ORDER MO-3369

Appeal MA14-486

Toronto District School Board

October 28, 2016

Summary: The board received a request under the Act for information relating to the establishment of a Confucius Institute. It denied access to all of the responsive records on the basis that the mandatory exemption for third party commercial information at section 10(1) of the Act applied. The requester appealed the board’s decision. In this order, I find that the exemption at section 10(1) does not apply but that the records contain the personal information of a number of identifiable individuals, the disclosure of which would amount to an unjustified invasion of the personal privacy of those individuals under the mandatory exemption at section 14(1) of the Act. I order the board to disclose the records, with the personal information severed.

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)(f), 14(2)(f), and 14(3)(d).

OVERVIEW:

[1]  The Toronto District School Board (the board) received a six-part request, filed under the Municipal Freedom of Information and Protection of Privacy Act (the Act), for information relating to the establishment of a Confucius Institute. Specifically, the requester sought access to the following information:

1. Details on agreements between [the board] and [named organization].
2. Documents related to [the board]’s relationship with [named organization].
3. Details on agreements between [the board] and the Hunan Provincial [Department] of Education.
4. Documents related to [the board]’s relationship with the Hunan Provincial [Department] of Education.
5. Documents related to [the board]’s history with the Confucius Institute, [named organization], and the Hunan Provincial [Department] of Education, and correspondence between [the board] and these organizations.
6. Records of meetings between [the board] staff or trustees with representatives from Confucius Institute, [named organization], and the Hunan Provincial [Department] of Education.

[2]  The board identified 66 records, comprising 244 pages, as responsive to the request. Prior to issuing its decision on access, the board notified a number of affected parties, in accordance with section 21(1) of the Act , seeking their views regarding disclosure of the responsive records. One affected party responded advising that it did not grant consent for the board to disclose its personal information. The board subsequently issued an access decision advising that it was prepared to disclose records in response to part 1 of the request in their entirety; that no records exist in response to parts 2, 3 and 4 of his request; and that it was denying access to parts 5 and 6 of the request pursuant to the exemption for third party commercial information set out in section 10(1) of the Act .

[3]  The requester, now the appellant, appealed the board’s decision.

[4]  During mediation the appellant advised that he questions the board’s position that no records exist in response to parts 2, 3 and 4 of his request. Accordingly, whether the board conducted a reasonable search for responsive records was included as an issue on appeal. The appellant also confirmed that the board’s application of section 10(1) to the records that are responsive to parts 5 and 6 of his request is at issue in this appeal.

[5]  The board subsequently provided the appellant with an index of records. In response to the issue of search, the board clarified that there is no agreement between the board and the Hunan Provincial Department of Education. Further, it advised that records that respond to parts 5 and 6 may also respond to parts 2 and 4 of the request.

[6]  Upon review of the index of records and in light of the above, the appellant advised the mediator that the reasonableness of the board’s search was no longer at issue in this appeal. Additionally, the appellant confirmed with the mediator that he is seeking access to all of the records that have been denied under section 10(1) of the Act  in response to parts 5 and 6 of his request.  The board confirmed its position that section 10(1) applies to the records at issue.

[7]  As a mediated resolution could not be reached, the appeal was transferred to the adjudication stage of the appeal process where an adjudicator conducts an inquiry. I began my appeal by sending a Notice of Inquiry, setting out the facts and issues on appeal to the board, initially. The board provided representations. In its representations, the board advised that it is no longer claiming that the mandatory exemption at section 10(1) of the Act  applies. However, as this is a mandatory exemption, I have not removed it from the scope of the appeal. Also in its representations, the board advised that in light of its revised position that section 10(1) does not apply to the records, it now submits that the mandatory personal privacy exemption at section 14(1) of the Act  applies to a small amount of personal information of an identifiable individual that appears on two pages of records: pages 132 and 133.

[8]  Concurrently with the Notice of Inquiry sent to the board, I sent a copy of the Notice of Inquiry to five affected parties who might have an interest in the disclosure of the records. Despite additional attempts by this office to contact them, none of the affected parties responded to the Notice of Inquiry.

