ORDER PO-4384

Appeal PA18-00737

Ministry of Health

April 28, 2023

Summary: A company that manages two community laboratories appealed a decision by the Ministry of Health (the ministry) to disclose 59 records to a requester under the Freedom of Information and Protection of Privacy Act  (the Act ). These records include an Ontario Transfer Payment Agreement, letters between the ministry and the community laboratories, performance reports, wait time reports, quality improvement plans, business cases, client satisfaction surveys, access and collection specimen reports, and hours of operation reports. The company claims that these records are exempt from disclosure under the mandatory exemption for third party information in section 17(1)  of the Act . In this order, the adjudicator finds that the records are not exempt from disclosure under section 17(1). He upholds the ministry’s decision to disclose the records to the requester.

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

Orders Considered: Order PO-2435.

OVERVIEW:

[1] The appellant is a company that manages two community laboratories. It objects to a decision by the Ministry of Health (the ministry) to disclose to a requester records that contain information about those community laboratories. It submits that these records are exempt from disclosure under the mandatory exemption in section 17(1) (third party information) of the Freedom of Information and Protection of Privacy Act  (the Act ).

[2] This appeal came about as a result of an access request under the Act  made by a lawyer. His request was for access to the following records:

Notes, correspondence, memoranda, reports, meeting and/or briefing notes, and agreements relating to the community laboratories - for the period of January 1, 2011 until September 1, 2016.

Internal and external notes, communications, records, relating to:

1. The development, review, and implementation of the Deloitte Lab Services Review – Final Report – dated February 2012;

2. The development, review, and implementation of the KPMG Lab System Modernization Blueprint and High-Level Work plan dated February 2013;

4. The development, review and implementation of the Modernization of the Community Laboratory Sector undertaken in 2016; We’re simply looking for correspondence (including emails) from/to/amongst the following Public Servants (including amongst themselves) and to/from/amongst the public servants below and the Community Laboratories:

Public Servants: [21 named individuals];

Community Laboratories: [8 named laboratories];

5(b) The reduction and subsequent implementation of the $50m laboratory sector funding cut articulated in the 2015 Ontario Provincial Budget; and the 2015-2016 Access and Performance Transition Fund for each of the community laboratories.

[3] The requester subsequently clarified his access request in the following manner:

1. The precise timeframe for the correspondence is for the period of January 1, 2011 until September 1, 2016.
2. Clarification 5b), The requester is looking for “Any of the requested documents/files relating at all with the 2015-16 Access and Performance Transition Fund for each of the community laboratories”.

[4] In response, the ministry located records that contain information about a number of community laboratories, including the two managed by the appellant. These records include an Ontario Transfer Payment Agreement, letters between the ministry and the community laboratories, performance reports, wait time reports, quality improvement plans (QIPs), business cases, client satisfaction surveys, access and collection specimen reports, and hours of operation reports.

[5] In accordance with the notification requirements in section 28  of the Act , the ministry then notified the company that manages the two community laboratories and asked for its views as to whether the records that contain information about it are exempt from disclosure under section 17(1)  of the Act .

[6] In response, the company advised the ministry that it consented to the ministry disclosing some records in full to the requester. However, it stated that parts of one record and a number of records in full should be withheld under section 17(1). After considering the company’s views, the ministry sent a decision letter to both the company and the requester which stated that it had decided to disclose all of the records in full.

[7] The company appealed the ministry’s access decision to the Information and Privacy Commissioner of Ontario (IPC). The IPC assigned a mediator to this appeal, who attempted to resolve the issues in dispute between the parties.

[8] This appeal was not resolved during mediation and was moved to adjudication, where an adjudicator may conduct an inquiry to review an institution’s access decision. The adjudicator initially assigned to this appeal sent a Notice of Inquiry to the company and invited it to submit representations that explain why it believes the section 17(1) exemption applies to the information in the records that the ministry decided to disclose to the requester. In response, the company submitted representations, which are the submissions that it made to the ministry at the access request stage.

[9] This appeal was subsequently transferred to me to complete the inquiry.[1] In this order, I find that the company has failed to establish that any of the information in the records at issue is exempt from disclosure under section 17(1)  of the Act . I uphold the ministry’s decision to disclose the records to the requester.

