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Freedom of Information and Protection of Privacy Act (FIPPA)(1)

. K-Bro Linen Systems Inc. v. Ontario (Information and Privacy Commissioner)

In K-Bro Linen Systems Inc. v. Ontario (Information and Privacy Commissioner) (Div Court, 2022) the Divisional Court considered a FIPPA s.17 'business harm' exception, on the issue of whether third party information was 'supplied in confidence':
[3] Jane Doe and K-Bro both appealed the Hospital’s decision to the Information and Privacy Commissioner (“IPC”). K-Bro argued that the records or portions of the records contain third party information that is exempt from disclosure. Section 17(1) of FIPPA limits the general right to access records in the possession of a public institution, including hospitals, if the record contains certain types of sensitive information:
17 (1) 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.
....

[5] The IPC Adjudicator ordered the Hospital to disclose a copy of a linen services contract and a memorandum summarizing the terms of the contract. The Adjudicator agreed with K-Bro that the contract and memorandum contain financial information about the cost of providing linen services to the Hospital. However, the Adjudicator found that the financial information was not supplied to the Hospital by K-Bro in confidence. The Adjudicator, therefore, found that the contract and the memorandum were not exempt from disclosure under s. 17(1)(a) of FIPPA.

....

[10] K-Bro acknowledged that the Adjudicator correctly stated the three-part test for exempting records from disclosure under s. 17(1)(a) of FIPPA. She correctly held that for the exemption in s. 17(1)(a) to apply, K-Bro had the onus of proving the following:
a. the record contains information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and

b. the information was supplied to the institution in confidence, either implicitly or explicitly; and

c. the disclosure of the information could reasonably be expected to significantly prejudice K-Bro’s competitive position.
[11] K-Bro argues that the Adjudicator’s conclusion that the information was not supplied to the Hospital in confidence is inconsistent with the existing jurisprudence and is internally inconsistent. We disagree.

[12] There are several decisions from the IPC and this Court dealing with what it means for information to be “supplied in confidence” during contract negotiations. This Court has found that the content of a negotiated contract will not ordinarily be considered information “supplied” in confidence by a party to the contract: Boeing Co. v. Ontario (Ministry of Economic Development and Trade), 2005 CanLII 24249 (ON SCDC), Miller Transit Limited v. Information and Privacy Commissioner of Ontario, 2013 ONSC 7139. This is true even if there was little negotiation over the contract or where the contract substantially reflects a proposal made by a party to the final contract. For example, in Boeing Co. v. Ontario (Ministry of Economic Development and Trade) at para. 18, the Court wrote:
The Commissioner has consistently found that information in a contract is typically the product of a negotiation process between the parties and that the content of a negotiated contract involving a governmental institution and another party will not normally qualify as having been “supplied”. Even where the contract is preceded by limited negotiation, or where the final agreement substantially reflects information that originated from a single party, the Commissioner has concluded that the information was not supplied (for example, IPC Order MO-1706, pp. 9-10; IPC Order P-1545 at pp. 9-10).
[13] In Miller Transit, the Court held (at para. 27) that absent evidence to the contrary, the content of a negotiated contract involving a government institution and a third party is presumed to have been generated in the give and take of negotiations, not "supplied" by the third party. The onus was on K-Bro to rebut the presumption that the information in its service contract is not covered by the exemption in s. 17(1): Miller Transit, at para. 31.
More at paras 14-25.

. YUDC v. Information and Privacy Commissioner

In YUDC v. Information and Privacy Commissioner (Div Ct, 2022) the Divisional Court judicially reviewed whether records were under the control of the institution:
The Relevant law

[38] In Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306, the Supreme Court set out a two-part test for assessing whether records are under the control of an institution subject to access to information legislation (at paras. 49-60):
(i) Do the contents of the document relate to a department matter; and

(ii) Could the government institution reasonably expect to obtain a copy of the document on request?
[39] The parties agree that the test from National Defence is the applicable test to assess whether records are “under the control” of an institution subject to access to information legislation. The test from National Defence is the test that the Adjudicator applied in this case.

[40] In National Defence, the Supreme Court recognized the importance of interpreting the “control” provisions of access to information legislation in a manner consistent with the purpose of the legislation. As a result, the Court held that “the notion of control must be given a broad and liberal meaning in order to create a meaningful right of access to government information” (at para. 54). In light of this approach, the Court provided guidance on how each of the two steps of the analysis should be approached (at paras. 55 and 56):
Step one of the test acts as a useful screening device. It asks whether the record relates to a departmental matter. If it does not, that indeed ends the inquiry. The Commissioner agrees that the Access to Information Act is not intended to capture non-departmental matters in the possession of Ministers of the Crown. If the record requested relates to a departmental matter, the inquiry into control continues.

Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The Commissioner is correct in saying that any expectation to obtain a copy of the record cannot be based on “past practices and prevalent expectations” that bear no relationship on the nature and contents of the record, on the actual legal relationship between the government institution and the record holder, or on practices intended to avoid the application of the Access to Information Act (A.F., at para. 169). The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption. In applying the test, the word “could” is to be understood accordingly. [emphasis in original]
[41] The factual context at issue in National Defence was different that the context in this case. National Defence involved the assessment of whether records in a ministerial office (which was not subject to federal access to information legislation) were under the control of a government department (which was subject to the legislation). Although the context was different, the problem is the same as in this case – when are records possessed by an entity not subject to access to information legislation in the custody or control of an institution subject to the legislation, such that the right of access applies?[2] The test in National Defence is contextual and requires a decision-maker to consider all of the circumstances in assessing whether records are under the control of an institution subject to the act. Thus, it is flexible enough to apply to a variety of factual contexts.
. YUDC v. Information and Privacy Commissioner

In YUDC v. Information and Privacy Commissioner (Div Ct, 2022) the Divisional Court, on judicial review under a reasonableness question of law standard, upheld the FIPPA IPC's decision that reversed the onus on a reconsideration onto the party resisting disclosure:
[82] This brings me to York and YUDC’s submission in relation s. 18.01(b) and the onus on a reconsideration application in relation to the issue of whether the four records at issue were under control of York within the meaning of s. 10(1) of FIPPA. Section 18.01(b) addresses “some other jurisdictional defect in the decision”.

