ORDER M-732
Appeal M_9500539
City of Oshawa
NATURE OF THE APPEAL:
The City of Oshawa (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to records relating to the passage of by-laws 113/91, 114/91 and 60/94. The requester sought access to the above records as they relate to the Oshawa Harbour area generally and in particular, the property at a designated address and lands in the vicinity of that address. Partial access was granted to the records. The City denied access to the remaining 24 records, in whole or in part. The requester appealed the denial of access.
During mediation, the City identified an additional 17 records and granted access in full to all but two of them.
The records all relate to the passage of the by-laws and the City’s proposed development of the Second March Interpretive Centre Lands. The records that remain at issue in this appeal consist of a total of 26 records, including the 24 listed and described in the index provided by the City to the appellant and the two records described in the City’s supplementary decision letter. For ease of reference, I will refer to the latter two records as Supplementary Records 1 and 2.
The City denied access to the records, in whole or in part, on the basis of the following exemptions contained in the Act:
draft by-law - section 6(1)(a)
closed meeting - section 6(1)(b)
advice or recommendations - section 7(1)
third party information - section 10(1)(a)
economic & other interests - section 11(e)
proposed plans/projects/policies - section 11(g)
solicitor-client privilege - section 12.
A Notice of Inquiry was provided by this office to the appellant and the City. Notice was also given to the Oshawa Harbour Commission (the Commission) as the affected party in this appeal. Representations were provided by all parties. In its representations, the City indicated that it no longer relies on section 10(1)(a) for Records 4, 5 and 7 and that section 6(1)(b) was applied to Record 8 in error.
BACKGROUND:
In this appeal, I believe that some background information provided by the City would help to put the request and the nature of the records sought in perspective. As I have indicated previously, the records relate to the passage of the by-laws and the City’s proposed land development.
The City states that its passage of the zoning by-laws was appealed to the Ontario Municipal Board by various parties including the appellant and the Commission and this litigation is ongoing at the present time. The City has recently also been the site of considerable expansion of the Greater Toronto Waterfront Trail. The City advises that as part of the expansion project, it is involved in a land exchange which has been agreed to “in principle” but has yet to be formalized. In addition, the City has been and continues to be involved in negotiating acquisition of certain lands from the Commission for the purpose of establishing the Second Marsh Education and Interpretive Centre. The records at issue, therefore, relate to the City’s involvement in the above.
DISCUSSION:
The City has applied various exemptions to the records. I will first examine the application of sections 6(1)(a) and (b) of the Act.
DRAFT BY-LAW
The City has withheld Records 13, 27, 28 and 29 on the basis that section 6(1)(a) applies. Record 13 is a memorandum from the Deputy City Solicitor to a planner and contains the author’s comments on a proposed holding by-law together with some text of a draft by-law. Records 27 and 28 are an “Analysis Report” and a “Background Report” respectively, prepared by external consultants. Record 29 is a copy of a draft by-law.
Section 6(1)(a) states as follows:
A head may refuse to disclose a record,
That contains a draft