Information and Privacy Commissioner, Ontario, Canada

Commissaire à l’information et à la protection de la vie privée, Ontario, Canada

ORDER MO-3155

Appeal MA14-77

Corporation of the City of Orillia

January 27, 2015

Summary: The Corporation of the City of Orillia (the city) received an access request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) for two specified environmental reports prepared for a private landowner’s property that the city was considering for purchase. The city denied access to the records, citing the mandatory third party information exemption in section 10(1), as well as the discretionary exemptions in sections 6(1)(b) (closed meeting ) and 7(1) (advice or recommendations). This order upholds the city’s decision that the records are exempt under section 10(1) and finds that the public interest override in section 16 does not apply.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, sections 10(1)(b) and 16.

OVERVIEW:

[1] The Corporation of the City of Orillia (the city) received an access request under the Municipal Freedom of Information and Protection of Privacy Act  (MFIPPA  or the Act ) for two specified environmental reports dated January 2012 and July 20, 2012.

[2] The city identified two records responsive to the request and issued a decision to deny access to both of the records, citing sections 6(1)(b) (closed meeting) and 7(1) (advice or recommendations) of the Act .

[3] The requester, now the appellant, appealed the city’s decision to deny access.

[4] During mediation, the city confirmed with the mediator that it is applying sections 6(1) (b) and 7(1)  of the Act  to the two records at issue. The city also advised the mediator that, in addition to those two sections, it is raising the possible application of the mandatory third party information exemption in section 10(1)  of the Act  to both of the records in this appeal.

[5] The appellant advised the mediator that he is raising section 16  of the Act  as an issue in this appeal, as he believes that such records contain information that raises a public interest.

[6] As mediation did not resolve the issues in this appeal, the file was transferred to the adjudication stage of the appeals process where an adjudicator conducts an inquiry. I sent Notices of Inquiry to the city and to three third parties, comprised of the owner of the property and the authors of the two reports, seeking their representations.

[7] I received representations from the city and the owner of the property (the affected party). The second third party (the author of one report) agreed with the city’s representations and the remaining third party (the author of the second report) did not provide representations. I sent a copy of the city’s representations to the appellant, along with a Notice of Inquiry. Appendix A, G and H of the city’s representations and all of the affected party’s representations were withheld from the appellant due to confidentiality concerns. The appellant did not provide representations in response.

[8] In this order, I uphold the city’s decision that the records are exempt under section 10(1) and find that the public interest override in section 16 does not apply.

RECORDS:

[9] The city identifies the records at issue as follows:

• • Record #1 - Environmental Due Diligence Investigation Report, dated January, 2012.
• • Record #2 - Environmental Reports Peer Review, dated July 20, 2012.

ISSUES:

1. A. Does the mandatory third party information exemption at section 10(1) apply to the records?
2. B. Is there a compelling public interest in disclosure of the records that clearly outweighs the purpose of the section 10(1) exemption?

DISCUSSION:

A. Does the mandatory third party information exemption at section 10(1) apply to the records?

[10] The city and the affected party rely on sections 10(1)(b) and (c), which read:

A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, if the disclosure could reasonably be expected to,

(b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied;

(c) result in undue loss or gain to any person, group, committee or financial institution or agency; or

[11] Section 10(1) is designed to protect the confidential informational assets of businesses or other organizations that provide information to government institutions.¹ Although one of the central purposes of the Act  is to shed light on the operations of government, section 10(1) serves to limit disclosure of confidential information of third parties that could be exploited by a competitor in the marketplace.²

[12] For section 10(1) to apply, the institution and/or the third party must satisfy each part of the following three-part test:

1. 1. the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and
2. 2. the information must have been supplied to the institution in confidence, either implicitly or explicitly; and
3. 3. the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in paragraph (a), (b), (c) and/or (d) of section 10(1) will occur.

Part 1: type of information

[13] The city states that both records contain scientific and/or technical information relating to environmental testing that occurred at a specific address and that this information includes soil and ground water analysis.

