INTERIM ORDER PO-4002-I

Appeals PA13-34 and PA13-426

Ministry of the Solicitor General

October 28, 2019

Summary: An individual sought access to information about police involvement with a contract matter between himself and a municipality. The Ministry of the Solicitor General (the ministry) granted partial access to the responsive records. The ministry denied access to some information pursuant to various exclusions and exemptions in the Freedom of Information and Protection of Privacy Act  (the Act ). The requester appealed the ministry’s decision. In Interim Order PO-3655-I, an adjudicator upheld the ministry’s decision in part. She ordered disclosure of some of the information at issue and this office remained seized of the appeal to determine whether the ministry was required to withhold fifteen remaining pages of the records pursuant to section 17(1)  of the Act , pending notification of other potentially affected parties.

In this Interim Order, the adjudicator concludes that section 17(1)  of the Act  does not apply to the remaining information at issue and orders the ministry to disclose that information to the appellant, with the exception of a small amount of information that may be third party personal information subject to section 49(b) (personal privacy) of the Act .

Statutes Considered: Freedom of Information and Protection of Privacy Act,  R.S.O. 1990, c. F. 31 , as amended, section 17(1) .

OVERVIEW:

[1]  An individual made a request to the Ministry of the Solicitor General [1] (the ministry) under the Freedom of Information and Protection of Privacy Act  (the Act ) for access to records held by the Ontario Provincial Police (the OPP) “or any ministry of the Ontario government” about himself and two named companies.

[2]  The ministry issued an access decision, claiming a number of exemptions and the labour relations or employment records exclusion at section 65(6)  of the Act . The requester (now the appellant) filed an appeal of the ministry’s decision to this office, after which the ministry modified its exemption claim under section 14 (law enforcement) of the Act and withdrew its reliance on sections 19 (solicitor-client privilege) and 65(6).

[3]  A mediated resolution of Appeal PA13-34 was not possible and the file was transferred to the adjudication stage of the appeals process where an adjudicator may conduct an inquiry under the Act . After receiving a Notice of Inquiry from this office and being invited to make representations, the ministry wrote to the appellant and advised that it intended to notify third parties, whose interests it believed may be affected by the disclosure of the information at issue, pursuant to section 28  of the Act .

[4]  One of the parties that the ministry notified of its decision to grant partial access to the responsive records, the Town of Tillsonburg (the municipality) objected to that decision and appealed to this office. Appeal PA13-426 was opened as a third party appeal and it was streamed directly to the adjudication stage of the appeal process because of its connection to PA13-34.

[5]  On September 29, 2016, Adjudicator Daphne Loukidelis issued Interim Order PO- 3655-I, which addressed both Appeals PA13-34 and PA13-426. In that Interim Order she partly upheld the ministry’s decision respecting the responsiveness of the records and the application of the exemptions in sections 49(a) (discretion to refuse requester’s own personal information) and 49(b) (person privacy) of the Act . She ordered the ministry to disclose the appellant’s personal information to him, as well as other withheld portions of the records that she determined did not qualify for an exemption under the Act . This office remained seized of the appeals to address the possible disclosure of two remaining records, pending further notification of parties who might be affected by the disclosure of the information in those records.

[6]  On February 23, 2018, this office issued a Notice of Inquiry for Appeals PA13-34 and PA13-426 and sought representations from the ministry, the municipality and another third party (the consultant) about whether section 17(1) (third party information) applied to the information on pages 179 to 193 of the three remaining records. The ministry submitted representations specifying that it would not be making any further submissions about the application of section 17(1) of the Act and advised that it intended to rely on the representations it made on January 13, 2014. It also raised procedural fairness issues and asserted, for the first time, that the records remaining at issue were not in its custody or control. The municipality objected to the disclosure of pages 179 to 193 but submitted that it could not provide representations because it had not seen these pages. The consultant did not provide any representations.

[7]  The appellant was provided with a copy of the ministry’s representations and a Notice of Inquiry and was invited make representations. He declined to do so, but confirmed that he still wished to pursue access to the remaining records at issue.

RECORDS:

[8]  The three records remaining at issue are found at pages 179 to 193 of the responsive records. They consist of a two forensic audit reports prepared by the consultant for the municipality, and a cover letter the town wrote to the OPP. [2]

PRELIMINARY MATTERS:

[9]  As noted above, the ministry raised issues that were not listed in the Notice of Inquiry in its representations. I will address each of these matters before moving to the issue of whether section 17(1)  of the Act  applies to the remaining records at issue.