RECORDS:

[10] The following 59 records are at issue in this appeal because the company objects to the ministry’s decision to disclose them to the requester:

Records at Issue

Record number[2]	General description of record	Ministry’s decision	Exemption claimed by company
34	Ontario Transfer Payment Agreement between ministry and community laboratory	Disclose in full	Section 17(1) but only for certain parts of record (Schedule B - page 18 of 32, Schedule D - page 26 of 32, and Schedule E page 28 of 32 – section C)
39	Letter from ministry to community laboratory	Disclose in full	Section 17(1) for entire record
346	Baseline performance report	Disclose in full	Section 17(1) for entire record
354	Year end performance report	Disclose in full	Section 17(1) for entire record
375	Letter to ministry from community laboratory	Disclose in full	Section 17(1) for entire record
383	Performance funding report	Disclose in full	Section 17(1) for entire record
384	Business case	Disclose in full	Section 17(1) for entire record
389	Client satisfaction survey	Disclose in full	Section 17(1) for entire record
398	Performance funding report	Disclose in full	Section 17(1) for entire record
399	Business case	Disclose in full	Section 17(1) for entire record
410	Changes in hours of operations report	Disclose in full	Section 17(1) for entire record
420	Year end performance report	Disclose in full	Section 17(1) for entire record
443	Performance measures document	Disclose in full	Section 17(1) for entire record
450	Closure/reduction in hours of operation document	Disclose in full	Section 17(1) for entire record
458	Client satisfaction survey	Disclose in full	Section 17(1) for entire record
464	Interface enhancement plan template	Disclose in full	Section 17(1) for entire record
469	Changes in hours of operations report	Disclose in full	Section 17(1) for entire record
476	Changes in hours of operations report	Disclose in full	Section 17(1) for entire record
487	Remote rural funding report	Disclose in full	Section 17(1) for entire record
600	QIP	Disclose in full	Section 17(1) for entire record
608	QIP	Disclose in full	Section 17(1) for entire record
622	Closure/reduction in hours of operation document	Disclose in full	Section 17(1) for entire record
623	Closure/reduction in hours of operation document	Disclose in full	Section 17(1) for entire record
629	Access and specimen collection report	Disclose in full	Section 17(1) for entire record
633	Access and specimen collection report	Disclose in full	Section 17(1) for entire record
634	Performance reports	Disclose in full	Section 17(1) for entire record
643	Net new hours of operation report	Disclose in full	Section 17(1) for entire record
657	New sites implementation report	Disclose in full	Section 17(1) for entire record
666	New sites proposals	Disclose in full	Section 17(1) for entire record
669	Performance report	Disclose in full	Section 17(1) for entire record
688	Patient survey	Disclose in full	Section 17(1) for entire record
704	Letter to ministry from community laboratory	Disclose in full	Section 17(1) for entire record
727	Wait time report	Disclose in full	Section 17(1) for entire record
728	Wait time report	Disclose in full	Section 17(1) for entire record
781	Ontario Laboratories Information Standard (OLIS) quarterly attestations	Disclose in full	Section 17(1) for entire record
782	OLIS support proposal	Disclose in full	Section 17(1) for entire record
789	Interface enhancement projects update	Disclose in full	Section 17(1) for entire record
795	Letter from community laboratory to ministry	Disclose in full	Section 17(1) for entire record
796	Letter and QIP innovation business case	Disclose in full	Section 17(1) for entire record
797	QIP innovation business case	Disclose in full	Section 17(1) for entire record
798	QIP innovation business case	Disclose in full	Section 17(1) for entire record
799	QIP innovation business case	Disclose in full	Section 17(1) for entire record
800	QIP innovation business case	Disclose in full	Section 17(1) for entire record
801	QIP innovation business case	Disclose in full	Section 17(1) for entire record
802	Letter from community laboratory to ministry	Disclose in full	Section 17(1) for entire record
803	QIP innovation business case	Disclose in full	Section 17(1) for entire record
804	QIP innovation business case	Disclose in full	Section 17(1) for entire record
805	QIP innovation business case	Disclose in full	Section 17(1) for entire record
806	QIP innovation business case	Disclose in full	Section 17(1) for entire record
807	QIP innovation business case	Disclose in full	Section 17(1) for entire record
808	QIP innovation business case	Disclose in full	Section 17(1) for entire record
852	Letter from community laboratory to ministry and QIP innovation business case	Disclose in full	Section 17(1) for entire record
913	Progress report	Disclose in full	Section 17(1) for entire record
918	Performance report	Disclose in full	Section 17(1) for entire record
923	Performance report	Disclose in full	Section 17(1) for entire record
935	Performance report	Disclose in full	Section 17(1) for entire record
942	Performance report	Disclose in full	Section 17(1) for entire record
950	Hours of operation report	Disclose in full	Section 17(1) for entire record
956	Hours of operation report	Disclose in full	Section 17(1) for entire record

DISCUSSION:

[11] The sole issue in this appeal is whether the mandatory exemption at section 17(1)  of the Act  applies to the above records. The company claims that there is information in these records that is exempt from disclosure under section 17(1).

