2014 ONSC 6484

DIVISIONAL COURT FILE NO.: 312/13 DATE: 20141113

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Gordon R.S.J., Swinton and C. Horkins JJ.

BETWEEN:

Intergraph Corporation

Applicant

– and –

Information and Privacy Commissioner of Ontario (Diane Smith, Adjudicator)

Respondent

– and –

City of Toronto

Respondent

Gregory Somers, for the Applicant

Lawren Murray, for the Respondent Information and Privacy Commissioner of Ontario

Ansuya Pachai, for Respondent City of Toronto

HEARD at Toronto: October 8, 2014

C. hORKINS J.

Overview

[1] The applicant, Intergraph Corporation (“Intergraph”) applies for judicial review of Order MO-2895 dated June 10, 2013 (“the Decision”) of Adjudicator Diane Smith at the Office of the Information and Privacy Commissioner of Ontario (“the adjudicator”).

[2] The adjudicator directed the City of Toronto (the “City”) to release certain information relating to the City of Toronto’s fire services Computer-Aided Dispatch (“CAD”) software system under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990. c. M.56 (the “MFIPPA”).

[3] Intergraph seeks an order quashing the Decision on the basis that it was unreasonable.

[4] For the reasons that follow, I find that the Decision was unreasonable. The application for judicial review is allowed. The Decision is quashed and remitted back to the Commissioner for a new hearing.

Background facts

[5] Intergraph has a contract with the City to provide the software and maintenance services for the CAD system.

[6] The City received a request under the MFIPPA to release maintenance records for the City’s fire services CAD system. Various records were released to the requester and are not part of this judicial review.

[7] A maintenance log for the years 2009, 2010 and 2011 is the subject of this judicial review. The maintenance log is divided into 13 columns, each providing different types of information about a reported maintenance incident.

[8] The City determined that release of this maintenance log might affect the interests of Intergraph. As a result, the City gave Intergraph an opportunity to make submissions concerning the disclosure of the maintenance log pursuant to s. 21 of the MFIPPA.

[9] The City decided to give the requester access to part of the maintenance log. Intergraph was notified of this decision and appealed to the Office of the Information and Privacy Commissioner of Ontario (“the IPC”).

[10] Intergraph opposed the disclosure of the entire maintenance log and argued that the document qualified for an exemption under s. 10(1)(a) of the MFIPPA that states as follows:

10. (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, 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

[11] Section 10(1) creates a three-part test that must be met for a document to qualify for the exemption. Intergraph argued that the document met all three criteria. Specifically, the maintenance log (1) contained technical information, (2) that was supplied to the City in confidence under the End User License Agreement and (3) there was a reasonable expectation of harm if the maintenance log was released.

[12] The adjudicator examined the information in the 13 columns and decided that only some of the information in column 13 was exempt from disclosure under s. 10(1) of the MFIPPA. The rest of the information in column 13 and all of the information in the other columns did not meet the test and had to be disclosed.

[13] Intergraph applied for judicial review of the Decision. This judicial review application concerns the information in columns 10, 12 and 13 of the maintenance log. Intergraph does not take issue with the disclosure of the information in columns 1 to 9 and 11.

The standard of review

[14] It is agreed that the standard of review is reasonableness. This is the standard of review for an IPC adjudicator's interpretation and application of the exemption set out in s. 10(1): see Ontario (Workers' Compensation Board) v. Ontario (Assistant Information & Privacy Commissioner) (1998), 1998 7154 (ON CA), 41 O.R. (3d) 464 at paras. 16-18 (C.A.); Canadian Medical Protective Assn. v. John Doe, 2008 45005 (ON SCDC), [2008] O.J. No. 3475 at para. 39 (Div. Ct.)

[15] The reasonableness standard was articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47:

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

analysis

[16] Intergraph advances two reasons why the Decision was unreasonable and should be quashed:

(1) The adjudicator failed to apply the civil burden of proof. Instead a higher burden was imposed.

(2) The adjudicator correctly identified the three part test under s. 10(1), but failed to apply the test properly and in a consistent manner.

1. The Balance of Proof Issue

[17] A party that seeks an exemption under s. 10(1) must satisfy the test on a balance of probabilities. Intergraph argues that the adjudicator imposed a more rigorous standard of proof. It says that this is apparent for two reasons. First, the adjudicator did not articulate the civil burden of proof in her reasons. As a result, it cannot be said that she applied this standard. Second, Intergraph states that the reasons reveal the application of a more rigorous standard. Specifically, the adjudicator stated that “detailed and convincing” evidence was required “to establish a reasonable expectation of harm”.