[10]  The preliminary matters are whether the ministry has been prejudiced by an unfair adjudication process and/or delays in these proceedings and whether the remaining records at issue are within its custody or control.

[11]  I will also address the issue the municipality raised about whether it has received sufficient information to respond to the issues in the Notice of Inquiry.

Procedural Unfairness

[12]  The ministry says that it has been prejudiced by the deadline this office set for its representations in relation to Interim Order PO-3655-I.

[13]  The ministry explains that it made a request to vary the appeal process on November 18, 2014. It says that it did not receive a response from the previous adjudicator until December 24, 2014, at which time the adjudicator denied its request and ordered the ministry to provide representations by January 13, 2014.

[14]  The ministry alleges that the adjudicator’s decision and the deadline set for its representations were procedurally unfair. It asserts that it was denied the “standard three-week period to provide representations,” despite the fact that it had specifically asked the adjudicator for an additional three weeks to prepare its representations if she decided not to grant the relief it requested in its request to vary the appeal process. The ministry asserts that the adjudicator denied its request without any explanation.

[15]  The ministry also submits that the deadline set by the adjudicator did not take into account the holiday season. Furthermore, it says that the adjudicator advised that she would be away during the holiday period and would not return until January 13, 2014, the day the ministry’s representations were due. The ministry says that as a result, it could not request a time extension and had “no choice but to prepare the representations under what amounted, effectively, to conditions that [it] contend[s] were detrimental to [its] interests and the overall objective of creating a fair process.”

[16]  I have reviewed the communications between the ministry and the previous adjudicator assigned to this appeal and do not agree with the ministry’s assertions about procedural fairness.

[17]  First, I do not accept the ministry’s assertion that the adjudicator rejected its request to vary the process without any explanation. I have reviewed a six-page letter to the ministry from the adjudicator dated December 24, 2013 that explains why the procedural changes the ministry requested were denied. That letter outlines delays that had already occurred in the appeals and sets out the adjudicator’s reasons for requiring the ministry’s representations by January 13, 2014.

[18]  While I understand that preparing representations during the holiday period may have proved challenging, I do not agree that the deadline was procedurally unfair for the reasons that follow.

[19]  The ministry’s representations were originally due on October 24, 2013. On October 11, 2013 the ministry wrote to the adjudicator seeking a one-month extension. The ministry advised that it required the extension because of workload issues and previously scheduled holidays. The adjudicator granted the one-month extension in a letter dated October 15, 2013. In her letter to the ministry she included the following statement:

…I will grant an extension for the receipt of representations to November 25, 2013, but I will not entertain any further extension requests from the Ministry. If the Ministry’s representations are not received by this office on or before November 25, 2013, the adjudication process will continue in absence of the representations.

[20]  The ministry did not comply with that deadline. Instead, it submitted a four-page letter on November 18, 2013 proposing various procedural changes to the appeals process that involved staying the appeals. The ministry submitted that if the adjudicator did not accept its proposal, it would require three additional weeks to prepare submissions for both appeals.

[21]  The adjudicator communicated the ministry’s proposal to the other parties to the appeal. The appellant did not consent to the stays suggested by the ministry. He provided representations in response, arguing that there had already been significant delay and objecting to any further delays.

[22]  Ultimately, the adjudicator rejected the ministry’s request to vary the appeal process. She provided detailed reasons for that decision in a six-page letter dated December 24, 2013 and advised the ministry that its representations would be due January 13, 2014.

[23]  As noted previously, I recognize that this period (which amounted to one-day short of three weeks) over-lapped with the holiday season. However, given that the adjudicator had previously advised the ministry very clearly that no further extensions would be granted, it is my view that the ministry assumed the risk that its stay would not be granted and that it would still be required to provide representations.

[24]  In any event, if the ministry took issue with the process leading to Interim Order PO-3655-I, its remedy was to seek reconsideration of that order, in accordance with the IPC’s Code of Procedure. The deadline for making a request for reconsideration has long since passed. [3] In my view, allowing the ministry to raise this issue now would be procedurally unfair to the appellant.

[25]  Finally, to the extent that the ministry is asserting that, in addition to the above, the process with regard to the three remaining records at issue (the two forensic reports and the cover letter) has been procedurally unfair, I also disagree. This office invited the ministry to make new representations about whether section 17(1) applies to those records. It declined to do so and chose to rely on the representations it previously made, despite the fact that it argued it was forced to make those representations in a compressed and unfair timeframe. As such, I do not accept its assertions that it has not had sufficient opportunity to make representations for this stage of the inquiry.

