OFFICE OF THE INFORMATION & PRIVACY COMMISSIONER for Prince Edward Island. Order No. FI Re: Department of Communities, Land and Environment

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1 OFFICE OF THE INFORMATION & PRIVACY COMMISSIONER for Prince Edward Island Order No. FI Re: Department of Communities, Land and Environment July 13, 2017 Prince Edward Island Information and Privacy Commissioner Karen A. Rose Summary: An applicant requested access to information related to wetlands issues, held by the Department of Communities, Land and Environment. The Department provided partial access to the responsive records. The applicant sought a review of the Department s decision, and claimed that the Department did not fulfill its duty to assist the applicant. The Commissioner found that the Department fulfilled its duty to assist the applicant in most respects, but did not conduct a timely search of an archive, and did not fulfill its duty to communicate openly with the applicant with regard to the archive. The Department withheld information from 8 records on the basis of section 14 of the FOIPP Act, as disclosure would harm the business interests of a third party. The Commissioner found that section 14 did not apply to the withheld information, and ordered the Department to provide access to it. Statutes Cited: Freedom of Information and Protection of Privacy Act, RSPEI 1988, c F-15.01, 7, 8(1), 14, 65, 66(3), 68(1.1) Page 1 of 27

2 Decisions Cited: PEI Order No FI , Re: Department of Agriculture, 2011 CanLII (PE IPC). PEI Order FI Re: Office of the Premier, 2015 CanLII (PE IPC) PEI Order No. FI , Prince Edward Island (Agriculture, Fisheries and Aquaculture) (Re), 2006 CanLII (PE IPC) PEI Order FI , Re: Economic Development and Tourism, 2016 CanLII (PE IPC) Alberta Order F , 2011 CanLII (AB OIPC) PEI Order FI , Prince Edward Island (Economic Development and Tourism) (Re), 2015 CanLII (PE IPC) PEI FI , Re Prince Edward Island (Family and Human Services) (Re), 2015 CanLII (PE IPC) Alberta Order F , 2005 CanLII (AB OIPC) Alberta Order F , 2016 CanLII (AB OIPC) Ontario Order PO-3730, 2017 CanLII (ON IPC) Nova Scotia Report FI CanLII (NS FOIPOP) CBC v. Privacy Commissioner& IIDI, 2012 PESC 32 (CanLII) Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) Other Authorities Cited: Prince Edward Island, Legislative Assembly, Standing Committee on Agriculture, Environment, Energy and Forestry (Hansard) (6 November 2012) transcript.pdf Prince Edward Island FOIPP Guidelines and Practices Manual (May 2006) Page 2 of 27

3 Department of Environment, Energy and Forestry, A Wetland Conservation Policy for Prince Edward Island (Prince Edward Island, 2007) ns/pei_wetland_policy_2007_0.pdf I. BACKGROUND [1] An applicant (the Applicant) made a multiple question request for access to information, pursuant to section 7 of the Freedom of Information and Protection of Privacy Act, RSPEI 1988, c F (the FOIPP Act). The requests related to the Environmental Advisory Council, the work of a company (the Third Party) that worked on a wetland awareness campaign, and the Watercourse and Wetland Regulations of the Environmental Protection Act. [2] The Public Body responded to the Applicant s questions, and in doing so, some of the Applicant s initial requests were resolved. Four requests remain at issue, and are described more fully in the following paragraphs [3] The Applicant s second request ( Request 2 ) is for the following: Any reports or correspondence made by the department or received by the department as to how much land on PEI fits the Environment Protection Act s definition of a wetland. This would include any correspondence that refers to [the Applicant] s estimates, especially if they refer to my estimates as a crazy story or a lot of misinformation out there. They don t have to mention me by name. Page 3 of 27

4 The Public Body did not locate any responsive records to Request 2. The Applicant submits the Public Body did not conduct an adequate search. [4] The Applicant s third request ( Request 3 ) is for the following: I would like all information received from the PEI department of forestry regarding anything concerning forestry on PEI. This would include any presentations to the EAC. Absolutely anything that depicts the industry, as over cutting, rutting, depleting the resource and pretty much anything else that leaves the industry looking in a bad light. Request 3 was expanded to include: any information the Department of Environment has that was produced internally that depicts the forestry industry as over cutting, rutting, depleting the resource and or putting the industry in a bad light. [5] The Applicant originally stated he received very little in response to Request 3, and what he did receive was severed/blacked out. The Public Body confirmed it provided one record to the Applicant, which was not severed. The former Commissioner requested clarification from the Applicant, but he did not provide any further submissions regarding the Public Body s response. The Applicant later stated that he did not receive a copy of two presentations given to the Environmental Advisory Council ( EAC ) by employees of the Department of Agriculture and Forestry. Page 4 of 27