[18] Intergraph is correct that the adjudicator did not articulate the civil burden of proof (balance of probabilities) in her reasons. That said, I do not agree that the adjudicator imposed a more rigorous standard on Intergraph. The words “detailed and convincing” are not used to describe a higher standard of proof. They describe the quality and cogency of the evidence required to establish a reasonable expectation of harm (see Ontario (Workers' Compensation Board) v. Ontario (Assistant Information & Privacy Commissioner), supra, at para. 26). The reasons viewed as a whole show that correct burden of proof was applied.

2. Inconsistent Application of the Test

[19] The focus of this issue is on the information in columns 10, 12 and 13 of the maintenance log. These columns are titled “Priority”, “Summary” and “Description” respectively.

[20] Intergraph agrees that the adjudicator correctly stated the three-part test. The adjudicator found that the information in each column was “technical”. As a result, all of the information in columns 10, 12 and 13 met the first part of the test.

[21] When the adjudicator turned to consider parts two and three of the test, Intergraph states that she applied the test in a manner that resulted in an unreasonable decision. The following review of the Decision explains why I accept Intergraph’s position.

Part Two of the Test

[22] Part two of the test has two components. The party resisting disclosure must prove (1) that the information was supplied to the institution and (2) that it was supplied in confidence.

[23] The adjudicator correctly stated that information “may qualify as ‘supplied’ if it was directly provided to an institution by a third party or where its disclosure would reveal or permit the drawing of accurate inferences with respect to information supplied by a third party.” The party resisting disclosure must establish that it had a reasonable expectation of confidentiality, implicit or explicit, at the time the information was provided. The expectation must have an objective basis.

[24] The City supported Intergraph’s position. It agreed that Intergraph supplied the technical information in the maintenance log to the City and this information belonged to Intergraph. The City told the adjudicator that the information would not have been known to the City if it had not been supplied by Intergraph.

[25] Further, the City explained that it was bound by the confidentiality and non-disclosure provisions in both the Master Service Agreement and the Maintenance Service Agreement signed by Intergraph and the City. Therefore, the City agreed that the information was supplied with the expectation of confidence.

[26] Dealing first with whether Intergraph supplied the information, the adjudicator found that all of the information in column 10 and much of the information in columns 12 and 13 was not supplied by Intergraph to the City. The adjudicator addressed this at paras. 33-34 of the Decision as follows:

[33] I find that column 10, which lists the priority of the maintenance request, does not contain information supplied by the affected party to the city. Instead, it contains the city's interpretation of the priority of the maintenance request. I find that the information in column 10 was not supplied by the affected party, nor would its disclosure reveal or permit the drawing of accurate inferences with respect to information supplied by the affected party. Therefore, part 2 of the test has not been met for column 10 and I will order the information in this column disclosed.

[34] I find that much of the information in columns 12 and 13 was also not supplied by the affected party to the city. This information includes information as to who reported the problem with the CAD system, their contact information, how a city staffer interpreted the problem, and information about other institutions.

[Emphasis added.]

[27] The adjudicator found that the “remaining information” in columns 12 and 13 met part two of the test because it was “information supplied in confidence … about the operation of [Intergraph’s] software.”

[28] Intergraph agrees that the name and contact information of a City employee is not information that it supplied. A review of the unredacted maintenance log reveals that very little of the information in columns 10, 12 and 13 falls into this category.

[29] Dealing first with column 10, the entry provides a very brief description of the priority of the maintenance call. The adjudicator found that this was not information that Intergraph supplied to the City. The adjudicator did not explain why she rejected the City’s evidence that the information belonged to Intergraph and would not have been known to the City if it had not been supplied by Intergraph. It may be that an explanation is available, but the adjudicator did not provide it in her Decision.

[30] As stated in Dunsmuir, the standard of “reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.” This is lacking in the Decision because it is not possible to understand how the adjudicator concluded that the information was not supplied by Intergraph to the City, given the City’s evidence that it was.

[31] The adjudicator considered the information in column 10 in isolation, without reference to the rest of the maintenance log. Intergraph says that this allowed the adjudicator to erroneously conclude that “its disclosure [would not] reveal or permit the drawing of accurate inferences with respect to information supplied by the affected party.”

[32] Each maintenance incident that is recorded on the maintenance log has information about the incident recorded in multiple columns. Reading across the spreadsheet provides a full picture of each individual incident. As a result, it was unreasonable in my view for the adjudicator to assess the information in column 10 in isolation, without reference to columns 12 and 13.