[14] These types of information listed in section 10(1) have been discussed in prior orders:

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.³

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.⁴

[15] Based on my review of the records, I agree with the city that the records reveal scientific and technical information. In particular, the records contain soil and groundwater analyses prepared by engineering and environmental experts. This information includes the observation and testing of the soil and groundwater and qualifies as scientific information. It also includes information prepared by engineers describing the operation of the soil and groundwater testing which represents technical information within the meaning of section 10(1). Therefore, part 1 of the test under section 10(1) has been met.

Part 2: supplied in confidence

Supplied

[16] The requirement that it be shown that the information was supplied to the institution reflects the purpose in section 10(1) of protecting the informational assets of third parties.⁵

[17] Information may qualify as supplied if it was directly supplied to an institution by a third party, or where its disclosure would reveal or permit the drawing of accurate inferences with respect to information supplied by a third party.⁶

[18] The city states that both records were supplied to the city by a third party after the city obtained consent from the owner of the property to conduct environmental testing.

[19] Based on my review of the records and the representations of the city and the affected party, I find that the two records were directly supplied by the authors of the reports to the city, with the permission of the affected party.

In confidence

[20] In order to satisfy the in confidence component of part two, the parties resisting disclosure must establish that the supplier had a reasonable expectation of confidentiality, implicit or explicit, at the time the information was provided. This expectation must have an objective basis.⁷

[21] In determining whether an expectation of confidentiality is based on reasonable and objective grounds, it is necessary to consider all the circumstances of the case, including whether the information was

• • communicated to the institution on the basis that it was confidential and that it was to be kept confidential
• • treated consistently in a manner that indicates a concern for its protection from disclosure by the affected person prior to being communicated to the government organization
• • not otherwise disclosed or available from sources to which the public has access
• • prepared for a purpose that would not entail disclosure⁸

[22] The city states that there was an explicit expectation of confidentiality by the owner of the property as set out in Paragraph K of Schedule B of the Agreement of Purchase and Sale which states as follows:

The Purchaser⁹ agrees to use all reasonable means to keep the information and materials received from the Vendor¹⁰ or resulting from inspections and testing of the Vendor's property, from being disclosed to unauthorized parties and shall use such information and materials exclusively for the purpose of assisting the Purchaser in completing its due diligence with respect to this Agreement. The Purchaser shall not disclose such information or materials except as required by law.

[23] The city states that subsequent to the completion of Record #1, it exercised its rights under the Agreement of Purchase and Sale and terminated the purchase of the property. Following the termination of the agreement, it states that staff of the city obtained permission from the affected party to have additional testing done on the property. The city states that the affected party granted consent to provide a copy of the record to the city on the basis that the additional testing/report (i.e. Record #2) would also remain confidential, in accordance with the confidentiality clause set out in the Agreement of Purchase and Sale.

[24] The city also points out that there is a clause in Record #1 regarding confidentiality under the Statement of Qualifications and Limitations section, which reads:

Except (1) as agreed to in writing by Consultant¹¹ and Client¹²; (2) as required by-law; or (3) to the extent used by governmental reviewing agencies for the purpose of obtaining permits or approvals, the Report and the information may be used and relied upon only by Client.

[25] With respect to Record #2, the city points out that the report is marked CONFIDENTIAL.

[26] Based on my review of the records and the representations of the city and the affected party, I find that the records were supplied to the city by the authors of these reports in confidence. The records are reports about the testing of the affected party’s property and were prepared to assist the city in completing its due diligence with respect to the purchase of the affected party’s property.

[27] According to Paragraph K of Schedule B of the Agreement of Purchase and Sale, the records were provided to the city by the authors of the reports on the basis that they were confidential and were to be kept confidential. The records were treated consistently in a manner that indicates a concern for their protection from disclosure by the authors of the reports prior to being communicated to the city. The records were not otherwise disclosed or available from sources to which the public has access. I also find that they were prepared for a purpose that would not entail disclosure.

[28] Therefore, I find that the records were supplied to the city with a reasonable expectation of confidentiality and that part 2 of the test has been met.