Delay

[26]  The ministry submits that it has been prejudiced by delays that have occurred in these appeals and that the delay has been harmful to its interests. Specifically, it asserts the following:

Staff retirements and general staff turnover means that those who made the original decisions about these records may no longer be present to assist with this part of the appeal process. Even those of us who were here in 2013 must reacquaint ourselves with the records at issue, which creates an overall administrative burden. We note that the IPC Code of Procedure for Appeals states in section 2.01 that the “Code is to be broadly interpreted in the public interest in order to secure the most just, expeditious and least expensive determination on the merits of every appeal” (underlining added [by the ministry]). We do not believe that the adjudication of this appeal has met these requirements in light of what is, in my experience, an extraordinary delay.

[27]  I have considered the concerns raised by the ministry and while I agree that there has been delay in these appeals, and that the circumstances it describes are a potential result of delay in a proceeding, I do not agree that the ministry has been impacted in such a manner in this circumstance.

[28]  Presently, the only matter at issue remaining in these appeals is whether section 17(1)  of the Act  applies to pages 179 to 193 of the responsive records. The ministry has provided no new representations regarding the application of section 17(1)  of the Act . It provided the following statement in lieu of responding to the issues set out in the Notice of Inquiry:

We have been asked to provide representations on the application of section 17. Please note that we already provided representation on this exemption as part of our original representations. We do not intend to provide any additional representations on this exemption at this time.

[29]  The representations the ministry is referring to are brief and state only that the records remaining at issue are the proprietary material of the consultant and that the consultant and the municipality should have an opportunity to make representations on whether section 17(1)  of the Act , or any other statutory exemptions, apply. The ministry gave no indication in its representations that it was unable to make representations because of the delays in these proceedings.

[30]  I infer from reading both sets of the ministry’s representations together that it did not intend to make its own representations about the application of section 17(1)  of the Act , but rather it believed that other parties should have an opportunity to do so. As such, I fail to see how the ministry has been prejudiced by the passage of time in the manner it suggests and I reject its assertions in that regard.

Custody or control

[31]  The ministry raised, for the first time in its representations for this portion of the inquiry, the issue of whether pages 179 to 193 are within its custody or control. It argues that the ministry has only the “barest level of possession over” the remaining records at issue and makes the following assertions:

• The records were created by the consultant;
• Page 191 restricts the use of the report;
• The records have little to do with the operations or the business of the OPP; and
• The records deal primarily with matters that are relevant to the internal operations of the municipality.

[32]  The ministry did not take this position in its January 13, 2014 representations. In those representations, it submitted that it had obtained a copy of these pages as a result of an OPP law enforcement investigation.

[33]  In Interim Order PO-3655-I the adjudicator made a finding that pages 179 to 193 were within the ministry’s custody or control. [4] The ministry did not seek reconsideration or judicial review of this finding. It has not explained why it has waited until this late date to raise the issue of whether these pages are within its custody or under its control and as such, I will not permit it to add that issue to the inquiry at this late date. In my view, given the previous positions taken by the ministry with regard to these pages and the absence of an explanation for the change in its position, allowing the ministry to raise this issue now would cause additional delay that would be procedurally unfair to the appellant.

[34]  I also note that the ministry has asserted that the municipality is being deprived of its right to defend itself and argues that the municipality is being directed to respond to only one exemption in the Act , even though there could be other exemptions that are equally or more applicable for the municipality. The ministry says that if the appellant wanted the records, he should have filed an access request with the municipality since it is subject to the Municipal Freedom of Information and Protection of Privacy Act.

[35]  I disagree. The ministry responded to the appellant’s request and identified the remaining records at issue as responsive. If the ministry believed that pages 179 to 193 were not within its custody or its control, or if it believed that there was another institution that had a greater interest in the records, section 25(2) of the Act  sets out the procedure for transferring a request to another institution. According to that section, a transfer to another institution must be completed within 15 days of the request. As such, the time to consider a transfer of the request has passed.

[36]  Finally, I acknowledge the ministry’s assertion that the municipality has not had an opportunity to respond to the request. I also disagree with this assertion for the reasons set out in the next section.

Municipality’s opportunity to make representations

[37]  The municipality submits that it cannot make representations about the application of section 17(1)  of the Act  without seeing copies of the records at issue and knowing the content of the records. Specifically, it says the following:

The municipality has previously requested copies of the records at issue in order to review them and make proper submissions. Until such time as the municipality may review such records it strenuously objects to any of the records being released. Furthermore, as the municipality does not know the contents of the records at issue, it reserves the right to invoke, every applicable exemption under the Act .