[33] Turning to columns 12 and 13, the adjudicator briefly explained that these columns contain information that Intergraph did not supply to the City because the columns include “information as to who reported the problem with the CAD system, their contact information, how a city staffer interpreted the problem and information about other institutions.”

[34] However, column 12 contains no reference to the name, position and contact details of the person who reported the problem. In column 13 such information is very minimal. Intergraph agrees that it did not supply this type of contact information.

[35] Once again, it is not possible to understand how the adjudicator found that Intergraph did not supply the remaining information in columns 12 and 13 to the City. The City agreed that Intergraph did supply this information to it. However, “justification, transparency and intelligibility within the decision-making process” are lacking.

Part Three of the Test

[36] The IPC adjudicator applied part three of the test to the remaining information in columns 12 and 13. The adjudicator accepted that for “a very limited amount of information” in column 13, there was a reasonable expectation of harm if the information was released. None of the information in column 12 met this third part of the test.

[37] The adjudicator described the harm as follows:

[48] I agree with [Intergraph] that public disclosure of this specific confidential technical information could harm [Intergraph’s] ability to demonstrate its product to future customers. If this highly technical information is interpreted incorrectly, potential future customers may choose not to licence its CAD system software based on problems stated in maintenance requests without giving [Intergraph] an opportunity to provide any rebuttal as to whether they have been corrected. Such a situation would place [Intergraph] at a competitive disadvantage.

[49] I agree with [Intergraph] that disclosure of this highly technical information could allow a competitor of CAD system software to utilize the information in the maintenance requests in creating similar software. [Intergraph] would be deprived of the value of the information if a competitor could access this information at no cost to itself and exploit for its own commercial use.

[Emphasis added.]

[38] The adjudicator described the “limited amount of information” in column 13 that could reasonably be expected to cause harm if released. It consists of “specific confidential descriptions of certain CAD system software information” and “contains specific details about how [Intergraph’s] software handles the functional requirements of the CAD system.” This information is “not otherwise available publicly”. It provides a “detailed blueprint of [Intergraph’s] software development process” and is “unique to [Intergraph’s] CAD system software.”

[39] The adjudicator rejected Intergraph’s position that all of the information in columns 12 and 13 could reasonably be expected to cause harm if released. The adjudicator found that the remaining information would “not give [Intergraph’s] competitors access to the internal design, format and logic of the CAD system.”

[40] The adjudicator applied part three of the test inconsistently. There are two reasons why I reach this conclusion. First, certain words and phrases that the adjudicator excluded from production appear elsewhere in the log and are not excluded. The words or phrases are either identical or very similar. (It is not possible to set out examples here without revealing content that may be exempt from disclosure, but helpful examples are found in Intergraph’s factum.) The adjudicator does not explain this apparent inconsistency.

[41] Second, the adjudicator agreed with Intergraph that disclosure of highly technical information could allow a competing provider of CAD system software to utilize the information. As a result, the adjudicator excluded the computer coding that was recorded in column 13.

[42] However, the adjudicator did not limit the excluded entries to computer coding. Various entries in column 13 that can be described as “highly technical” were excluded. However, this was not done in a consistent manner and the adjudicator appears to have considered the two columns in isolation.

[43] There is “highly technical” information in column 13 that the adjudicator did not exclude from production. It is not possible to appreciate why some information was characterized as highly technical and qualified for exemption and the rest did not.

conclusion

[44] In summary, the adjudicator did not apply the test under s. 10(1)(a) of the MFIPPA in a consistent manner and the Decision lacks the “justification, transparency and intelligibility” that is required “within the decision-making process”. When the Decision is considered as a whole, it is not possible to say that it falls “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

[45] I find that the Decision was unreasonable. The application for judicial review is allowed. The Decision is quashed and remitted back to the Commissioner for a new hearing. The new hearing shall be limited to the information in columns 10, 12 and 13 of the maintenance log.

[46] I appreciate that the adjudicator was not provided with detailed submissions as to why each column of information should be excluded from release. It would be prudent if Intergraph provided specific information for the new hearing to explain the interplay between the three columns of information.

[47] The parties have agreed that there will be no order for costs.

___________________________ C. Horkins J.

Gordon R.S.J.

Swinton J.

Released: November 13, 2014

2014 ONSC 6484

DIVISIONAL COURT FILE NO.: 312/13 DATE: 20141113

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Gordon R.S.J., Swinton and Horkins JJ.

BETWEEN:

Intergraph Corporation

Applicant

– and –

Information and Privacy Commissioner of Ontario (Diane Smith, Adjudicator)

Respondent

– and –

City of Toronto

Respondent

REASONS FOR JUDGMENT

C. Horkins J.

Released: November 13, 2014