5 [6] The Applicant s sixth request ( Request 6 ) is for the following: In 2011 [the Third Party] received a total of $ from the wetland mitigation fund. This was for developing a wetland awareness campaign. I would like the contents of this in whatever form it takes at present and if completed where it was presented. I would like the background information behind this report. This would include direction provided by your department and any facts about wetlands passed on to this company from government. The Public Body withheld information in the records responsive to Request 6, relying on section 14 of the FOIPP Act, that disclosure would harm third party business interests. [7] The Applicant s seventh request ( Request 7 ) is for the following : If any complaints were received by your department regarding WWP Regulations, I would like the number of complaints and the reason for complaint. I do not need the complainants name but I would like to know the response from your department and person who responded. The Public Body located and disclosed 8 records with the complainants identifying information withheld, on the basis of section 15 of the FOIPP Act. The Applicant has no issue with the Public Body withholding personal information of third parties. The Applicant states he is aware of two written complaints that were not located: his own written complaint, and a complaint written by his father. He submits that if the Public Body s search did not locate these complaints, then the Public Body did not conduct an adequate search, and there may be other responsive records. Page 5 of 27

6 [8] The date range for the requested records, as set out in the request for access to information form, is from January 2005 to present (April 23, 2012). II. RECORDS AT ISSUE [9] On the issue of whether the Public Body conducted an adequate search, the Public Body found no records responsive to the Applicant s Request 2, and no further records responsive to the Applicant s Request 3 and Request 7. [10] With Regard to Request 6, the Public Body severed information from 8 pages of responsive records on the basis of section 14(1) of the FOIPP Act: pages 1, 3, 5, 19, 24, 29, 31, and 34. Throughout this Order, I will refer to individual records by their page number (ie. Page 24). I will refer to all 8 records as the records at issue. III. ISSUES [11] The Public Body severed personal information from responsive records on the basis of section 15 of the FOIPP Act, which is not an issue in this review. The Public Body also initially withheld minutes of meetings of the EAC, on the basis of sections 21 and 22 of the FOIPP Act, but during the course of this review, the Public Body decided to provide access to the minutes, to the Applicant. Sections 21 and 22 of the FOIPP Act are not at issue in this review. [12] There are two issues in this review: Issue 1: Did the head of the Public Body fulfill her duty to assist the Applicant, pursuant to subsection 8(1) of the FOIPP Act? In particular, was an adequate Page 6 of 27

7 search for records conducted in response to Request 2, Request 3, and Request 7? Issue 2: Did the head of the Public Body properly apply subsection 14(1) of the FOIPP Act in deciding to refuse to disclose to the Applicant information related to Request 6, regarding the wetland awareness campaign? [13] During the course of this review, the Applicant has alleged bad faith, and that the Public Body did not act in accordance with the Environmental Protection Act or the Public Body s policies regarding transparency. The Applicant acknowledges that these allegations are outside the scope of the jurisdiction of the Information and Privacy Commissioner. IV. ANALYSIS OF THE ISSUES Issue 1: Did the head of the Public Body fulfill her duty to assist the Applicant, pursuant to subsection 8(1) of the FOIPP Act? In particular, was an adequate search for records conducted in response to Request 2, Request 3 and request 7? [14] I considered section 8(1) of the FOIPP Act, and the adequacy of a public body s search for records, in Order FI , Re: Department of Agriculture, 2011 CanLII (PE IPC). I set out the burden of proof (at paragraph 17), the duty to assist (at paragraph 18), and the considerations of an adequate search (at paragraph 19). I rely on this decision, and for ease of reference, reproduce it here: [17] A. Subsection 8(1), Burden of Proof: It has been established in Alberta Orders (paragraph 10), F (paragraph 10) and, more recently, in Order F (paragraph 12), and confirmed in Order of this office, Page 7 of 27

