ORDER P-1050

Appeal P‑9500377

Ministry of Transportation

NATURE OF THE APPEAL:

This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act). The Ministry of Transportation (the Ministry) received a request for access to copies of all correspondence and product or testing information related to highway testing blocks which was sent to the Ministry by two named companies, Company A and Company B. The documents relate to an application for Ministry approval of offset blocks (the product) on provincial guardrail systems.

Pursuant to section 28 of the Act, the Ministry notified Company A of the request. (Company A purchased the assets and technology of Company B in April, 1992.) Company A objected to the disclosure of any information with the exception of its general sales literature, which it does not consider to be confidential. The Ministry then issued a decision in which it granted partial access to the requested documentation and denied access to eight records on the basis of the third party information exemption (section 17(1) of the Act).

The requester appealed the denial of access.

During mediation of the appeal, the appellant limited the scope of his request to the documents numbered as 7-10 by the Ministry. These records may be described as follows:

7: Letter and attachment from Company A to the Ministry dated February 3, 1993 (5 pages)

8: Letter and attachment from Company A to the Ministry dated December 10, 1992 (5 pages)

9: Specifications (2 pages)

10: Letter from the United States Department of Transportation, Federal Highway Administration to Company A, dated September 1, 1992 (2 pages)

The appellant also maintained that there was a public interest in the disclosure of the records, thus raising the application of section 23 of the Act.

A Notice of Inquiry was sent to the Ministry, the appellant and Company A. Representations were received from all three parties.

PRELIMINARY ISSUE

In his submissions, the appellant poses four questions related to the Canadian government’s awareness of certain information about Company A’s product. These questions, or “issues”, as they are referred to by the appellant, were raised for the first time in his submissions. They do not appear to be requests under the Act and, as noted, refer to the knowledge of the Canadian, as opposed to the Ontario government.

Should the appellant wish to pursue these matters, he should submit a request to the appropriate federal government institution under the federal Access to Information Act. This office has no jurisdiction to deal with such questions.

THIRD PARTY INFORMATION

For a record to qualify for exemption under section 17(1)(a), (b) or (c) the Ministry and/or Company A 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 (a), (b) or (c) of subsection 17(1) will occur.

[Order 36]

Part One

The Ministry submits that the records contain scientific and technical information about Company A’s product. Company A supports this characterization of the information, as well as claiming that some of the information consists of trade secrets and commercial information. However, apart from stating this conclusion, Company A provides no evidence in support of this contention.

In Order P-454, former Assistant Commissioner Irwin Glasberg undertook an extensive analysis of the term “scientific” as it appears in section 17(1) of the Act. Based on the definitions of the terms “scientific” and “science” as found in the Concise Oxford Dictionary (8th ed.), he concluded that:

Scientific information is information belonging to an organized field of knowledge in either the natural, biological or social sciences or mathematics. In addition, for information to be characterized as scientific, it must relate to the observation and testing of specific hypothesis or conclusions and be undertaken by an expert in the field. Finally, scientific information must be given a meaning separate from technical information which also appears in section 17(1)(a) of the Act.

Again, based on the definition of “technical” in the Concise Oxford Dictionary (8th ed.), he found that:

Technical information is information belonging to an organized field of knowledge which would fall under the general categories of applied sciences or mechanical arts. Examples of these fields would include architecture, engineering or electronics. While, admittedly, 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. Finally, technical information must be given a meaning separate from scientific information which also appears in section 17(1)(a) of the Act.

The records at issue in this appeal describe the composition and material sources of Company A’s product, as well as the results of various tests and analyses of the product and product specifications. Some of these materials test a specific hypothesis, set out conclusions based on observations, or present findings according to a specific methodology. In addition, some of the information contained in the records describes the construction of materials made from the product and how it should be used.

Applying the definitions set out above to the information contained in the records, I find that they contain scientific and/or technical information. Thus part one of the section 17(1) test has been satisfied.

Part Two

In order to satisfy part two of the test, the Ministry and/or Company A must show that the information was supplied to the Ministry, either implicitly or explicitly in confidence.

It is clear from a review of the records that they all consist of correspondence sent to the Ministry from Company A which was supplying the Ministry with information about its product.

There is nothing on the face of the documents to indicate that they were provided to the Ministry explicitly in confidence. However, Company A submits that they were supplied to the Ministry in confidence and the Ministry states that:

... [it] respects [Company A’s] claim for confidence as it may have been implied in the course of our dealings with them.

In Order M-169, Inquiry Officer Holly Big Canoe made the following comments with respect to the application