ORDER MO-3336-F

Appeal MA14-363

City of Woodstock

July 21, 2016

Summary: This order disposes of the remaining issue in this appeal which concerns access to one record relating to the sale of Woodstock Hydro by the City of Woodstock (the city).  In Order MO-3267-I, the adjudicator found that while the record was not exempt under section 11, it potentially contained “personal information” and may be exempt under the mandatory personal privacy exemption in section 14(1).  In this order the adjudicator finds that the personal information in the record is not exempt under section 14(1) because the exception in section 14(4)(a) applies to it.  The information is also not exempt under the third party information exemption in section 10(1). 

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, sections 2(1)(definition of “personal information”), 10(1), 14(1), 14(4)(a).

OVERVIEW:

[1]  The appellant made a request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) to the City of Woodstock (the city) for access to the following information:

Documents related to the Agreement by and between Hydro One Inc., [numbered company], and the Corporation of the City of Woodstock.

Letters from and to Woodstock Hydro Holdings or Woodstock Hydro Services received by or sent by the City of Woodstock regarding the Agreement; and

A copy of the confidentiality agreement between the parties; and the agreement or contract between the City and [identified individual/name of law firm].

[2]  After locating responsive records, the city notified Woodstock Hydro pursuant to section 21, as it may have an interest in disclosure of the records.  Woodstock Hydro advised that it did not object to the release of the information responsive to the request.

[3]  The city issued a decision to the appellant, advising him that it had located five letters from Woodstock Hydro to the city regarding the agreement.  The city advised that it granted the appellant partial access to the letters and withheld portions of the letters pursuant to the discretionary exemptions in sections 11(c), (d), (e), (f) and (g) (economic or other interests) of the Act . With regard to the appellant’s request for the confidentiality agreement between the parties, the city advised the appellant that it released the agreement in a separate letter. Finally, with regard to the “agreement or contract between the City and [identified individual/name of law firm]”, the city advised that no such record exists.

[4]  The appellant appealed the city’s decision to this office.

[5]  Following mediation and an inquiry into the appeal at adjudication, I issued Order MO-3267-I. I found that none of the four records qualified for exemption under section 11 and ordered Records 1 – 3 to be disclosed to the appellant. [1] In paragraph 24 of that order, I noted that certain information in Record 4, on its face, appeared to be the personal information of identifiable individuals and may qualify for exemption under the mandatory personal privacy exemption in section 14(1). As the individuals to whom the information relates had not been notified of the appeal, I did not order Record 4 disclosed. I remained seized of the issues relating to Record 4.

[6]  Subsequent to Order MO-3267-I, I sought the representations of the six individuals whose information appears in Record 4 (affected persons). I received representations from one affected person.  Two affected persons responded to the notice but did not provide representations. I also sought representations from the appellant but the appellant chose not to provide representations.

[7]  Furthermore, some of the notices sent to the affected persons were forwarded to Hydro One as the new owner of Woodstock Hydro. Hydro One provided representations in this appeal in support of its position that Record 4 qualifies for exemption under the mandatory third party information exemption in sections 10(1) (a) and (c) of the Act . As a result, in this order, I also review the possible application of those mandatory exemptions to the record at issue.

[8]  In this order, I find that Record 4 is not exempt under sections 10(1) or 14(1) and order it disclosed.

RECORDS:

The record at issue is a letter dated June 6, 2014 re: Woodstock Hydro Holdings Inc. Board Meeting.

ISSUES:

1. Is the record exempt under the mandatory third party information exemption in section 10(1)?
2. Does the record contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?
3. Would disclosure of the record constitute an unjustified invasion of personal privacy under section 14(1)?

DISCUSSION:

Issue A:  Is the record exempt under the mandatory third party information exemption in section 10(1)?