Part 3: harms

[29] To meet this part of the test, the institution and/or the third party must provide detailed and convincing evidence to establish a reasonable expectation of harm. Evidence amounting to speculation of possible harm is not sufficient.¹³

[30] The failure of a party resisting disclosure to provide detailed and convincing evidence will not necessarily defeat the claim for exemption where harm can be inferred from other circumstances. However, only in exceptional circumstances would such a determination be made on the basis of anything other than the records at issue and the evidence provided by a party in discharging its onus.¹⁴

[31] 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 10(1).¹⁵

[32] Parties should not assume that harms under section 10(1) are self-evident or can be substantiated by submissions that repeat the words of the Act .¹⁶

Section 10(1)(b): similar information no longer supplied

[33] The records are about the environmental conditions of a particular property that the city was interested in purchasing, but did not. The city states that breaching confidentiality expectations by disclosing the records may taint future property acquisitions as vendors may be reluctant to consent to environmental investigations if the results of those investigations are made publicly available. It states that the city requires private property owners to consent to environmental investigations in order for it to conduct its due diligence before purchasing a property and that this exercise of due diligence is in the best interests of the city and its residents. It states that release of the records without the consent of the property owner could potentially spread quickly throughout the city, which is a small municipality of approximately 32,000 residents.

[34] Based on my review of the city and the affected party representations and the records, I agree that disclosure could reasonably be expected to result in similar information no longer being supplied to the city where it is in the public interest that similar information continues to be so supplied.

[35] As a result of the information contained in the records, the city did not complete the purchase of the property. I find that it is in the public interest that the city continue to obtain this type of information before proceeding to decide whether to complete a purchase transaction for a property. If similar information is no longer supplied to the city, then it would be at a disadvantage when deciding whether to purchase other properties that may require environmental testing to assist in the city’s decision to purchase the property.

[36] I find that if the information in the records is disclosed, other private property owners may be reluctant to agree to environmental studies of their property being undertaken as a condition precedent to a sale being finalized to an institution. In the case of an aborted purchase, as was the case in this appeal, disclosure of environmental records may diminish a private property owner’s ability to sell the same property to other purchasers.

[37] Accordingly, I find that section 10(1)(b) applies and that part 3 of the test under section 10(1) has been met. As the records are exempt under section 10(1)(b), subject to my consideration of the public interest override in section 16, there is no need for me to decide whether they are also exempt under sections 10(1)(c), 6(1)(b) or 7(1).

B. Is there a compelling public interest in disclosure of the records that clearly outweighs the purpose of the section 10(1) exemption?

[38] Section 16 states:

An exemption from disclosure of a record under sections 7, 9, 10, 11, 13 and 14 does not apply if a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

[39] For section 16 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.

[40] The Act  is silent as to who bears the burden of proof in respect of section 16. This onus cannot be absolute in the case of an appellant who has not had the benefit of reviewing the requested records before making submissions in support of his or her contention that section 16 applies. To find otherwise would be to impose an onus which could seldom if ever be met by an appellant. Accordingly, the IPC will review the records with a view to determining whether there could be a compelling public interest in disclosure which clearly outweighs the purpose of the exemption.¹⁷

[41] In considering whether there is a public interest in disclosure of the record, the first question to ask is whether there is a relationship between the record and the Act ’s central purpose of shedding light on the operations of government.¹⁸ Previous orders have stated that in order to find a compelling public interest in disclosure, the information in the record must serve the purpose of informing or enlightening the citizenry about the activities of their government or its agencies, adding in some way to the information the public has to make effective use of the means of expressing public opinion or to make political choices.¹⁹

[42] A public interest does not exist where the interests being advanced are essentially private in nature.²⁰ Where a private interest in disclosure raises issues of more general application, a public interest may be found to exist.²¹

[43] A public interest is not automatically established where the requester is a member of the media.²²

[44] The word compelling has been defined in previous orders as rousing strong interest or attention.²³

[45] Any public interest in non-disclosure that may exist also must be considered.²⁴ A public interest in the non-disclosure of the record may bring the public interest in disclosure below the threshold of compelling.²⁵

[46] A compelling public interest has been found to exist where, for example:

• • the records relate to the economic impact of Quebec separation²⁶
• • the integrity of the criminal justice system has been called into question²⁷
• • public safety issues relating to the operation of nuclear facilities have been raised²⁸
• • disclosure would shed light on the safe operation of petrochemical facilities²⁹ or the province’s ability to prepare for a nuclear emergency³⁰
• • the records contain information about contributions to municipal election campaigns³¹

[47] A compelling public interest has been found not to exist where, for example:

• • another public process or forum has been established to address public interest considerations³²
• • a significant amount of information has already been disclosed and this is adequate to address any public interest considerations³³
• • a court process provides an alternative disclosure mechanism, and the reason for the request is to obtain records for a civil or criminal proceeding³⁴
• • there has already been wide public coverage or debate of the issue, and the records would not shed further light on the matter³⁵
• • the records do not respond to the applicable public interest raised by appellant³⁶

[48] The city states that the release of the records would provide some insight into what Council may have turned their mind to when deciding not to acquire the property previously, however, the public interest is not compelling, especially given that the information contained in the records was not the only factor that Council considered when it decided not to purchase the property. It also acknowledges that the reports do not contain financial information related to the costs to remediate the environmental issues identified.

[49] The city states that it is publicly known that Council received the records and that Council took the information contained therein into consideration before deciding whether to acquire the lands, as part of its due diligence and that this should be adequate to address any public interest considerations. The city does not believe that releasing the specific details of the reports are necessary or appropriate, taking into account the above comments, that these lands remain privately owned, and that the city agreed to keep the records confidential.

[50] Although the appellant raised the application of section 16 at mediation, he has not provided representations and, therefore, I do not have his reasons why he believes that this section applies.

[51] Based on my review of the records and the city’s representations, I agree with the city that there is no compelling public interest in disclosure of the records. The records concern a particular property that the city decided not to purchase from a private landowner. The sale did not go through and the records were not the only information that the city considered in deciding not to purchase the property. I also find that there is a public interest in non-disclosure of the records as disclosure may result in a loss of faith by property owners to consent to the city conducting environmental testing on private lands in the future as a condition precedent to purchasing these lands.

[52] Therefore, I find that public interest override in section 16 does not apply and that the records are exempt under section 10(1).

ORDER:

I uphold the city’s decision and dismiss the appeal.

Original signed by: Diane Smith Adjudicator

January 27, 2015

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¹ Boeing Co. v. Ontario (Ministry of Economic Development and Trade), [2005] O.J. No. 2851 (Div. Ct.)], leave to appeal dismissed, Doc. M32858 (C.A.).

² Orders PO-1805, PO-2018, PO-2184 and MO-1706.

³ Order PO-2010.

⁴ Order PO-2010.

⁵ Order MO-1706.

⁶ Orders PO-2020 and PO-2043.

⁷ Order PO-2020.

⁸ Orders PO-2043, PO-2371 and PO-2497.

⁹ The Purchaser is the city.

¹⁰ The Vendor is the owner of the property, the affected party.

¹¹ The third party who prepared the report.

¹² The city.

¹³ Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner), cited above.

¹⁴ Order PO-2020.

¹⁵ Order PO-2435.

¹⁶ Order PO-2435.

¹⁷ Order P-244.

¹⁸ Orders P-984 and PO-2607.

¹⁹ Orders P-984 and PO-2556.

²⁰ Orders P-12, P-347 and P-1439.

²¹ Order MO-1564.

²² Orders M-773 and M-1074.

²³ Order P-984.

²⁴ Ontario Hydro v. Mitchinson, [1996] O.J. No. 4636 (Div. Ct.).

²⁵ Orders PO-2072-F, PO-2098-R and PO-3197.

²⁶ Order P-1398, upheld on judicial review in Ontario (Ministry of Finance) v. Ontario (Information and Privacy Commissioner), [1999] O.J. No. 484 (C.A.).

²⁷ Order PO-1779.

²⁸ Order P-1190, upheld on judicial review in Ontario Hydro v. Ontario (Information and Privacy Commissioner), [1996] O.J. No. 4636 (Div. Ct.), leave to appeal refused [1997] O.J. No. 694 (C.A.), Order PO-1805.

²⁹ Order P-1175.

³⁰ Order P-901.

³¹ Gombu v. Ontario (Assistant Information and Privacy Commissioner) (2002), 59 O.R. (3d) 773.

³² Orders P-123/124, P-391 and M-539.

³³ Orders P-532, P-568, PO-2626, PO-2472 and PO-2614.

³⁴ Orders M-249 and M-317.

³⁵ Order P-613.

³⁶ Orders MO-1994 and PO-2607.