[12] The purpose of section 17(1) is to protect certain confidential information that businesses or other organizations provide to government institutions,[3] where specific harms can reasonably be expected to result from its disclosure.[4] Section 17(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.

[13] For section 17(1) to apply, the party arguing against disclosure 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;
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.

[14] Given that the ministry has decided to disclose the records at issue, the onus is on the company to establish that the information it submits should be withheld meets the requirements of the section 17(1) exemption.

Summary of company’s representations

[15] As noted in the overview section of this order, a Notice of Inquiry was sent to the company at the outset of adjudication and it was invited to submit representations that explain why it believes the section 17(1) exemption applies to the information in the records that the ministry decided to disclose to the requester. The company submitted representations, which are the submissions that it made to the ministry at the access request stage.

[16] With respect to the first part of the test, the company submits that all of the records at issue contain proprietary information of both a commercial and financial nature, and that community laboratories compete with each other in providing services. It states that the release of hours of operation, funding initiatives, and new projects, which the records contain, would impact their ability to operate.

[17] For the second part of the test, the company submits that the records at issue were provided to the ministry to fulfill its contractual requirements, and that at no times was it made clear that the records would be available for public disclosure. It states that the records at issue contain proprietary information, and the documents it already agreed to being disclosed, fulfill the public interest in knowing how much the government is spending.

[18] For the third part of the test, the company submits that the release of the records at issue would significantly prejudice its community laboratories’ competitive position as it relates to their competitive standing in the community laboratory sector. It states that the records at issue could be used by a competitor or third party to undermine the community laboratories’ competitiveness in the marketplace. It submits that community laboratories compete for market share, and disclosing the records would allow their competitors to ascertain proprietary information that would impact their competitiveness. It states that it has not fully costed the scope of losses that would result if the records are disclosed, but claims that given the nature of the information in the records, its community laboratories’ competitiveness would be significantly impacted.

Analysis and findings

[19] For the reasons that follow, I find that even if I were to accept that there is information in the records at issue that meets parts 1 and 2 of the section 17(1) test, the company’s representations fall short of the type of evidence required to show that the harms requirement in part 3 of the section 17(1) test is met.

Parts 1 and 2 – type of information and supplied in confidence

[20] Parts 1 and 2 of the test for the application of section 17(1) require that the company establish that the records reveal a trade secret or scientific, technical, commercial, financial or labour relations information that was supplied in confidence.

[21] Before assessing whether the company has met part 3 of the section 17(1) test, I have decided to briefly examine whether one specific record meets the requirements of part 2 of the test. Record 34 is a contract between a community laboratory and the ministry. This contract is known as an Ontario Transfer Payment Agreement and includes several schedules. The company objects to the ministry disclosing certain pages from the schedules, which include project specific information such as maximum funds available to the community laboratory and the specific payments that would be made to the community laboratory under a payment plan.

[22] To satisfy part 2 of the section 17(1) test, the party resisting disclosure must show that the information in the records has been “supplied” to the institution in confidence, either implicitly or explicitly. Previous IPC orders have found that the contents of a contract between an institution and a third party will not normally qualify as having been “supplied” for the purpose of section 17(1). Contractual provisions are generally treated as mutually generated, rather than “supplied” by the third party, even where the contract is preceded by little or no negotiation or where it reflects information that originated from one of the parties.[5]

[23] There are two exceptions to this general rule:

1. The “inferred disclosure” exception. This exception applies where disclosure of the information in a contract would permit someone to make accurate inferences about underlying non-negotiated confidential information supplied to the institution by a third party.[6]
2. The “immutability” exception. This exception applies where the contract contains non-negotiable information supplied by the third party. Examples are financial statements, underlying fixed costs and product samples or designs.[7]

[24] In its representations, the company does not address whether the information in the Ontario Transfer Payment Agreement was “supplied” for the purpose of part 2 of the section 17(1) test, nor does it address whether the specific information in the schedules that it submits should be withheld under section 17(1) falls within the “inferred disclosure” or “immutability” exceptions.