[9]  Hydro One submits that the record at issue is exempt under sections 10(1) (a) and (c) of the Act  which state:

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

(a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;

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

[10]  Section 10(1) is designed to protect the confidential informational assets of businesses or other organizations that provide information to government institutions. [2] 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. [3]

[11]  For section 10(1) to apply, Hydro One must satisfy each part of the following three-part test:

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

[12]  Hydro One did not make submissions on parts 1 and 2 of the test above. Instead, it primarily focused on the harm that would result if the record is disclosed.  While it is unclear to me how Hydro One’s third party interest is engaged given the fact that the record was supplied to the city by Woodstock Hydro before the agreement between Hydro One and Woodstock Hydro was finalized, in the circumstances of this appeal, I am prepared to consider whether Hydro One has satisfied the test for harm under part 3.

Part 3:  harms

[13]  In order to establish the harms in sections 10(1)(a) or (c), Hydro One must provide sufficient evidence to establish that disclosure of the information could reasonably be expected to result in one of the harms section 10(1) seeks to prevent. The evidence must demonstrate a risk of harm that is well beyond the merely possible or speculative although it need not be proven that disclosure will in fact result in such harm. How much and what kind of evidence is needed will depend on the type of issue and seriousness of the consequences. [4]

[14]  The failure of a party resisting disclosure to provide cogent evidence will not necessarily defeat the claim for exemption where harm can be inferred from the surrounding circumstances. However, parties should not assume that the harms under section 10(1) are self-evident or can be proven simply by repeating the description of harms in the Act . [5]

[15]  Hydro One submitted both confidential and non-confidential representations in support of its argument that sections 10(1)(a) and (c) apply to the information at issue. In its non-confidential representations, Hydro One submits that the contents of the Record would impact its future commercial negotiations and/or transactions involving its future acquisitions of local distribution companies (LDC’s). Hydro One states:

To create more efficiencies in the distribution sector, the Premier’s Advisory Council on Government Assets has endorsed the need for faster consolidation among local distribution companies (“LDCs”) in Ontario. As the largest distributor in Ontario, Hydro One has been an active consolidator of LDCs…

…Hydro One intends to continue to consider growth opportunities through LDC consolidation (e.g. acquisitions) by leveraging existing assets, technologies, capabilities, unparalleled experience in LDC acquisitions and its distribution footprint.

[16]  Hydro One’s confidential representations explain in detail its position regarding how disclosure of the information in the record could result in the harms set out in sections 10(1)(a) and (c).  Without citing these representations here, I note that Hydro One’s representations focus on the fact that disclosure of the information would negatively affect its ability to negotiate the future acquisitions of LDC’s because the information in the record could be misconstrued. 

[17]  Adjudicator Gillian Shaw in Order PO-3459 considered a third party appellant’s argument that disclosure of the information would result in a section 17(1) [provincial equivalent to section 10(1)] harm because the information would be “misunderstood” by the requester. In that order, the appellant argued against disclosure of an environmental assessment report as it may present an erroneous picture that it had used contaminated fill at its site. In dismissing this argument, Adjudicator Shaw stated the following:

Furthermore, if the appellant is of the view that the resulting report is misleading in some way, it should be a simple matter to convey updated correct information to the requester.

[18]  This rationale was recently applied in Order PO-3567 where Adjudicator Justine Wai considered the third party appellant’s arguments against disclosure of environmental assessment reports. In that appeal, the affected party appellant submitted that disclosure of the reports could potentially result in it and other parties being drawn into litigation because of the contents of the reports. Adjudicator Wai rejected this argument citing the rationale set out in Order PO-3459 and stating:

I adopt Adjudicator Shaw’s finding and apply it to the facts of the appeal before me. While I appreciate the appellant’s concern that the reports at issue may be misinterpreted, I find that he should be able to correct any misunderstanding and provide updated information if required. In any case, I find that the appellant’s concerns with regard to misinterpretation of the records could not reasonably be expected to result in the harms identified in sections 17(1) (a), (b) or (c) of the Act .

