose of this section is to permit an institution to refuse to disclose a record where disclosure would deprive the institution of the monetary value of the information [Orders M-654 and PO-2226].

The fact that there has been a cost to the institution to create the record does not mean that it has monetary value for the purposes of this section [Orders P-1281 and PO-2166].  In addition, the fact that the information has been kept confidential does not, on its own, establish this exemption [Order PO-2724].

Based on the brief submissions of OPG concerning this aspect of section 18(1)(a), I am not satisfied that disclosing the source terms could reasonably be expected to deprive OPG of the value of the source term data itself.  This is a different question than whether disclosure could damage OPG’s nuclear assets.

In summary, I find that requirements 2 and 3 are not met based on the arguments and evidence provided by OPG.  Since all three requirements must be met for section 18(1)(a) to apply, I find that it does not.

Sections 18(1)(c) and (d)

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 [Orders P-1190 and MO-2233].

This exemption is arguably broader than section 18(1)(a) in that it 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 [Orders PO-2014-I, MO-2233, MO-2363, PO-2632 and PO-2758].

Given that one of the harms sought to be avoided by section 18(1)(d) is injury to the “ability of the Government of Ontario to manage the economy of Ontario,” section 18(1)(d), in particular, is intended to protect the broader economic interests of Ontarians [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].

OPG argues that disclosure could reasonably be expected to prejudice its economic interests and/or competitive position based on a terrorist attack, threat of attack, or extortion.  OPG submits that an attack would disrupt OPG’s revenue flow [section 18(1)(c)], and would also affect the financial interests of the government and its ability to manage the Ontario economy since Pickering and Darlington generate approximately 20% of Ontario’s electricity generation capacity [section 18(1)(d)].  The dollar amounts of revenue and the power generated by these nuclear plants are described in more detail in the manager’s affidavit.

With respect to the particular records at issue here, I am not satisfied that this evidence satisfies the threshold of “detailed and convincing”; rather, it is generalized and speculative, and OPG appears to assume that a reasonable expectation of these harms is self-evident if the records are disclosed.

In my view, what is self-evident is that these harms would result from any successful terrorist attack on a nuclear power station, which could occur with or without the disclosure of these records.  Under section 18(1)(c) and (d), however, OPG must provide detailed and convincing evidence to explain how disclosure of these particular records could reasonably be expected to make the economic impact of an attack on a nuclear power station more significant than the impact that would obviously result from any successful attack.  This is not specifically addressed in OPG’s representations. 

As the appellant points out, “this argument is very far removed from the disclosure of the source term data at issue in this appeal….”   I am not satisfied, based on the evidence and argument before me, that in the context of an attack on a nuclear power facility, the economic harms mentioned in section 18(1)(c) and (d) depend on, or could reasonably be expected to flow from, the disclosure of these particular records. 

OPG also argues that if it reveals the source term data alone, this would “predict radiological consequences that would be at variance with OPG’s own estimates of such impacts” and that this would lead to misleading allegations that its facilities are “unsafe,” requiring a public response and the disclosure of additional information that would allegedly assist those interested in damaging the facilities and/or creating panic.  I am not persuaded by these bald and highly speculative assertions, which in my view are not sufficient to demonstrate that these consequences could reasonably be expected to flow from disclosure of the same data that OPG uses to make its own predictions.

For all these reasons, I find that sections 18(1)(c) and (d) do not apply.

Section 18(1)(e)

In order for section 18(1)(e) to apply, the institution must show that:

1.         the record contains positions, plans, procedures, criteria or instructions,

2.         the positions, plans, procedures, criteria or instructions are intended to be applied to negotiations,

3.         the negotiations are being carried on currently, or will be carried on in the future, and

4.         the negotiations are being conducted by or on behalf of the Government of            Ontario or an institution [Order PO-2064].

OPG does not provide representations that address the requirements of this section.  As is evident from its wording, and the requirements listed above that derive directly from the legislative text, it is clear that section 18(1)(e) was intended to apply in the context of negotiations.  There is no evidence before me to suggest the existence of any negotiations to which the information in the records could apply now or in the future.

I find that section 18(1)(e) does not apply.

PUBLIC INTEREST IN DISCLOSURE/EXERCISE OF DISCRETION

Having found that the discretionary exemptions provided by sections 16 and 14(1)(i) apply to the records, I now turn to the issues of the public interest in disclosure and the exercise of discretion.