8 that a public body has the burden of proving that it has fulfilled its duty to assist an applicant pursuant to subsection 8(1).... [18] B. Subsection 8(1), Duty to Assist: In Order of this office, I agreed with the British Columbia Information and Privacy Commissioner (B.C. Order ) that a public body fulfills its duty to assist an applicant when it makes every reasonable effort to search for records requested and, in a timely way, informs the Applicant what it has done. Likewise, in Alberta, this subsection 8(1) obligation to conduct an adequate search (Alberta Orders , paragraph 13, and F , paragraph 50) has been found to include two components: 1. a requirement to search adequately; and 2. a requirement to provide information to an applicant to show that this duty has been fulfilled. These requirements are the focus of the subsection 8(1) analysis in this review. [19] Adequacy of Search: In order to determine whether an adequate search was conducted, the Commissioner requires evidence as follows: 1. who conducted the search; 2. steps taken by the Public Body to identify and locate records responsive to the Applicant's access request; 3. the scope of the search (areas searched); 4. the steps taken to identify and locate all possible locations of records responsive to the access request; and Page 8 of 27

9 5. reasons the Public Body believes that no more responsive records exist than the ones that have been identified. (Alberta Order F , paragraph 66). [15] Although the burden of proof is on the Public Body, it is helpful for the Applicant to make initial representations to show why he believes that an adequate search was not conducted A Public Body s search does not need to be perfect, but needs to be reasonable. (see for example, PEI Order FI Re: Office of the Premier, 2015 CanLII (PE IPC) at paragraphs 10 and 25). [16] Before the Applicant submitted a request to review to our office, the Applicant advised the Public Body that he believed that there were more responsive records, and the Public Body searched again. During the course of this review, it searched a third time. The Applicant advised the Public Body that he had a source who told him that the Public Body had responsive records, without identifying the source or any particulars. The Public Body asked the Applicant to plainly describe the records to assist the search, but he did not. The Public Body acknowledges and has apologized to the Applicant for delays in responding to some components of his request, and for some page numbering inconsistencies. Request 2 (amount of wetlands) [17] As set out above, in Request 2, the Applicant requested records relating to the province s estimates of how much land in P.E.I. satisfies the definition of wetlands, including any reference to the Applicant s estimates. The Public Body provided details about its search, answering the questions noted at paragraph [14] above. It listed the people who searched, and where. The Public Body did not find responsive records to Request 2. The Applicant submits that the Public Body ought to have located responsive records. Page 9 of 27

10 [18] Regarding Request 2, the Applicant published a critique of the Watercourse and Wetland Regulations of the Environmental Protection Act in a newspaper. I have not reviewed this publication, but understand that it comments on the amount of wetlands in P.E.I. The Applicant states that employees of the Public Body have made remarks such as there are a lot of crazy stories out there. He posits that the Public Body has estimates of the quantity of wetlands on P.E.I., either created by the Public Body, or received by the Public Body, and that the Public Body also has an analysis of the Applicant s published statements. [19] The Applicant provided evidence that an employee of the Public Body, GW, made public statements relating to the quantity of wetlands on P.E.I., in a presentation to the Standing Committee of the Legislature on Agriculture, Environment, Energy and Forestry (Nov 06, 2012). [20] The Applicant also states that he was told by an acquaintance that an employee of the government of Prince Edward Island, RD, made a verbal remark about the Applicant s analysis, that his [the Applicant s] numbers were over the top and were based on plant species. The Applicant submits that this indicates that RD, or someone else, created a record with an analysis of the Applicant s estimates. The records of RD were not searched. [21] The Public Body addressed the concerns of the Applicant about search of the records of the provincial employee, RD. The Public Body confirms that it did not search the records of RD, who was retired at the time of the request but had worked for another public body prior to his retirement. Before the request for access to information, the provincial departments were restructured. The former Department of Environment, Energy and Forestry was split into the Department of Environment, Labour, and Justice and the Department of Agriculture and Forestry. The Public Body explained the previous departmental structure, and that RD worked for the other public body, the Department of Agriculture and Forestry. The Applicant stated he would make a similar Page 10 of 27

11 request to the other public body. Therefore, the Public Body did not transfer the request. Request 3 (presentations to the EAC): [22] The Applicant states that he did not receive a copy of either of two presentations, given to the EAC by employees of the Department of Agriculture and Forestry. The Applicant states that these presentations are noted in the EAC minutes as: a.... a presentation on the P.E.I. Forestry Policy ; and b.... a presentation on environmental education programs on P.E.I. which were introduced into the school system. [23] With respect to the presentation on the P.E.I. Forestry Policy, the Public Body states that it disclosed the presentation about P.E.I. Forestry Policy, and part of the title of the presentation is Prince Edward Island Forestry Policy. The Applicant confirms that he received a copy of this slide deck, but states it is not the presentation made to the EAC. The Public Body has found no copy of the second presentation identified by the Applicant. Request 7 (complaints): [24] Regarding Request 7, the Applicant advises that he submitted a written complaint to the Minister of the Public Body, and he is aware that his father also submitted a written complaint. Neither of these complaints were located as responsive records and disclosed to the Applicant. Because these two complaints were not located in the search, the Applicant believes that this is evidence that the Public Body did not conduct an adequate search. The Applicant provided a description of his complaint and the circumstances of how it was delivered. The Public Body searched again, but was not able to locate the Applicant s complaint or any other complaints. The Public Body states Page 11 of 27

