General

• In this order, the requested record was a Letter of Credit provided to the Township regarding the municipal serving of a subdivision and any Letter(s) of Credit provided to the Township as collateral security for any municipal infrastructure works. The Commission stated that the record does not "belong to" the institution. The record is evidence of an undertaking by the financial institution to pay certain amounts to the Township, on certain conditions and, as such, it is of value to the Township. The term "belongs to" refers to "ownership" by an institution, and that the concept of "ownership of information" requires more than the right simply to possess, use or dispose of information, or control access to the physical record in which the information is contained. For information to "belong to" an institution, the institution must have some proprietary interest in it either in a traditional intellectual property sense - such as copyright, trade mark, patent or industrial design - or in the sense that the law would recognize a substantial interest in protecting the information from misappropriation by another party, where there is inherent value in the information and the necessary "quality of confidence". (Order #MO-1282, P-1114, PO-1763, PO-1921)

• This section can be categorized in a two fold manner:(c)(d)and(e) take into consideration the consequences which would result to an institution if a record was released;(a) and (e) are concerned with the type of the record.(Order # M-862)



• In all cases where a claim for exemption is made under this section, an onus rests with the institution to demonstrate that the harms envisioned are present or reasonably foreseeable. In the absence of evidence to support the claim, the information should be disclosed. (Orders #P-48, P-141, P-162, P-163, P-472, P-520, P-529, P-532, P-581)



• There is a public interest in obtaining information about Ontario government joint business ventures with private sector companies. In a postscript of this decision, the Commissioner stated that where private sector organizations enter into arrangements with government, they must expect public scrutiny. He suggested that at the time a new arrangement is formed, a public document be prepared by the appropriate institution outlining the nature of the arrangement. The document could identify those who are involved in the arrangement and the nature of their involvement and other information, which are not otherwise exempt under the Act. (Order #P-532)



• In this order, the requested record was a Letter of Credit provided to the Township regarding the municipal serving of a subdivision and any Letter(s) of Credit provided to the Township as collateral security for any municipal infrastructure works. The Commission stated that the record does not "belong to" the institution. The record is evidence of an undertaking by the financial institution to pay certain amounts to the Township, on certain conditions and, as such, it is of value to the Township. The term "belongs to" refers to "ownership" by an institution, and that the concept of "ownership of information" requires more than the right simply to possess, use or dispose of information, or control access to the physical record in which the information is contained. For information to "belong to" an institution, the institution must have some proprietary interest in it either in a traditional intellectual property sense - such as copyright, trade mark, patent or industrial design - or in the sense that the law would recognize a substantial interest in protecting the information from misappropriation by another party. (Order #mo-1282)




ss.(1)(a)




• This provision requires that the information itself has an intrinsic value. For example, it could be said to have monetary value if it is going to be published and sold. In Order #P-487 the Commission ruled that minutes of the Board of Directors of SkyDome do not contain information that has monetary value. (Orders #P-219, P-248, P-270, P-288, P-290, P-346, P-487, P-581, M-326, P-729, P-797, M-654)



• "Monetary value" means the information has an intrinsic value. The fact that information could be sold to third parties for their use in subsequent negotiations with the institution, or that such information could be sold to the media because of their interest in the subject matter does not mean that the information has an intrinsic value. (Order #P-581)



• A plan of survey that was paid for by individuals and sent to an institution is not subject to this provision. While it has monetary value, it does not have value for the institution. As well, the institution has not shown that it intends to sell or use the records for gain. (Order #P-290)



• Records are not exempt under ss.(1)(a) where they contain information concerning the status of litigation that can be discerned easily from publicly available court records. (Order #P-141)



• Technical information is information belonging to an organized field of knowledge, which would fall under the general categories of applied sciences or mechanical arts. The questions and ideal answers used in job competitions would not be included in the meaning of the term. (Orders #P-454, P-662)