The statutory “public interest override” is found in section 23 of the Act.  This section states:

An exemption from disclosure of a record under sections 13, 15, 17, 18, 20, 21 and 21.1 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

For section 23 to apply, two requirements must be met.  First, there must be a compelling public interest in disclosure of the records.  Second, this interest must clearly outweigh the purpose of the exemption.

Any public interest in non-disclosure that may exist also must be considered [Ontario Hydro v. Mitchinson, [1996] O.J. No. 4636 (Div. Ct.)].  If there is a significant public interest in the non-disclosure of the record then disclosure cannot be considered “compelling” and the override will not apply [Orders PO-2072-F and PO-2098-R].

In this case, I have found the records exempt under sections 14(1)(i) and 16 of the Act.  These exemptions are not subject to the public interest override because they are not listed in section 23.  If they were, the appellant’s public interest arguments would have to be considered in deciding whether there is a compelling public interest in disclosure that would outweigh the purpose of these exemptions.

In Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, the Supreme Court of Canada found that section 23 was not constitutionally underinclusive for its omission of sections 14 (law enforcement) and 19 (solicitor-client privilege) as exemptions that can be overridden.  That case did not involve section 16, and dealt with the guarantee of freedom of expression found in section 2(b)  of the Canadian Charter of Rights and Freedoms .

In making its decision, the Court found that the public interest must be considered in deciding whether to grant disclosure even though a discretionary exemption would apply.  The Court stated as follows (at paras. 45-49):

However, by stipulating that “[a] head may refuse to disclose” a record in this category, the legislature has also left room for the head to order disclosure of particular records.  This creates a discretion in the head.

A discretion conferred by statute must be exercised consistently with the purposes underlying its grant: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (S.C.C.), [1999] 2 S.C.R. 817, at paras. 53, 56 and 65.  It follows that to properly exercise this discretion, the head must weigh the considerations for and against disclosure, including the public interest in disclosure.

By way of example, we consider s. 14(1)(a) where a head “may refuse to disclose a record where the disclosure could reasonably be expected to ... interfere with a law enforcement matter”. The main purpose of the exemption is clearly to protect the public interest in effective law enforcement.  However, the need to consider other interests, public and private, is preserved by the word “may” which confers a discretion on the head to make the decision whether or not to disclose the information.

In making the decision, the first step the head must take is to determine whether disclosure could reasonably be expected to interfere with a law enforcement matter.  If the determination is that it may, the second step is to decide whether, having regard to the significance of that risk and other relevant interests, disclosure should be made or refused.  These determinations necessarily involve consideration of the public interest in open government, public debate and the proper functioning of government institutions.  A finding at the first stage that disclosure may interfere with law enforcement is implicitly a finding that the public interest in law enforcement may trump public and private interests in disclosure.  At the second stage, the head must weigh the public and private interests in disclosure and non-disclosure, and exercise his or her discretion accordingly.

The public interest override in s. 23 would add little to this process. Section 23 simply provides that exemptions from disclosure do not apply “where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption”.  But a proper interpretation of s. 14(1) requires that the head consider whether a compelling public interest in disclosure outweighs the purpose of the exemption, to prevent interference with law enforcement. If the head, acting judicially, were to find that such an interest exists, the head would exercise the discretion conferred by the word “may” and order disclosure of the document.

[Emphases added.]

This passage clarifies that the public interest is to be taken into account in the exercise of discretion.  Accordingly, in this case, the focus must shift to whether OPG took this factor into account in deciding not to disclose the records, and whether it exercised its discretion reasonably, weighing factors for and against disclosure, including legislative purpose.

As noted in Ontario Hydro (cited above), there can be a public interest in both disclosure and non-disclosure, and it is clear that both of these are relevant in the present appeal, given the importance of nuclear safety and public discussion of that subject, on the one hand, and the importance of avoiding inappropriate disclosure of sensitive information that could be detrimental to public safety and national security on the other.  Accordingly, in assessing the exercise of discretion, both of these public interests must be taken into account.

In Criminal Lawyers’ Association (cited above), the Court confirmed the Commissioner’s power to review a head’s exercise of discretion (at para. 68):

The Commissioner’s review, like the head’s exercise of discretion, involves two steps.  First, the Commissioner determines whether the exemption was properly claimed.  If so, the Commissioner determines whether the head’s exercise of discretion was reasonable.