[9]  Following receipt of the board’s representations, I sent a copy of the Notice of Inquiry to the appellant seeking representations on the possible application of the mandatory exemption at section 10(1) of the Act . In addition to seeking his representations, I asked the appellant to comment on whether he is interested in pursuing access to the personal information of an identifiable individual found on pages 132 and 133. The appellant chose not to submit representations but did advise this office that he is not interested in pursuing access to the personal information on pages 132 and 133 that the board now submits is exempt under section 14(1) of the Act . As a result, that information is no longer at issue.

[10]  Subsequently, on my review of the records, I noted that a number of other pages of the responsive records (in addition to pages 132 and 133) contain information that might qualify as personal information. Although the appellant has indicated that he does not seek access to personal information, as section 14(1) is a mandatory exemption and his comment was specifically in relation to the information on pages 132 and 133, I will consider whether there is other information in the records that amounts to personal information. If so, I am required to determine whether that personal information qualifies for exemption under section 14(1) of the Act .

[11]  In the order that follows, I find that the mandatory exemption for third party information at section 10(1) of the Act  does not apply to the records. However, I also find that some of the records contain the personal information of identifiable individuals as that term is defined in section 2(1) of the Act and that the disclosure of that personal information would amount to an unjustified invasion of personal privacy of the individuals to whom it relates under the mandatory exemption at section 14(1) of the Act . Accordingly, I uphold the board’s revised decision to disclose the records, in part, and order it to disclose the responsive records to the appellant, with severances made to the personal information for which section 14(1) applies.

RECORDS:

[12]  There are 66 records at issue, comprising 244 pages. The records have been described on an index of records that was provided to the appellant and this office. The records have been withheld in their entirety.

ISSUES:

1. Does the mandatory exemption at section 10(1) of the Act  apply to the records?
2. Do the records contain “personal information” as that term is defined in section 2(1) of the Act and, if so, to whom does it relate?
3. Does the mandatory exemption at section 14(1) of the Act  apply to the information at issue?

DISCUSSION:

A.  Does the mandatory exemption at section 10(1) of the Act apply to the records?

[13]  The mandatory exemption at section 10(1) applies to information that can be described as third party information. Section 10(1) states:

A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, 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;

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

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

(d) reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute.

 

[14]  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]

[15]  For section 10(1) to apply, the institution and/or the third party 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.

[16]  In the circumstances of this appeal, the board has now revised its position and has withdrawn its claim that the exemption at section 10(1) applies to any of the records. It notes, however, that none of the affected parties have provided it with their consent to disclose any information relating to them.

[17]  As noted above, none of the affected parties provided representations in response to the Notice of Inquiry. Despite the lack of submissions from the parties on the application of section 10(1) to the records at issue, as the exemption is mandatory, I must nevertheless determine whether it applies.

Part 1: type of information

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

Trade secret means information including but no limited to a formula, pattern, compilation, programme, method, technique, or process or information contained or embodied in a product, device or mechanism which

I. is, or may be used in a trade or business,

II. is not generally known in that trade or business,

III. has economic value from not being generally know, and

IV. is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. [3]

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. [4]

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. ^[5]

Commercial information is information that relates solely to the buying, selling or exchange of merchandise or services.  This term can apply to both profit-making enterprises and non-profit organizations, and has equal application to both large and small enterprises. [6]   The fact that a record might have monetary value or potential monetary value does not necessarily mean that the record itself contains commercial information. [7]

Financial information refers to information relating to money and its use or distribution and must contain or refer to specific data.  Examples of this type of information include cost accounting methods, pricing practices, profit and loss data, overhead and operating costs. ^[8]

Labour relations means relations and conditions of work, including collective bargaining, and is not restricted to employer/employee relationships.

[19]  From my review of the records, I accept that they contain information that can be described as “commercial information” as that term is contemplated under the Act . The information relates to a proposed commercial partnership agreement between the board and the Hunan Provincial Department of Education for the establishment of a Confucius Institute. The records make it clear that under the agreement, there is an exchange of funds for services and that this is a commercial arrangement.

[20]  Some of the records also contain information regarding the initial operating funds with respect to the partnership, budget breakdowns (real and estimate) for the establishment of various elements of the Confucius Institute and proposed annual budget amounts. As a result, I accept that some of the information at issue qualifies as “financial information” within the meaning of part 1 of the section 10(1) test.