• The City could not establish that the list of names and addresses of various businesses and other non-residential entities which received services from the Works Department of the City was exempt under this provision. While the City asserted that the list was valuable to private waste removal companies, the Commission found that there was insufficient evidence to support the assertion. Indeed, on termination of the waste collection service, the City provided the recipients listed in the record with an information package and a list of approved waste removal contractors, to assist them in the selection of a waste removal contractor. (Order #M-326)



• Portions of the Ontario Northland Transportation Commission's President's Reports were not exempt under this provision. The institution had no intention of publishing or disseminating this information in a way that would result in some form of monetary payment and, as a result, the Commission was not satisfied that this exemption applied. (Order #P-627)



• Subsection (1)(a) exempts classes or types of records based on content. A technical assessment of the unique design of a structure such as the SkyDome falls within the exemption. (Orders #P-163, P-203)



• Scientific information contained in a research project that was developed by an institution was shown to have potential monetary value. Subsection (1)(a) applied. (Order #P-270)



• A list of addresses kept by the Ontario Lottery Corporation was exempt under this provision. "Commercial" information is information that relates solely to the buying, selling or exchange of merchandise or services. The addresses of Sports Select Lottery outlets qualify as commercial information. These addresses were the property of the Ontario Lottery Corporation in that it created the list as a result of its contractual relations with its retailers and it is the only source of the list. The Commission accepted that the list is a saleable asset with potential monetary value. The institution provided corroborating evidence from a supplier of mailing lists to support its position that the list had a market value that exceeded several thousand dollars. (Orders #P-636, P-662, P-493)



• Invoices noting the quantity and category of liquor products purchased by a consulate were exempt under this provision. The Liquor Control Board of Ontario (LCBO) established that this information was commercial or financial, that it belongs to both the LCBO and the consulate and that it has monetary value. The Commission held that the fact that both the LCBO and the consulate had joint proprietary interest in the information did not vitiate the application of this exemption. Regarding monetary value, the LCBO established that there is a market for sale of data information and that it will be selling that data shortly. (Order #P-797)

 

• Basic identifying data about a business such as name, address and a brief description of the business submitted on a Business Names Act registration form is not "commercial" information. No commercial relationship exists between the business and the Ministry of Consumer and Commercial Relations, nor is the information related to the buying, selling or exchange of goods or services. The fact that such information may have a "monetary value" (that is, it is capable of being bought or sold) does not necessarily mean the information is "commercial information". (Order #P-1114)



• Merely because businesses or other entities are required by law to provide the government with information does not necessarily mean that the government "owns" the information in the sense of having copyright, trade mark or other proprietary interest in the information. In this case, the government could not claim that Business Names Act registration information such as a business name, address or description "belongs to the government". The government is merely the repository of this information. Unless the government alters, compiles or otherwise manipulates the information to make something different from the raw data originally supplied, the government cannot be said to have any ownership interest in the information for the purposes of this exemption. The storage of forms on microfilm does not constitute a reworking or rearrangement of information giving a ministry a right of ownership in a newly created record. (Order #P-1114)



• Information contained in a report does not belong to the institution where an institution paid an outside consultant for a report and all copyright was reserved to the consultant by the contract. (Order # M-862)



• The software design, and the database management system is technical information.(Order #P-1281)



• The fact that an institution has authority to collect, use and control physical access to information, does not necessarily mean that the information belongs to the government. Factual non-confidential business registration data provided to the Government of Ontario by individual businesses in compliance with statutory or regulatory requirements is not in itself subject to copyright because it is not an original creation of the Government. However, after the institution inputs the data (data elements) into a relational database, designs software to organize the data, and adds middleware for search and query functions, the institution has created a separate literary work for the purposes of copyright law. The institution has selected or arranged the data elements in a way that constitutes a compilation. The database as a whole therefore belongs to the institution. (Order #P-1281)



• "Monetary value" in a database of business registration information was not established by the fact that the institution could charge fees for access to the information. Access fees set by regulation to recover costs related to the administration of a statutory scheme are not evidence of monetary value, nor could such information be considered "sold". The fact that the institution did intend to licence the database and require compensation for access did however, establish the monetary value of the database. (Order #P-1281)