[38]  I note that the municipality made the same assertion about not being able to provide representations when this office sought its representations in relation to Interim Order PO-3655-I. In that order, Adjudicator Loukidelis stated that this office advised the municipality that the IPC does not disclose records or order an institution to disclose records to a party to an appeal for the purpose of making representations. She noted that the municipality was advised to contact the ministry to request further information and to review the municipality’s own record-holdings. [5]

[39]  Despite the direction provided by this office prior to Interim Order PO-3655-I, and despite the adjudicator’s findings in that Interim Order, the municipality provided no additional information about any steps it took in that regard when it was invited to provide representations for this portion of the inquiry. In the representations the municipality submitted on February 28, 2018, it simply re-asserts that it cannot make representations without copies of the records.

[40]  Based on my review of all of the file materials I am satisfied that the municipality had sufficient information to identify the records remaining at issue. In the event that municipality no longer had copies of those records, I am satisfied that that there are a number of steps it could have taken to obtain copies. In making these determinations, I took the following points into consideration:

• The ministry notified the municipality of the appellant’s request on August 28, 2013 and provided a detailed description of the responsive records, including pages 179 to 193, which are communications;
• The description included the dates and parties to the communications;
• The communications in question were from February and March of 2013 and the municipality was either the sender or recipient of the communications; and
• The name of the consultant was included in the ministry’s description of the communications.

[41]  In my view, given the nature and subject matter of the request and the responsive records, and the fact that the responsive records were less than one year old when the request was made, it is reasonable to expect that the municipality would have had copies of these communications when it was notified of the appellant’s request and that it would have been able to identify the information at issue.

[42]  In the event that the municipality did not have copies of the responsive records, I note that it was sent a copy of a letter from the consultant to the ministry dated August 8, 2013 in which the consultant stated its position on the disclosure of the information at issue. The consultant refers to the municipality as “its client” and the letter further describes the responsive records. It seems to me that if, for some reason, the municipality did not have copies of the responsive records, and if, for some other reason, it was unable to obtain a copy from the ministry, it could have asked the consultant for copies.

[43]  Given the direction provided by Adjudicator Loukidelis with regard to obtaining copies of records at issue in Interim Order PO-3655-I, I do not accept the municipality’s reasoning for declining to provide representations. As such, I will determine whether section 17(1)  of the Act  applies to the records at issue without any input from the municipality.

DISCUSSION:

[44]  The only issue to be determined in this inquiry is whether the mandatory exemption at section 17(1) applies to the remaining records at issue, which are the two forensic audit reports prepared by the consultant for the municipality and the cover letter to the OPP. The relevant portions of that section 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, where 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.

[45]  Section 17(1) is designed to protect the confidential “informational assets” of businesses or other organizations that provide information to government institutions. [6] Although one of the central purposes of the Act  is to shed light on the operations of government, section 17(1) serves to limit disclosure of confidential information of third parties that could be exploited by a competitor in the marketplace. [7]

[46]  For section 17(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 17(1) will occur.

Parties’ representations

[47]  The ministry stated the following in its representations in response to the Notice of Inquiry this office sent for this portion of the inquiry:

We have been asked to provide representations on the application of section 17. Please note that we already provided representations on this exemption as part of our original representations. We do not intend to provide any additional representations on this exemption at this time.

[48]  The full text of the ministry’s original representations regarding section 17(1) states the following:

The Ministry has withheld pages 180 through 191 on the basis of section 17  of the Freedom of Information and Protection of Privacy Act  (FOIPPA ). These pages contain a report prepared by a consulting company with specialize expertise for a municipality, describing a review of information technology systems.

We have protected the consultant’s report on the basis that its authors have not been notified of the fact that the report is subject to disclosure pursuant to this appeal. Moreover, the consultants that authored the report [have] asserted proprietary interest of it. Page 191 states that “for the avoidance of doubt, [the] report may not be disclosed, copied, quoted or referred to in whole or in part, whether for the purposes of litigation, disciplinary proceedings or otherwise, without our prior written consent in each specific instance.”

The Ministry submits that in light of the nature of the record, the manner in which the Ministry obtained a copy of it (ie. as a result of an OPP law enforcement investigation), and the above-referenced confidentiality statement, the consultants that prepared it, and the municipality that received it, ought to be given an opportunity to make representations with respect to whether section 17 or other statutory exemptions apply to the report.

[49]  As I have noted earlier, neither the municipality, nor the consultant, provided representations that addressed the issues set out in the Notice of Inquiry they were sent by this office.