12 it is possible that more complaint records are in the custody or under the control of another public body, the Department of Agriculture and Forestry. Unusable archive: [25] One of the employees of the Public Body, BR, searching for records responsive to all of the Applicant s requests, advised the FOIPP Coordinator that his archive is unusable. His access request review form signed May 17, 2012, notes that his Aarchive is missing s from Oct 2010 to Mar 2012" and further notes that he expected to find other records. He further advised the FOIPP Coordinator that ITSS (Information Technology Shared Services) was looking into the issue. During the course of this review, the Public Body was asked whether this issue was resolved and whether this area was searched. [26] The Public Body advises that it had asked the Applicant to clarify the date range of the search, with respect to Request 7, regarding complaints about the new regulations. The original scope of the Applicant s request was from January 2005 to April The regulations came into effect December 2008, and the Public Body wanted the Applicant to clarify whether he wanted the Public Body to search prior to December Having not received a response from the Applicant, the Public Body did not search this archive again. The Public Body later advised that the archives were working, but is missing parts that never will be restored. Analysis [27] The request for access to information which led to this review is a complex one, and one which required amendment and clarification by the Public Body during the access to information process. It is incumbent upon the Public Body, as part of its duty to assist, to communicate openly with the Applicant. I find that the Public Body made significant Page 12 of 27

13 efforts to do so, in most respects. The access request, as initially presented, was not precise enough for the Public Body to have a clear understanding of which records to search. Subsection 7(2) of the FOIPP Act requires the Applicant to provide enough detail to enable the Public Body to identify the record. The Applicant s request did not fulfill this requirement. For example, Request 3 asks for information which leaves the industry looking in a bad light. This type of request calls for a subjective judgment by the Public Body. Open communication between the parties is necessary so that an applicant s request can be made more specific, and objective. The Applicant s requests were in question format, and were challenging to address. I find that the Public Body made reasonable efforts to respond to all requests, with the exception of the missing archive, discussed more fully below. [28] Regarding Request 2 (amount of wetlands), I accept the Applicant s evidence that an employee of the Public Body cited an estimate of the area of wetlands on P.E.I. The Hansard transcript of the Standing Committee on Agriculture, Environment, Energy and Forestry, dated November 6, 2012, indicates that a representative of the Public Body stated that total wetlands of all types in P.E.I., is 36,293 hectares. Later during the same committee meeting, the representative refers to mapping of wetlands, and describes a GIS (Geographic Information System) database which maps the province and is maintained by the Department of Agriculture and Forestry. The representative states that this GIS database is used to identify wetlands, but that the mapping systems are not 100% perfect. This statement is also illustrated in the P.E.I. Wetland Conservation Policy, 2007, referred to by the Applicant. I have reviewed this 18-page policy, and note that, at that time, it estimates 32,150 hectares of wetlands in P.E.I., based on the 2000 Resource Inventory of Land Use and Land Cover on Prince Edward Island. Based on the Hansard transcript, it is reasonable to conclude that the representative of the Public Body, in 2012, may have checked the estimates in the GIS database, without creating a record. I am not persuaded that the Public Body created or received any reports or correspondence relating to mapping of wetlands. I am satisfied that the Public Body Page 13 of 27

14 conducted a reasonable search for records responding to this part of Request 2, and found none. [29] I also accept the Applicant s evidence that an employee of the Public Body remarked that there were a lot of crazy stories out there, or similar remarks. The Public Body has not denied that an employee made the statement. However, I am not persuaded that the remark establishes that a record of any analysis of the Applicant s estimates was created or is in the custody or control of the Public Body. An employee could formulate an opinion without creating a record. Again, I am satisfied that the Public Body conducted a reasonable search for records responding to this part of Request 2, and found none. [30] With regard to Request 3 (presentations to the EAC) I have inadequate information to persuade me that the record the Public Body provided to the Applicant relating to the P.E.I. Forestry Policy is not the same one presented to the EAC. The Applicant was not in attendance at that meeting, so has no direct knowledge or any evidence that this is not the same presentation. The Applicant states that this presentation was made by another individual, KM, an employee of the Department of Agriculture and Forestry. It is possible that two co-workers used the same slide deck for two different presentations. [31] With respect to the presentation on environmental education programs on P.E.I., I accept that a presentation was made to the EAC, as indicated in the minutes of the EAC, but I have no evidence that a record of the presentation was provided to the Public Body, such as a copy of a slide deck, or speaking notes. I accept the evidence of the Public Body that it conducted an adequate search for presentations, and that it provided the Applicant with the results of its search. Page 14 of 27