• Manuals of techniques and procedures used in the forensic sciences field did not have monetary value. The information in the manuals was available from other sources. (Order #P-1487)



• The Commission found that a report, and related records, prepared by Ontario Hydro estimating electricity demand and setting out supply options to meet Ontario's future needs contained financial information that has monetary value. Now that Hydro must compete in the electricity generation and distribution marketplace, and divest itself of a significant portion of it generating capacity, Hydro's competitors would find monetary value in the information contained in the records. (Order #P-1740)



• In this order, the requested record was a Letter of Credit provided to the Township regarding the municipal serving of a subdivision and any Letter(s) of Credit provided to the Township as collateral security for any municipal infrastructure works. The Commission ruled that the record clearly contained financial information because it indicated that the Township, as beneficiary, could draw up to a particular amount of money on the named financial institution, as issuer, and as requested by the affected person, subject to certain terms and conditions. (Order #MO-1282)



• In this order, the requested record was a Letter of Credit provided to the Township regarding the municipal serving of a subdivision and any Letter(s) of Credit provided to the Township as collateral security for any municipal infrastructure works. The Commission found that the institution did not establish that disclosure of the information in the record could reasonably be expected to result in the Township not being able to rely on the terms of the Letter of Credit to receive payment from the financial institution. The Commission added that thrust of this exemption is to protect the government's competitive position in the marketplace, and is not designed to shield from public scrutiny the keeping of public accounts, including evidence of security on projects. Hence, this section did not apply. (Order #MO-1282)

• In this order, the requested record was a Letter of Credit provided to the Township regarding the municipal serving of a subdivision and any Letter(s) of Credit provided to the Township as collateral security for any municipal infrastructure works. The Commission stated that the record does not "belong to" the institution. The record is evidence of an undertaking by the financial institution to pay certain amounts to the Township, on certain conditions and, as such, it is of value to the Township. The term "belongs to" refers to "ownership" by an institution, and that the concept of "ownership of information" requires more than the right simply to possess, use or dispose of information, or control access to the physical record in which the information is contained... (Order #MO-1282, P-1114, PO-1763, PO-1921, MO-1462)






ss.(1)(a) and (c)




• Subsections (a) and (c) may not be applied when the information is in the public domain through a bona fide publication by the media. (Orders #P-87, P-270)




ss.(1) (b), (c), (d) and (g)--"Reasonable Expectation"




• The Commission confirmed that "reasonable expectation of harm" required that the institution establish a clear and direct linkage between the disclosure of the information and the harm alleged. The Commission approved of the position taken by the Federal Court of Appeal in Canada Packers Inc. v. Canada (Minister of Agriculture) [1989] 1 F.C. 47 at 59-60, where the Court indicated that a "reasonable expectation of probable harm" was required. It also approved of the Federal Court Trial Division's decision in The Information Commissioner of Canada v. The Prime Minister of Canada, unreported, November 19, 1992, where the Court stated that the mere "possibility" of harm was not sufficient. The Court held that descriptions of possible harm, even in substantial detail, are insufficient in themselves. Justice Rothstein stated that: The Court must be given an explanation of how or why the harm alleged would result from disclosure of specific information. If it is self-evident as to how and why harm would result from disclosure, little explanation need be given. Where inferences must be drawn, or it is not clear, more explanation would be required. The more specific and substantial the evidence, the stronger the case for confidentiality. The more general the evidence, the more difficult it would be for a Court to be satisfied as to the linkage between disclosure of particular documents and the harm alleged...While the fact that the same or similar information is public is not necessarily conclusive of the question of whether or not there is a reasonable expectation of harm from disclosure of the information sought to be kept confidential, the burden of justifying confidentiality, would...be more difficult to satisfy.(Orders #P-534, M-202, P-555, P-557, M-221, M-242, P-627, M-333, P-705)




ss.(1)(b)




• Where an employee prepared a research paper and where she provided an affidavit to the Commission indicating that, following internal peer review, she intended to publish the paper in an appropriate scientific forum, the Commission was satisfied that this exemption applied. The Commission found that premature release of the record could reasonably be expected to deprive her of priority of publication. (Order #P-811)




ss.(1)(c)