The Court described the Commissioner’s powers in more detail as follows (at para. 71):

The Commissioner may quash the decision not to disclose and return the matter for reconsideration where: the decision was made in bad faith or for an improper purpose; the decision took into account irrelevant considerations; or, the decision failed to take into account relevant considerations

As noted by OPG in its representations, previous orders of this office have emphasized the importance of transparency in matters concerning the safety of nuclear power facilities.

In the context of the public interest override found in section 23 of the Act, former Commissioner Tom Wright discussed the issue of nuclear safety and the public interest in Order P-270.  In considering whether there was a compelling public interest in disclosure of nuclear safety related information, he stated:

In my view, there is a need for all members of the public to know that any safety issues related to the use of nuclear energy which may exist are being properly addressed by the institution [Hydro] and others involved in the nuclear industry.  This is in no way to suggest that the institution is not properly carrying out its mandate in this area.  In this appeal, disclosure of the information could have the effect of providing assurances to the public that the institution and others are aware of safety related issues and that action is being taken.  In the case of nuclear energy, perhaps unlike any other area, the potential consequences of inaction are enormous.

I believe that the institution, with the assistance and participation of others, has been entrusted with the task of protecting the safety of all members of the public.  Accordingly, certain information, almost by its very nature, should generally be publicly available.

In view of the above, it is my opinion that there is a compelling public interest in the disclosure of nuclear safety related information.

Former Assistant Commissioner Irwin Glasberg dealt with the issue of nuclear safety in Order P-901, which also involved Hydro.  In that case, he found that records prepared by a working group involved in nuclear emergency planning qualified for exemption under section 12 of the Act (Cabinet records), which is not subject to the section 23 public interest override.  However, he went on to state that:

Were it not for the fact that the records at issue are subject to the Cabinet records exemption, I would have had no hesitation in finding that there exists a compelling public interest in the disclosure of these documents which clearly outweighs the purposes of the exemptions found in the Act.

Former Assistant Commissioner Tom Mitchinson dealt with the issue in Order P-1190, which involved a request for Peer Review Evaluations prepared for Ontario Hydro.  In assessing the public interest in disclosure of those records, he stated:

It is clear that public concerns regarding the safety of nuclear facilities was the impetus behind the creation of Hydro’s Peer Evaluation Program.  In my view, it is not possible to allay these concerns by merely advising the public that reviews of nuclear operations are conducted against the highest possible standards.  This simply does not provide enough information for the public to assess the adequacy of the program in meeting its objectives.  I am unable to accept Hydro’s position that the results of the Peer Evaluation Program should not be disclosed to the very public whose concerns about nuclear safety the Program was designed to allay.

Senior Adjudicator David Goodis also found a compelling public interest in disclosure of records about the safety of nuclear power facilities in Order PO-1805.  He stated:

Clearly, the two peer review reports (Records 2 and 3) are very similar in nature to the records at issue in Order P-1190, and thus the principles from that decision apply here.  Further, I do not accept [the World Association of Nuclear Operators (WANO)]’s submission that the Trip report (Record 1) is distinguishable from the other two records for the purposes of determining whether or not there is a compelling public interest in its disclosure.  Record 1 concerns the application of “probabilistic risk assessment” resulting from specific activities, the purpose of which is to assess the likelihood and consequences of an accident at a nuclear facility.  There is no question that this document relates directly to the public’s ability to consider, assess and make informed political choices with respect to the safety of Hydro’s nuclear facilities.  The fact that Record 1 deals with “best international practice” as opposed to “minimum regulatory standards” does not alter its essential character.  I find no significant qualitative distinction between Record 1 and Records 2/3 for the purpose of the “compelling public interest” analysis.

…

… There is certainly a compelling public interest in disclosure of previously unknown problems; and, to the extent that these problems are already known, there is a compelling public interest in being able to compare this information with other available information, and to scrutinize Hydro’s responses to these safety issues.  In addition, it is important for the public to be fully aware not only of the nature of the problems and the responses, but of the root causes as well, by having a more complete picture of the safety issues at the facilities.  As I have said, this information will contribute greatly to bureaucratic and democratic accountability in this critical area of public concern.

Accordingly, I find that there is a compelling public interest in disclosure of the records at issue.