[25] I have examined the record and the information at issue and am satisfied that the agreement, including the specific funding and payment information in the schedules, was the product of a mutual negotiation process between the community laboratory and the ministry. It cannot, therefore, be said, that the community laboratory “supplied” the information in the agreements to the ministry. There is no evidence that would lead me to conclude that the “inferred disclosure” or “immutability” exceptions apply to the information that the company submits should be withheld under section 17(1).

[26] In these circumstances, I find that the company has failed to satisfy part 2 of the section 17(1) test with respect to the information in record 34 that it submits should be withheld. I find, therefore, that this information is not exempt from disclosure under section 17(1).

Part 3 – harms

[27] I will now assess whether the company has met part 3 of the section 17(1) test for the information in the remaining records at issue. This part requires that the company establish that the prospect of disclosure of the information in the records gives 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.

[28] The party resisting disclosure of the information in a record cannot simply assert that the harms under section 17(1) are obvious based on the record. It must provide detailed evidence about the risk of harm if the record is disclosed. While harm can sometimes be inferred from the records themselves and/or the surrounding circumstances, parties should not assume that the harms under section 17(1) are self-evident and can be proven simply by repeating the description of harms in the Act .[8]

[29] The party resisting disclosure must show that the risk of harm is real and not just a possibility.[9] However, it does not have to prove that disclosure will in fact result in harm. How much and what kind of evidence is needed to establish the harm depends on the context of the request and the seriousness of the consequences of disclosing the information.[10]

[30] The records at issue include parts of the schedules to an Ontario Transfer Payment Agreement, letters between the ministry and the community laboratories, performance reports, wait time reports, QIPs, business cases, client satisfaction surveys, access and collection specimen reports, and hours of operation reports. Examples of the various types of information in the records include the maximum funding amounts that the company’s community laboratories received from the ministry and the hours of operation of specific sites.

[31] As noted above, the company submits that the information in the records could be used by a competitor or third party to undermine the community laboratories’ competitiveness in the marketplace. It states that its community laboratories compete for market share, and submits that disclosing the information would allow their competitors to ascertain proprietary information that would impact their competitiveness.

[32] I do not find these submissions to be persuasive. Although the company claims that disclosing the information in the records would prejudice significantly the competitive position of its community laboratories, it does not explain in sufficient detail how their competitors could specifically use this information in a manner that could reasonably be expected to significantly prejudice their competitive position, as required by section 17(1)(a), or result in an undue loss for them or an undue gain for their competitors, as required by section 17(1)(c).

[33] Moreover, the IPC has found that the fact that a third party working for the government may be subject to a more competitive bidding process for future contracts if the amount it charges for services rendered is disclosed, does not, in and of itself, significantly prejudice their competitive position or result in undue loss to them.[11] Consequently, even though the company submits that disclosing the information in the records would significantly prejudice the competitive position of its community laboratories, I find that the fact that they may be subject to a more competitive application process for obtaining ministry funding could not reasonably be expected, in and of itself, to significantly prejudice their competitive position or result in an undue loss for them or an undue gain for their competitors.

[34] In my view, the company’s representations are insufficiently detailed and persuasive to establish that disclosing the information in the records at issue could reasonably be expected to lead to the harms set out in sections 17(1)(a) or (c). In addition, there is no evidence before me to establish that the second harm set out in section 17(1)(a) or the harms in sections 17(1)(b) or (d) could reasonably be expected to occur if the information in the records at issue is disclosed to the requester. With respect to section 17(1)(b), the company stated that it was not aware that the information it provided to the ministry would be available for public disclosure. However, there is no evidence before me to suggest that disclosing this information could reasonably be expected to result in similar information not being provided to the ministry in the future.

[35] I find, therefore, that the company has failed to meet the harms requirement in part 3 of the section 17(1) test. Given that the company must satisfy each part of the section 17(1) three-part test to establish that the exemption applies, I find that its failure to meet part 3 means that the 59 records at issue are not exempt from disclosure under section 17(1).

ORDER:

1. I uphold the ministry’s decision to disclose the 59 records to the requester and dismiss the appeal. I order the ministry to disclose the records to the requester by June 2, 2023 but not before May 29, 2023.
2. I reserve the right to require the ministry to provide me with a copy of the records that it discloses to the requester in accordance with order provision 1.

Original signed by:		April 28, 2023
Colin Bhattacharjee
Adjudicator