• The propriety of a proposed land sale cannot be a factor in determining whether or not this exemption applies. The commission can only make a decision based on the evidence and arguments made by the institution. (PO-1853) The commission found that release of records outlining strategies for the sale of property could prejudice its competitive position when the sale of the property was not complete. The release of this information could have a prejudicial impact should the property have to be re-marketed. (PO-1853)

 

• The standard of proof regarding this exemption is as stringent as s.17 [FIPPA] \ s.10 [MFIPPA]. Here the institution did not provide evidence to suggest that a drop in competitive position would result if the information was released. The expectation of harm to an institution's economic interests or competitive position must not be fanciful, imaginary or contrived, but based on reason. The mere possibility of harm is not sufficient. At a minimum, the institution must establish a clear and direct linkage between the disclosure of the information and the harm that is alleged. In addition, the evidence to support the expectation must be detailed and convincing. (Orders #P-141, P-162, P-163, P-204, P-218, P-248, P-263, P-346, P-398, M-27, M-37, M-67, M-202, M-130, P-463, P-487, M-209, P-581, M-210, M-221, M-273, P-641, P-705, M-326, P-767, P-768, P-769, P-964)



• Although private sector parties may demand complete confidence in their business dealings with Crown agencies, the institution's economic interests are not necessarily prejudiced by disclosure. (Order #P-55)



• It is not tenable to argue that the disclosure of a collection of research materials, with some annotations appended by the person who collected them, could compromise the land claims negotiation process with aboriginal people; possible consequences of disclosure are not sufficient to satisfy this exemption. The institution putting forth this claim must demonstrate a clear, specific and understandable linkage between its allegations of harm and disclosure of the records at issue. (Orders #P-454, P-463)



• The disclosure of anonymized school test results, which may reflect negatively on the school, cannot reasonably be expected to prejudice the economic interests of the school or its competitive position. (Orders #M-27, M-37, M-534)



• In this case, a breakdown of the total annual operating costs of a part of an institution was so general in nature, that the disclosure of the record was authorized. (Order #M-92)

 

• The fact that disclosure of pay equity evaluation sheets may result in disclosure to the union and may be misused to convince an arbitrator to increase rates of pay for employees is not sufficient to apply this provision. (Order #M-117)



• This provision does not contemplate prejudice to any and all economic interests of an institution in its relations with its employees; rather, it deals with records that if disclosed could reasonably be expected to prejudice an institution in the competitive marketplace, interfere with its ability to discharge its responsibilities in managing the provincial economy or adversely affect the government's ability to protect its legitimate economic interests. (Order #P-441)



• This provision did not apply to tender documents disclosing the prices paid by successful bidders for surplus inventory sold by Ontario Hydro. The Commission ruled that the disclosure of the selling prices would not undermine the sealed bid process or prejudice the economic interests of the institution. (Order #P-520)



• Disclosure of parts of the City contract with the Quebec Nordiques regarding the American Hockey League team coming to Cornwall was exempt under this provision. Disclosure of the financial terms of the agreement could reasonably be expected to prejudice the City's competitive position and / or its economic interests. (Order #M-242)



• This exemption was satisfied where minutes of meetings disclosed Carload Freight information which would detrimentally affect the Ontario Northland Transportation Commission by providing competitors, especially highway carriers, with market data and other critical information. (Order #P-627)



• The Ontario Lottery Corporation was unable to provide sufficient evidence to the Commission to establish the relationship between disclosure of severance payments paid to distributors and the types of contracts it is in the process of negotiating. Similarly, the institution could not establish that the disclosure of the distributors' past gross earnings would be exempt under this provision. (Order #P-705)



• An internal management document that clarifies the terms of the agreement, which ended the labour dispute, is not exempt. (Order #P-398)



• Information such as the monetary terms of a proposed sale of SkyDome, the financing details, the structuring of the purchasing groups and related details of a possible sale of SkyDome contained in a letter of intent negotiated between SkyDome and potential purchasers was exempt. A list of outstanding court cases involving SkyDome attached to the letter was not exempt, since the information was publicly available. (Order #P-581)