As OPG points out, IPC jurisprudence, as exemplified in Order PO-2500, began to take a more cautious approach to nuclear safety issues following the terrorist attacks of September 11, 2001, and all of the orders just quoted were issued before that.  Nevertheless, these authorities are still relevant to the issue of nuclear safety and they are illustrative of the significant public importance of ensuring that such facilities are safely built and operated.  In addition, I note that in Order PO-2072-F, issued November 22, 2002, former Assistant Commissioner Mitchinson still found that there was a compelling public interest in disclosure of information about nuclear safety, though he also found that, in some instances, there was a more compelling interest in non-disclosure to protect national security. 

In its representations submitted throughout this inquiry, the appellant has raised the following points concerning the public interest:

•         excluding information about nuclear facilities from the public domain has adverse societal impacts including suppression of policy and technical debate about design of nuclear facilities to employ best practices;

•         the reason information about design specifications and safety protocols of Canadian nuclear power plants could assist attackers is that these plants do not employ best-practice design in passive safety principles and robustness against attack;

•         repeated public discussion is critical to ensure more robust plans for nuclear facilities, safer operation and to ensure public confidence;

•         it is the public that bears the risks associated with a potential nuclear accident;

•         although some information about the safety of nuclear power plants has been made public, it is inadequate;

•         secrecy concerning the consequences of an accident does not protect the public, but simply hides possible consequences from public view;

•         disclosure of the source term data would add to information the public has about the consequences of serious accidents, which is centrally relevant to public opinion, public policy debate and political choices;

•         information about potential consequences of accidents or malicious acts, such as those provided by source term data, are essential to public discussion of the “pros” and “cons” debate, as well as public debate on risks and risk reduction concerning nuclear facilities;

•         disclosure would facilitate public discussion about whether to close or refurbish existing nuclear power plants;

•         without disclosure of information about potential accidents, there may be narrow consideration of risks by operators, and reduced public scrutiny;

•         some source term data has been disclosed in the past;

•         as noted in Order P-1190, it is not possible to allay public concern by simply providing assurances that reviews of nuclear operations are conducted against the highest possible standards;

•         in addition to CNSC, there are important issues to debate at the provincial level; for example, the choice of “electricity mix”; and

•         the purpose of the request is for public policy debate.

In relation to the public interest, OPG has consistently taken the position that the public interest in non-disclosure outweighs the public interest in disclosure.  In OPG’s representations submitted throughout this inquiry, OPG has raised the following points touching on the public interest:

•         effective risk management and protection of public safety demands that measures be taken to prevent identifiable security threats before they materialize;

•         after the terrorist attacks of September 11, 2001 and other attacks on public facilities, OPG decided to remove detailed information about safety assessments on nuclear facilities, such as the full PRA, to avoid attacks on its facilities, which would be to the detriment of both OPG and the public;

•         IPC precedents (Orders P-1190 and PO-1805) clearly establish that the public interest in nuclear safety demands maximum transparency, but especially after September 11, 2001, the IPC has supported a cautious approach to public disclosure, withholding information that could compromise plant or national security (Orders PO-2072-F, PO-2500);

•         IPC decisions such as Order P-1190 that emphasize the public interest in disclosure of information about nuclear safety were all decided before September 11, 2001, which had a significant impact on the public interest in relation to the security exemption such that concerns once labelled speculative are now significantly more compelling;

•         the primary forum for public probing of nuclear safety issues is the CNSC;

•         part of CNSC’s mandate is to “prevent unreasonable risk to the health and safety of persons …” and to “prevent unreasonable risk to national security”;

•         CNSC has previously denied access to the PRA containing the Pickering B Source Terms because disclosure of the information may be prejudicial to the security of Canadians and was not essential for effective intervention in the re-licensing hearing concerning Pickering B because of the continued availability of other comprehensive and relevant information;

•         if the whole PRA would not assist the appellant or intervenors in the context of the CNSC hearing, one small component of it – namely the source term data – would be of even less assistance in any meaningful assessment or public debate of the issues of environmental impact and public safety;

•         the harm that would ensue if the requested information falls into the hands of trained terrorists would be catastrophic;

•         the source term data gives saboteurs and terrorists the ability to both create rapid and large scale radiological impact and stymie off-site measures to mitigate the impact;

•         disclosure of the source terms would require OPG to provide further contextual information that would pose a threat to the nuclear facilities; and

•         no public interest is served by disclosing information that would be misleading without further explanation.