[19]  I accept the approach applied in both Orders PO-3459 and PO-3567 and apply it here to Hydro One’s confidential submission on the harms in sections 10(1)(a) and (c). I find that Hydro One is able to provide an explanation of the information in the record or correct any misunderstanding that disclosure of the information could cause. Hydro One would be in a position, in any negotiation, to provide a more fulsome picture of the events surrounding the sale of Woodstock Hydro to it.

[20]  As a result, I do not accept Hydro One’s argument that the misapprehension of the information is a basis for finding that disclosure of the information would result in the harms set out in sections 10(1)(a) and (c). Moreover, outside of its general submission that it will continue to negotiate the acquisition of additional LDC’s, Hydro One has not provided me with specific evidence of present or future negotiations for LDC’s that would be jeopardized by the disclosure of the information at issue. Accordingly, I find that Hydro One has not established the harm in section 10(1) (a) of the Act .

[21]  I further find that Hydro One has also not provided sufficient evidence to establish that disclosure of the record could reasonably result in undue loss to itself in accordance with section 10(1)(c). Again, Hydro One’s general submission about the future negotiation for the acquisition of LDC’s is speculative and unsubstantiated. I find that Hydro One has not established the harm in section 10(1)(c).

[22]  As I have found that the information in Record 4 is not exempt under sections 10(1)(a) and (c), I will now consider whether the record at issue is exempt under section 14(1).

Issue B:  Does the record contain personal information and, if so, to whom does it relate?

[23]  In order to determine which sections of the Act  may apply, it is necessary to decide whether the record contains personal information and, if so, to whom it relates. This term is defined in section 2(1), in part, as follows:

“personal information” means recorded information about an identifiable individual, including,

(a) Information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

(h) the individual’s name if it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual;

[24]  To qualify as personal information, the information must be about the individual in a personal capacity. As a general rule, information associated with an individual in a professional, official or business capacity will not be considered to be about the individual. [6]

[25]  Even if information relates to an individual in a professional, official or business capacity, it may still qualify as personal information if the information reveals something of a personal nature about the individual. [7]

[26]  To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. [8]

[27]  I did not receive representations on this issue from any of the parties in the appeal. The city described the record at issue as containing confidential information from a Woodstock Hydro Board of Directors meeting.  The city describes the information as, “…measures to be taken by Woodstock Hydro to address human resource matters in light of the Agreement.”

[28]  Based on my review of the information at issue, I find that the withheld information contains the names of individuals within the context of a human resource matter and thus it constitutes the personal information of identified individuals within the meaning of paragraphs (b) and (h) of the definition of that term in section 2(1). Moreover, even if the names of the individuals were severed, the individuals would still be identifiable based on the nature of the described human resource matter.

[29]  I will now proceed to consider the application of the personal privacy exemption in section 14(1).

Issue C:  Would disclosure of the record constitute an unjustified invasion of personal privacy under section 14(1)?

[30]  Where an appellant seeks personal information of another individual, section 14(1) prohibits an institution from releasing this information unless one of the exceptions in paragraphs (a) to (f) of section 14(1) applies.

[31]  In the present appeal only the exception in section 14(1)(f) is relevant which states:

A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,

if the disclosure does not constitute an unjustified invasion of personal privacy.

[32]  The effect of section 14(1)(f) is that personal information is exempt from disclosure except where disclosure does not constitute an unjustified invasion of personal privacy. The factors and presumptions in sections 14(2) and (3) help in determining whether disclosure would be an unjustified invasion of personal privacy under section 14(1)(f).

[33]  Section 14(4) lists situations where disclosure would not be an unjustified invasion of personal privacy and the information would not be exempt under section 14(1). Accordingly, I will first consider whether section 14(4) applies to the personal information.

[34]  Based on my review, it appears that only section 14(4)(a) is relevant. It states:

Despite subsection (3), a disclosure does not constitute an unjustified invasion of personal privacy if it,

(a) discloses the classification, salary range and benefits, or employment responsibilities of an individual who is or was an officer or employee of an institution

[35]  This office has interpreted benefits to include entitlements, in addition to base salary, that an employee receives as a result of being employed by the institution. The following have been found to qualify as benefits:

• insurance-related benefits,

• sick leave, vacation,

• leaves of absence,

• termination allowance.