[21]  I do not find that there is any evidence before me to establish that the records contain any of the other types of information identified in section 10(1) of the Act .

[22]  Accordingly, I find that the records contain both commercial and financial information and part 1 of the section 10(1) test has been met.

Part 2: supplied in confidence

Supplied

[23]  The requirement that the information was “supplied” to the institution reflects the purpose in section 10(1) of protecting the informational assets of third parties. [9]

[24]  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. [10]

[25]  The contents of a contract involving an institution and a third party will not normally qualify as having been “supplied” for the purpose of section 10(1).  The provisions of a contract, in general, have been treated as mutually generated, rather than “supplied” by the third party, even where the contract is preceded by little or no negotiation or where the final agreement reflects information that originated from a single party. [11]

[26]  Having reviewed the records, I find that a small amount of the information contained within them would qualify as “supplied” to the board by the Hunan Provincial Department of Education as it is information that originates from the third party. However, I also find that the majority of the information contained in the records does not qualify as “supplied” as it is information that originated with the board, was not directly supplied to the board by the Hunan Provincial Department of Education (or other third party), or consists of the agreement between the parties and the addendum to that agreement (or documents that reiterate distinct provisions of that agreement). As noted above, agreements between an institution and a third party have generally been treated as information that is mutually generated and not “supplied” within the meaning of part 2 of section 10(1) of the Act .

[27]  Accordingly, I accept that some of the information at issue qualifies as having been “supplied” while some of it does not.

In confidence

[28]  In order to satisfy the “in confidence” component of part two, the parties resisting disclosure must establish that the supplier of the information had a reasonable expectation of confidentiality, implicit or explicit, at the time the information was provided.  This expectation must have an objective basis. [12]

[29]  In determining whether an expectation of confidentiality is based on reasonable and objective grounds, all the circumstances are considered, 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 by the third party in a manner that indicates a concern for confidentiality
• not otherwise disclosed or available from sources to which the public has access
• prepared for a purpose that would not entail disclosure [13]

[30]  In my view, there is no evidence before me to suggest that any of the information at issue that qualifies as having been “supplied,” was supplied “in confidence” to the board. The board has agreed to disclose all of the information at issue, subject to the possible application of the mandatory personal privacy exemption that I will discuss below. In my view, the board’s position on disclosure implies that it is not of the view that any of the information was communicated to it on the basis that it was confidential and that it was to be kept confidential. Despite being solicited for their views on the disclosure of the information at issue, none of the affected parties, including the Hunan Provincial Department of Education, chose to submit representations or provide evidence to support a position that the information was to be kept confidential or treated consistently in a manner that indicates a concern for confidentiality. Additionally, from my review of the records themselves, there is no explicit (or implicit) suggestion contained within the information that indicates that there was an expectation of confidentiality at the time the information was provided. [14]

[31]  Accordingly, I find that none of the information can be described as having been supplied, in confidence, within the meaning of part 2 of the section 10(1) test. As all three parts of the section 10(1) test must be met for the exemption to apply, section 10(1) does not apply in the circumstances of this appeal. However, for the sake of completeness, I will go on to discuss part 3 of the test, the harms component, prior to determining whether any of the records contain personal information that is subject to the mandatory exemption for personal privacy at section 14(1) of the Act .

Part 3: Harms

[32]  The party resisting disclosure must provide detailed and convincing evidence about the potential for harm. It must demonstrate a risk of harm that is well beyond the merely possible or speculative although it need not prove that disclosure will in fact reveal such harm. How much and what kind of evidence is needed will depend on the issue and seriousness of the consequences. [15]

[33]  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 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 the harms in the Act . [16]

[34]  In applying section 10(1) to government contracts, 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). [17]

[35]  In the circumstances of this appeal, I have been provided with insufficient evidence to find that any of the harms identified in section 10(1) of the Act  could reasonably be expected to occur. As the board no longer claims the application of the mandatory exemption at section 10(1) and none of the affected parties submitted representations in support of a position that the information should not be disclosed, I have reviewed the records closely to determine whether, on their face, the disclosure of the information that they contain could reasonably be expected to be harmful to any of the affected parties.