In addition, OPG’s initial representations in the appeal refer to the Convention on the Physical Protection of Nuclear Material ratified by Canada on March 21, 1986, including “Convention L,” which states:

The State should establish requirements for protecting the confidentiality of information, the unauthorized disclosure of which could compromise the safety of nuclear material.

The appellant expressly criticizes OPG’s exercise of discretion, arguing that it exercised its discretion for an improper purpose, namely that the public is not able to “handle” information about the consequences of severe accidents and should “trust” OPG to manage risks.  Further, it argues that OPG has taken irrelevant considerations into account by arguing that disclosure of the source term data increases the risk of malicious action, and has failed to consider relevant considerations such as the high importance and value of potential consequences for public debate.

The appellant’s argument that OPG’s position amounts to a statement that the public cannot “handle” information about nuclear safety or should “trust” OPG to manage risks appears to arise from OPG’s reliance, in its representations on the exercise of discretion, on the view that the source term data would require further explanation if disclosed.  I do not agree with the appellant’s view that this is an “improper” purpose, but I do find it to be an irrelevant consideration in the exercise of discretion.  In Order PO-2858-I, I rejected it as a basis for finding that the source terms could not be severed from the PRA, finding instead that they do constitute records that can be requested under the Act.  Moreover, OPG’s own representations about the use to which the source terms could be put by those with nefarious intent, which I have accepted in finding that sections 14(1)(i) and 16 apply, also belie the notion that, in and of themselves, the source terms do not contain significant information that can be understood without the need for further explanation by OPG.  For these reasons, I find that OPG took an irrelevant factor into account in its exercise of discretion.

With respect to the appellant’s suggestion that the OPG’s concern about malicious use is an irrelevant consideration, I have found the OPG’s evidence on that point sufficient to uphold the application of sections 14(1)(i) and 16, and therefore consider it relevant here.

The summary of OPG’s position on the public interest, above, is gleaned from the totality of its representations on all the issues in this appeal.  Its representations specifically directed at the exercise of discretion do not even mention the public interest in disclosure.  Viewed from that perspective, the evidence supports a conclusion that when OPG initially exercised its discretion to deny access, it failed to consider the issue of the public interest in disclosure, and by doing so, failed to take into account a vitally relevant factor.

Even viewed as a totality, OPG’s representations give little weight to the notion that the public has a significant role to play in decisions about nuclear safety or the expansion or continuation of Ontario’s nuclear power program.  Taken as a whole, the impression given by these representations is that there is no valid public purpose to be served by the dissemination of detailed information that would permit informed public debate.  Rather, the only public interest given serious consideration by OPG was the public interest in non-disclosure in order to protect public safety.  While this remains a valid consideration, it is distinct from the public interest in disclosure, which must also be considered in exercising discretion under the Act.

Most significantly, and through no fault of its own, OPG was not able to consider the impact of recent events in Japan in deciding whether to disclose the records in the public interest, since they had not occurred yet when it provided its representations in this appeal.  The impact on public policy wrought by the terrorist attacks of September 11, 2001 demonstrates how public policy can be affected by world events, and there is no avoiding the significance of the nuclear crisis now underway in Japan as a consequence of the recent earthquake and tsunami.

In my view, in these circumstances, it is appropriate to order OPG to re-exercise its discretion in this case, taking into account the public interest in disclosure of detailed information that would permit informed public debate, bearing in mind all of the appellant’s points concerning that public interest, as summarized above; the discussion in Orders P-270, P-901, P-1190, PO-1805 and PO-2072-F; and also taking into account the significance of the events now unfolding in Japan, which in my view underline the vital necessity for informed public debate about nuclear safety issues.

If required by OPG in order to obtain Cabinet approval to disclose the records, in view of the wording of section 16, it may contact me to request additional time to respond to this order.

ORDER:

1.                  I order OPG to re-exercise its discretion in the manner outlined above, and to inform the appellant and myself of the outcome of that re-exercise, and the factors it has considered, on or before April 21, 2011.

2.                  If OPG continues to deny access to the records, I will invite the appellant to comment on OPG’s re-exercise of discretion and issue a further order determining whether the re-exercise was reasonable.

Original signed by:                                                                        March 31, 2011               

John Higgins