[83] The fundamental distinct argument made by York and YUDC in relation to s. 18.01(b) is that the s. 10(1) arguments raised by York and YUDC relate to the IPC’s jurisdiction over the records, and as such, they submit, the Adjudicator erred in the Reconsideration Order in placing the onus on York and YUDC to show that the four records were not under control of York.

[84] I will not quote all of the Adjudicator’s reasons in relation to the onus as they are somewhat lengthy, and intertwined with her analysis of s. 10(1) of FIPPA, which I have addressed above. The key components of her analysis of the onus were as follows:
• York did not decide the initial access request on the basis that the records were not in its custody or control, but rather found that the ss. 17(1) and 18(1) exemptions applied to exempt the records from disclosure (Reconsideration Order at para. 13).

• Neither York nor YUDC raised the issue of whether York had custody or control of the records at issue in the original IPC appeal. She found that York and YUDC “had ample opportunity” to raise the custody or control issue in the appeal, and did not do so. She further found that the fact that York in its submissions took the position that the ss. 17(1) and 18(1) exemptions applied to the records at issue was implicitly a position that it had custody or control of the records (since the structure of FIPPA is such that there is no need to claim exemptions for records not in the custody of or under the control of an institution subject to FIPPA because FIPPA does not apply if records are not under the custody or control of an institution) (Reconsideration Order at paras. 14, fn 2, 26).

• She found that the reconsideration process is not intended to be a forum for parties to reargue their cases, relying on previous IPC orders on this issue as persuasive. One of the factors discussed in the previous orders she referred to is the importance of finality of proceedings before administrative tribunals (Reconsideration Order at paras. 27-29).

• She accepted that an error with respect to the issue of the institution’s custody or control of the records at issue could amount to a jurisdictional issue under s. 18.01(b). However, she held that since the custody or control issue was raised for the first time on the reconsideration request, and not during the appeal, York and YUDC bore the onus to show that the records were not in the custody of or under the control of York. She held that allowing the parties to raise the issue for the first time on reconsideration, and treat it as if it had been raised earlier, would undermine the principle of finality of the IPC’s orders (Reconsideration Order at paras. 30-32).

• She then explained why she found that York and YUDC had not established that the records were not in the custody or control of York (Reconsideration Order at paras. 32-71).
[85] I find that the Adjudicator did not err in allocating the onus to York and YUDC to show that the records were not in the custody of or under the control of York, in light of the context of the issue being raised in a request for reconsideration. The Adjudicator’s decision that, in the context of this issue being raised for the first time in the reconsideration request, the onus lay with York and YUDC to show that the records at issue were not in the custody or control of York is reasonable.

[86] The parties disagree on where the onus in relation to custody or control of the records under s. 10(1) of FIPPA would lie if the issue had been raised in the initial IPC appeal. The IPC position is that previous IPC orders place the onus on an institution to show that records subject to an access request are not in the custody of or under the control of the institution. The IPC submits that the reason for allocating the burden to the institution is that the institution has the information relevant to assessing whether the records are in the custody or control of the institution (i.e., a requester has no way to make this showing, since they have not seen the records and likely know nothing about how they are kept). Counsel for YUDC took the position that since custody or control of records by an institution is a threshold to the right of access existing, it must be established on a balance of probabilities that the records are in the custody or control of an institution subject to FIPPA. However, this issue was not fully argued by the parties, as it arose from questions from a member of the panel during oral argument. It is not necessary in this case for this court to decide the issue of where the onus would lie on the issue of custody or control if it had been raised at first instance in the IPC inquiry.

[87] The Adjudicator found that s. 18 of the IPC Code of Procedure places the onus on the party seeking reconsideration to show that there are grounds within one or more of s. 18.01(a), (b), or (c) to grant the reconsideration.

[88] I find that this is a reasonable interpretation of where s. 18 places the onus, based on both the text of s. 18.01, and the nature of a request for reconsideration.

[89] The opening words of s. 18.01 state: “The IPC may reconsider an order or other decision where it is established that there is [one of the grounds in (a), (b), or (c)]”. The underlined passage is reasonably interpreted to place the onus on the party seeking reconsideration to show that one of the grounds in s. 18.01(a), (b) or (c). Further, the context of a reconsideration also supports that the party seeking the reconsideration bears the onus to show that there are grounds for relief. Our system of justice, both in the courts and administrative tribunals, values efficiency of litigation, and finality. Where a party is seeking reconsideration of a decision, as here, which was made with the benefit of notice, an inquiry, and an opportunity to make submissions, the interests of efficient conduct of litigation and finality support an interpretation of this section as allocating the onus on a reconsideration to the party seeking reconsideration. This is an issue of interpretation by the tribunal of its own rules of procedure, as they apply to an issue under its home statute. The Adjudicator’s decision is owed significant deference in this context.

[90] Thus, I find that the Adjudicator’s decision that the onus was on York and YUDC to show that s. 18.01(b) (and indeed any of the grounds in s. 18.01) applied was reasonable. And as I have addressed above, her further conclusion that York and YUDC had not met their onus to show that the records were not in control of York was reasonable. The process before the IPC was fair, and the applicants have not shown any error by the Adjudicator.


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