[36]  Following such review, I do not accept that disclosure of the records at issue could reasonably be expected to (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization, (b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied, (c) result in undue loss or gain to any person, group, committee or financial institution or agency; or (d) reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute.

[37]  Although 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 the surrounding circumstances, as noted above, parties should not assume that the harms under section 10(1) are self-evident or can be proven simply by repeating the description of the harms in the Act . As previously mentioned, in this appeal I have no submissions from any of the parties outlining any objection to the disclosure of the records at issue. As section 10(1) is a mandatory exemption, I agree that the absence of representations on its application does not categorically defeat its potentially application, however, in my view it gives some indication on the parties’ expectations of harm that could be expected to occur from disclosure of the information.

[38]  In my view, a review of the records reveals that a reasonable expectation of the occurrence of any of the harms identified in section 10(1) is not self-evident from the information itself. In addition to copies of the agreement (and an addendum to that agreement) outlining the details of the partnership between the board and the Hunan Provincial Department of Education, much of the information amounts to emails exchanged between parties involved in the establishment of the Confucius Institute. Some of it relates to details and specifics of visits and contemplated visits (both in Canada and in China) between the parties involved in its establishment. Some of it is information describing material and budget requirements for the various expenditures required for the establishment of the Confucius Institute, including equipment and furniture, events (both launch and annual) and activities, planning and promotion, and personnel salary. In the absence of evidence before me to describe how the disclosure of the information contained in the records at issue could reasonably be expected to give rise to any of the harms set out in section 10(1) of the Act , I do not accept that it would.

[39]  Moreover, I understand that the agreement to which the records relate, the partnership between the board and the Hunan Provincial Department of Education for the establishment of a Confucius Institute, has been terminated and there is no evidence before me to suggest that it will be revived. Again, in the absence of evidence to the contrary, I do not accept that the disclosure of information regarding a defunct partnership could reasonably be expected to result in the types of harms contemplated in section 10(1) of the Act .

[40]  Having regard to the above, I find that I have not been provided with sufficient evidence to support a finding that disclosure of the records would result in prejudice to a third party’s competitive position, result in similar information no longer being supplied, result in an undue loss or gain, or reveal information supplied to a person appointed to resolve a labour relations dispute. Accordingly, I find that the third part of the section 10(1) test has not been met and therefore, that the mandatory exemption at section 10(1) does not apply in the circumstances of this appeal.

[41]  Although I have found that the mandatory exemption at section 10(1) does not apply to exempt the records at issue from disclosure, as some of the information contained in the records might amount to the personal information of identifiable individuals I must determine whether the disclosure of any such personal information would result in an unjustified invasion of personal privacy pursuant to the mandatory exemption at section 14(1) of the Act .

B.  Do the records contain “personal information” as that term is defined in section 2(1) of the Act and, if so, to whom does it relate?

[42]  My review of the records revealed that some of the records might contain information that constitutes the “personal information” of an identifiable individual. Pursuant to the mandatory exemption at section 14(1), if the disclosure of personal information amounts to the unjustified invasion of the personal privacy of the individual to whom the information relates, the personal information is exempt from disclosure. Therefore, it must first be established whether a record contains “personal information” and, if so, to whom it relates. That 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 race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,

(b) 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,

(c) any identifying number, symbol or other particular assigned to the individual,

(d) the address, telephone number, fingerprints or blood type of the individual,

…

(h) the individual’s name where 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;

[43]  The list of examples of personal information under section 2(1) is not exhaustive. Therefore, information that does not fall under paragraphs (a) to (h) may still qualify as personal information. [18]

[44]  Section 2(2.1) also relates to the definition of personal information.  It reads:

(2.1) Personal information does not include the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity.

[45]  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. [19]

[46]  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.