• The release of a list of books provided by teachers to college bookstores could reasonably be expected to prejudice the institution's economic interest and competitive position. (Orders #P-109, P-110)



• The disclosure of a prose description of financial data is the same as disclosure of actual financial forecasts; both would satisfy the test in ss.(1)(c). (Order #P-248)



• A mailing list of an institution's corporate clients has an intrinsic value to the institution. In this case the information is essential to the institution's marketing and promoting of its services and is used to generate income. As well, once the list is released, it could be sold or given to other companies or individuals that are in competition with the institution. As a result, it is exempt under this provision. (Order #M-67)



• Disclosure of the inducements given by a landlord to an institutional tenant for certain leasehold premises did not contravene this provision. The Commission considered that lessors generally regard the provincial government as a desirable tenant and that the commercial real estate market in the province is in a depressed state with high vacancy rates. Consequently the Commission found that even if the inducements were made public, the lessors would continue to have a strong incentive to rent commercial premises to the provincial government. While the Commission acknowledged that the institution would not operate on a level field with other lessors if disclosure was ordered, it ruled that leases for government premises are obtained with public funds such that the information ought to be available under Act. (Order #P-829)



• The Ontario Lottery Corporation successfully demonstrated a reasonable expectation of prejudice to its economic interests when it explained that one of its business activities is that of developing and marketing new lottery games for sale to the public. First, the market research it commissions allows it to develop unique sales and marketing strategies for its various lottery products. Secondly, the market in which it offers its various lottery games is becoming increasingly competitive and the studies commissioned by OLC would be of substantial value to persons or entities operating gaming activities or consulting services to the same. (Order #P-941)



• A survey that portrays an unflattering picture of a ministry aviation program was not exempt under this provision. (Order #P-964)



• The Commission found that release of the terms and conditions on which a school board agreed to withdraw objections to a development project could jeopardize negotiations with other developers in future cases. The fees paid to the board were not exempt. (Order #M-712)



• Drafts of agreements prepared during the negotiations between the Ontario Casino Corporation and Windsor Casino Limited prior to the finalization of the Interim Operating Agreement were properly exempt. Because there were a number of interlinking issues involved in the negotiations of both agreements, the Commission agreed that the OCC may still claim its interests in negotiating the agreement for the permanent casino may be harmed. (Order #P-1026)



• The disclosure of Nuclear Power Station evaluation reports could be used by competitors to gain advantage as the reports do not present a balanced picture of safety and competitors are not required to make similar disclosures. Although this exemption applied to the reports, the Commission ordered disclosure under provisions of s.23 FIPPA/s.16 MFIPPA. (Order #P-1190). The Commission decided the exemption applied to financial analyses regarding restructuring or privatization. However, public interest was not compelling enough under section 23 to warrant release since public safety was not an issue. (Order #P-1210)



• The Commission ruled there is no market for manuals of forensic sciences, techniques and procedures. Thus, this provision did not apply. (Order #P-1487)



• This provision did not apply to information that was mainly factual and simply reported on the findings of reviewers about the accounting and financial practices used for an institution-funded project. While the reviewers commented on the appropriateness of each aspect of the project, disclosure of these comments could not reasonably be expected to prejudice the institution's interests. It was also not reasonable to assume that the institution's interests could be prejudiced because the accounting and financial procedures were well known to the requester. (Order #P-1568)



• This provision did not apply to a contract for personal services negotiated between the institution and an individual. The institution was unable to establish that any economic harms would be caused by disclosing the contract. (Order #P-1545)



• Where a party resisting disclosure pursuant to section 18(1)(c) fails to provide detailed and convincing evidence, the claim for exemption will not always be defeated where harm can be inferred from other circumstances. However, it would only be in exceptional circumstances that the determination of whether an exemption applies would be made on the basis of anything other than the records at issue and the evidence provided by a party in discharging its onus. (Order #PO-1745)

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