[36]  The term benefits does not include entitlements that have been negotiated as part of a retirement or termination package unless the information reflects benefits to which the individual was entitled as a result of being employed. [9]

[37]  Although invited to do so, none of the parties provided representations on the possible application of section 14(4)(a), nor did I receive representations regarding whether the individuals listed in the record were “officers or employees” of an institution for the purpose of section 14(4)(a).

[38]  Based on my review of the record and the information relating to the identified individuals, I am satisfied that the information at issue relates to a benefit for the purpose of section 14(4) (a) of the Act . The information relates to an entitlement that the individuals received as a result of being employed.

[39]  The individuals identified in Record 4 were employees of Woodstock Hydro Services Inc. at the time the records were created. Woodstock Hydro Services Inc. was a wholly-owned subsidiary of Woodstock Hydro Holdings Inc., which itself was a holding company wholly-owned by the city.

[40]  In the absence of representations, it is not clear whether Woodstock Hydro Services Inc. itself could be characterized as an institution under paragraph (c) of the definition of that term in section 2(1), or whether it was considered as part of the city of Woodstock under section 2(3)  of the Act . The application of section 2(3) was considered by the Ontario Court of Appeal in City of Toronto Economic Development Corporation v. Ontario (Information and Privacy Commissioner) (TEDCO). [10]   In Order MO-2570, Commissioner Brian Beamish summarized the Court of Appeal’s decision in TEDCO, as follows:

In that case, the Court counseled against a technical interpretation of the Act  in considering whether the City of Toronto Economic Development Corporation (TEDCO) was part of the City under section 2(3). The Court stated (at para. 39) that “…a formal and technical interpretation [of section 2(3)] runs contrary to the purpose of the Act ,” and took into account, among other things, that the sole purpose of TEDCO was to “advance the economic development of the City.” The Court also observed (at para. 32) that:

When one considers that the object or purpose of the Act  is to provide a right of access to information under the control of municipalities and related municipal institutions, it would appear reasonable to conclude that TEDCO should be subject to the Act .

[41]  Applying this approach to the circumstances in this appeal, although it is not clear whether Woodstock Hydro Services Inc. (at the time the record was created) was itself an institution or was part of the city under section 2(3), what is clear is that the identified individuals were paid out of the public purse, and that these circumstances are another example of a complex bureaucratic structure of public administration the Court of Appeal in TEDCO warned against. [11] As a result, it “would appear reasonable to conclude” that Woodstock Hydro Services Inc. should be subject to the Act . In these circumstances, and in the absence of representations on this issue from any of the parties, I find that the identified individuals named in the record were employees of an institution for the purpose of section 14(4) (a) of the Act .

[42]  As stated above, previous orders of this office have also confirmed that the term benefits in section 14(4)(a) does not include entitlements that have been negotiated as part of a retirement or termination package unless the information reflects benefits to which the individual was entitled as a result of being employed. On my review of the information at issue and the circumstances under which it was created, I am satisfied that the information does not relate to an entitlement negotiated as part of a retirement or termination package and instead, is a benefit that accrued to the employees of the institution.

[43]  Accordingly, I find that disclosure of the record would disclose the benefits of individuals who were employees of an institution and thus the exception in section 14(4)(a) applies. Disclosure of this information would not be an unjustified invasion of the individuals’ personal privacy under section 14(1)(f) and thus I will order the record disclosed.

ORDER:

1. I order the city to disclose Record 4 to the appellant by providing him with a copy of it by August 26, 2016 but not before August 22, 2016.
2. In order to verify compliance with this order, I reserve the right to require the city to provide me with a copy of the record disclosed to the appellant in accordance with order provision 1.

Original Signed By:		July 21, 2016
Stephanie Haly
Adjudicator