[47]  To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. [20]

[48]  A number of the records at issue in this appeal are emails and letters that contain logistics and details about a visit by a Chinese delegation from the Hunan province related to the establishment of the Confucius Institute. Within some of these emails is information about the various officials who form part of the delegation. While, in my view, much of the information about the individual officials who form part of the delegation amounts to their professional information, some of it amounts to their personal information. Specifically, some of the records include their names, along with their sex and date of birth and, in some circumstances, passport numbers. Two emails contain the personal cell phone numbers of two individuals and another email contains information about a named individual’s family status, together with other personal information about them. Additionally, some records also contain information that can be described as the employment history of an identifiable individual. Accordingly, I find that some of the records contain information that qualifies as the personal information of identifiable individuals within the meaning of paragraphs (a), (b), (c), (d) and (h) of the definition of that term in section 2(1) of the Act .

[49]  As I have found that some of the records contain “personal information” of identifiable individuals, I must now determine whether the mandatory exemption at section 14(1) applies to this information.

C.  Does the mandatory exemption at section 14(1) of the Act apply to the information at issue?

[50]  Where the records contain the personal information of individuals other than the appellant, as is the case here, section 14(1) prohibits the disclosure of this information unless one of the exceptions listed in paragraph (a) to (f) of section 14(1) applies. If the information fits within any of those paragraphs, it is not exempt from disclosure under section 14(1).

[51]  The only exception that might apply in the circumstances of this appeal is section 14(1)(f), which permits disclosure if it “…does not constitute an unjustified invasion of personal privacy.”

[52]  The factors and presumptions in sections 14(2), (3) and (4) help in determining whether disclosure would or would not be an unjustified invasion of personal privacy under section 14(1)(f). Section 14(4) identifies information whose disclosure is not an unjustified invasion of personal privacy. Section 14(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy. If any of paragraphs (a) to (h) of section 14(3) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy under section 14. Once established, a presumed unjustified invasion of personal privacy under section 14(3) can only be overcome if section 14(4) or the “public interest override” at section 16 applies. Finally, if neither sections 14(4) or (3) apply, section 14(2) lists various factors that may be relevant in determining whether disclosure of personal information would constitute an unjustified invasion of personal privacy.

[53]  In the circumstances of this appeal, the only paragraph in section 14(3) that might apply is paragraph (d) which states that “[a] disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the information, relates to employment or educational history.” There are two circumstances in the records where information about an individual’s employment history is described. Accordingly, I find that the disclosure of this information is presumed to be an unjustified invasion of personal privacy under section 14(3)(d). I also find that this presumption is not overcome as neither section 14(4) nor the “public interest override” at section 16 apply to this information.

[54]  With respect to the remaining information that I have identified in the records, I also find that neither section 14(4) nor section 16 apply to it. However, with respect to the possible application of any of the factors at section 14(2), I find that only paragraph (f) might apply. Section 14(2)(f) is a factor weighing against disclosure if it can be established that the personal information is highly sensitive. In the circumstances of this appeal, I accept that information about an individual’s passport number is highly sensitive. Accordingly, I find that the factor at section 14(2)(f), weighing against the disclosure of the personal information at issue, applies to the passport numbers. I also find that none of the factors weighing in favour of the disclosure of any of the personal information at issue are relevant in the circumstances of this appeal.

[55]  In conclusion, I find that disclosure of some of the personal information found in the records would amount to a presumed unjustified invasion of personal privacy of the individuals to whom it relates pursuant to section 14(3)(d). Additionally, I find that the factor at section 14(2)(f) weighing against disclosure applies to the passport numbers. I also find that no factors weighing in favour of disclosure have been established. In the absence of any factors favouring disclosure, I find that the mandatory exemption at section 14(1) applies to all of the personal information that is found in the records and I will order the board to sever this information prior to disclosing the records to the appellant.

ORDER:

1. I find that the mandatory exemption at section 10(1) of the Act  does not apply to the records at issue and uphold the board’s revised decision to disclose them to the appellant, in part.
2. I find that the mandatory exemption at section 14(1) of the Act  applies to the personal information contained in the records and order the board to sever it prior to disclosing the records to the appellant. For the sake of clarity, I have enclosed a copy of the pages that contain personal information and have highlighted, in green, the personal information that must be severed from the records.
3. I order the board to disclose the records to the appellant by December 23, 2016 but not before December 12, 2016.

Original Signed by:		October 28, 2016
Catherine Corban
Adjudicator