15 [32] Regarding Request 7 (complaints), I accept the Public Body s evidence that it has not found any further complaints, including from the Applicant or his father, and that such complaints may be in the custody and control of another public body. In any event, although two records were not found, I do not hold the Public Body to a standard of perfection. The evidence indicates the Public Body invested several hours searching for records, and conducted three searches, satisfying its duty to conduct an adequate search. However, I find that it was not reasonable for the Public Body to postpone searching the missing archives, with the date range from January 2010 to April 2012, in order to wait for an answer from the Applicant about the period prior to December The evidence indicates that the employee who searched his archives had difficulty searching records for that particular date range, and that he expected that the missing date range might contain responsive records. The Public Body had a duty to follow up with that employee, to ensure that a subsequent search of that date range was made, and to communicate openly with the Applicant regarding this search. The Public Body has also not met its duty of timeliness in this regard. There is sufficient evidence before me to find that the Public Body did not conduct a reasonable search for responsive records in this particular archive. As such, I find that the Public Body has not fulfilled its duty to assist the Applicant under section 8 of the FOIPP Act. [33] As a result of my finding, I order the head of the Public Body to conduct a search of the archive, for the date range of January 2010 to April 2012, and to show the Applicant that this duty has been fulfilled. If there are unrecoverable records, the head of the Public Body has a duty to confirm this to the Applicant. I am limited in remedies for a finding that a Public Body did not fulfill its duty to assist an applicant under the FOIPP Act. In accordance with clause 66(3)(c) of the FOIPP Act, it is open to me to order a refund of fees to the Applicant. The processing records of the Public Body indicate that the Applicant paid $270 for the records at issue. Given that the head of the Public Body fulfilled her duty to assist in part, I order the head of the Public Body to refund one half the fees paid by the Applicant. Page 15 of 27

16 Issue #2: Did the head of the Public Body properly apply subsection 14(1) of the FOIPP Act in deciding to refuse to disclose to the Applicant information related to Request 6 regarding the wetland awareness campaign? [34] There are 51 records responsive to Request 6. The Public Body provided these records to the Applicant, but severed information from 8 pages, based on section 14 of the FOIPP Act. There are three types of information that have been withheld by the Public Body from the records at issue: cost estimates; a draft script; and planning information. [35] For information to qualify as an exception to disclosure under subsection 14(1) the information must satisfy each part of the following three-part test of subsection 14(1): a. Disclosure must reveal information that is a trade secret or commercial, financial, labour relations, scientific or technical information of a third party; and b. the information must have been supplied to the Public Body in confidence, either implicitly or explicitly; and c. disclosure of the information must reasonably be expected to cause one of the harms specified in clause 14(1)(c). (i) harm significantly the competitive position or interfere significantly with the negotiating position of a third party, (ii) result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied, Page 16 of 27

17 (iii) result in undue financial loss or gain to any person or organization, or (iv) reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations dispute. [36] Under section 65(1) of the FOIPP Act, when a review relates to a Public Body withholding all or part of a record that is not personal information, it is up to the head of the public body to prove that the applicant has no right of access to the information. [37] The Applicant states I feel strongly that I should be able to see everything related to this request as per the P.E.I. Wetland Conservation Policy. The Applicant states the P.E.I. Wetland Conservation Policy, among other principles, encourages transparency. As noted above, I have reviewed this Policy. One of its stated goals is to promote and develop wetlands education and awareness programs, such as the program which is the subject of Request 6. While the policy mentions transparency as a guiding principle, it does not create a right of access for the Applicant, and does not diminish the mandatory exceptions to disclosure under the FOIPP Act, if properly applied by the head of the Public Body. I also note that the Public Body has demonstrated transparency in disclosing how the funds of its program are disbursed, which is how the Applicant learned of the funds paid to the Third Party. [38] The specific information that the Public Body has withheld from the records at issue is: a. cost estimate range on Pages 1, 3, and 5; b. planning information on Page 19; c. a draft script on Page 24; and d. cost estimate range on Pages 29, 31, and 34 (different cost estimate range than the cost estimate range on pages 1, 3, and 5). Page 17 of 27