Part 1: type of information

[50]  The ministry did not specify what type of information is in the records that remain at issue. However, it did describe pages 180 to 193 as containing information about “technology systems” and I agree with that statement. Based on my review of pages 180 to 193, I agree that this sort of information qualifies as “technical information” for the purposes of section 17(1)  of the Act . Technical information has been describes as follows:

…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. [8]

[51]  The information on pages 180 to 193 was prepared by a professional and describes the process, operation and maintenance of technology systems. As such, I find that Part 1 of the three-part test is met for these pages.

[52]  The ministry made no submissions about whether page 179 contains information that would meet the criteria under Part 1 of the three-part test in section 17(1)  of the Act . I have reviewed this page, which is a cover letter, and find that it does not contain technical information, nor does it contain any of the other types of information that would meet the first part of the test. Therefore page 179 is not exempt and I will order that it be disclosed to the appellant.

Part 2: supplied in confidence

[53]  The requirement that the information be “supplied” to the institution reflects the purpose in section 17(1) of protecting the informational assets of third parties. [9]

[54]  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]

[55]  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. [11]

[56]  In determining whether an expectation of confidentiality is based on reasonable and objective grounds, all the circumstances of the case 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. [12]

[57]  As set out above, the ministry says that it withheld the remaining records at issue (the two forensic audit reports authored by the consultant at pages 180 to 193 of the records) because the consultant had not been notified of the fact that the reports may be subject to disclosure pursuant to this appeal. The ministry submitted that the consultant asserted a proprietary interest over the reports and that as a result, it should have an opportunity to speak to whether that information should be disclosed. In support of this assertion, the ministry points to a non-disclosure statement in one of the records.

[58]  As I have noted earlier, neither the municipality, nor the consultant, provided representations. Based on my review of the ministry’s representations and pages 179 to 193, I am not satisfied that Part 2 of the three-part test in section 17(1)  of the Act  is met.

[59]  In my view, even if it could be established that the reports authored by the consultant were supplied to the ministry, or that revealing the reports would reveal information that was supplied to the ministry, I am unable to conclude that the information was supplied in confidence.

[60]  While I cannot reveal the content of the records, the I note that the confidentiality clause the ministry has referred me to specifies that the report may not be disclosed without prior written consent of the consultant. The report does not expressly say that the report must be kept confidential, it says it can be disclosed with permission.

[61]  The ministry has not provided any further information about the context in which it received the reports. However, as noted earlier, page 179 is a letter from the municipality to the OPP enclosing one of the reports. Again, I cannot reveal the specific content of that record, but from it I infer that at least one of the reports was provided to the OPP by the municipality. Nothing in the letter from the municipality to the OPP says that the enclosed report, which was prepared by the consultant for the municipality, must be kept confidential.

[62]  Furthermore, I have no evidence about what, if any, consent the municipality obtained from the consultant to disclose the reports to the OPP.

[63]  In order for third party information to be supplied in confidence there must be a mutuality of understanding between the institution and the party providing the information that it is being provided on that basis. Without further evidence from any of the parties about the circumstances under which the ministry received the reports that remain at issue, I am not satisfied that any of the information in those reports was supplied in confidence and I find that Part 2 of the test has not been met.

[64]  Since the all three parts of the test to establish that section 17(1)  of the Act  applies must be met, I do not need to consider Part 3 of the test (whether the disclosure could reasonably be expected to result in any of the harms set out in that section).

[65]  As such, I find that the information at issue is not exempt from disclosure pursuant to section 17(1)  of the Act . I will order that the ministry disclose pages 179 to 193 to the appellant, with the exception of a small amount of information on pages 183 and 190 that I will address below.

Personal Information

[66]  After reviewing pages 179 to 193 I have determined there is a small amount of information on these pages that may qualify as third party personal information. I have highlighted this information on a copy of records that I will provide to the ministry with this interim order.

[67]  The ministry has not identified this information as third party personal information and the other parties have not had an opportunity to make representations about whether it is personal information that may be exempt under section 49(b) (personal privacy) of the Act .

[68]  As such, the ministry must not disclose the highlighted information at this time. Once the appellant has received a copy of the redacted records he must contact this office within the amount of time set out below if he wishes to pursue access to the remaining information.

ORDER:

1. I do not uphold the ministry’s application of the exemption in section 17(1)  of the Act .
2. I order the ministry to disclose pages 179 to 193 to the appellant, excluding the information I have highlighted on the copy of the records provided to the ministry with this interim order, by December 3, 2019 but not before November 26, 2019. To be clear, the highlighted information should not be disclosed.
3. The appellant must notify this office by December 30, 2019 if he wishes to pursue access to the information that I ordered not be disclosed in order provision 2.

Original signed by		October 28, 2019
Meganne Cameron
Adjudicator