18 [39] The Third Party submits that the severed information in the records at issue pertains to trade information that has not been purchased by the client, and that contractual amounts being discussed were still at the negotiations stage. The Third Party also points out the confidentiality clause in correspondence, presumably as evidence that the information in the records at issue was supplied by the Third Party to the Public Body in confidence. [40] With respect to the cost information at pages 1, 3, 5, 29, 31 and 34, the Public Body states the information fits all three parts of the section 14(1) test. The dollar figures provided by the third party represent a breakdown of costs to provide specific services in the future. Because the costs are a breakdown, and a competitor might be able to provide these services at a lower cost and because the third party and the public body did not have a signed contract in place, the information was considered by both parties to have been provided in confidence. It is financial in nature and if disclosed, could result in financial loss should a competitor access it and undercut the third party. You have correctly suggested that the records are negotiation communications for a contract that was not finalized. The information was submitted for consideration for an awareness/marketing campaign the public body was considering embarking on at that time. The campaign was in the early planning stages and the third party was not under contract for the work. The third party indicated that these dollar figures were submitted in confidence and considered them to be financial information which if made public, could afford an advantage a competitor with regard to future work on an awareness campaign. Page 18 of 27

19 [41] With respect to the draft script, Page 24, the Public Body submits it is technical information: We will elaborate on the protection of the draft script under section 14. The information was supplied in confidence by the third party. The third party is part of a creative profession, and the draft script is considered to have commercial value. The third party sells its ideas to its clients and in this case the third party hoped to sell its ideas for a campaign, including this draft script to the public body for consideration with the possibility the public body might purchase it. There was no commitment by the public body and nothing had been finalized between the two parties. The FOIPP Guidelines and Practices Manual provides at page 62 as follows: Technical information relates to particular subjects, crafts or professions that are based on a specific technique or approach. Examples are system design specifications and the plans for an engineering project. [42] The Public Body also claims that the draft script is commercial information. With regard to the planning information, Page 19, the Public Body does not specifically address the type of information under which it falls. [43] To satisfy clause 14(1)(a) of the FOIPP Act, the information under consideration: (i) must be one of the types listed; (ii) must be of a third party; and (iii) would be revealed, that is, not already in the public domain. (Order No. FI , Prince Edward Island (Agriculture, Fisheries and Aquaculture) (Re), 2006 CanLII (PE IPC), at page 7) Page 19 of 27

20 Draft Script, Page 24 [44] With regard to Page 24, the draft script, the Third Party claims that the information is trade information. This is not an expression of the FOIPP Act. I am not persuaded that this information is any of the types of information set out in clause 14(1)(a). Section 14(1)(a) does not require a Public Body to withhold an artistic or literary work, or any other type of work product, from an Applicant. [45] Addressing the Public Body s argument that the information on Page 24 is technical information, I recently accepted the definition of technical information referenced by the Public Body in PEI Order FI , Re: Economic Development and Tourism, 2016 CanLII (PE IPC) at paragraph 20. Technical information is information relating to a particular subject, craft or technique, based on a specific technique or approach. In Alberta Order F , 2011 CanLII (AB OIPC), the Adjudicator reviewed recent decisions from various jurisdictions about the definition of technical information and made the following concluding observations, with which I agree, at paragraph 18: Defining "technical" for the purposes of section 16(1)(a) as referring to information "relating to a particular subject or craft" is consistent with the idea that technical information is information belonging to a third party that has to do with applied sciences and mechanical arts. Technical information, in essence, is information about such things as specialized designs, methods, and technology. [46] Page 24 does not contain information relating to specialized designs, methods or technology of the Third Party. I am not persuaded that the draft script is technical information within subclause 14(1)(a)(ii) of the FOIPP Act. [47] I am also not persuaded that the draft script is commercial information. I have adopted the following definition of commercial information, in Orders FI , Page 20 of 27

21 Prince Edward Island (Economic Development and Tourism) (Re), 2015 CanLII (PE IPC) and FI , Re Prince Edward Island (Family and Human Services) (Re), 2015 CanLII (PE IPC): "commercial information" - Relates to the buying, selling or exchange of merchandise or services. Commercial information includes third party associations, history, references, and insurance policies, as well as pricing structure, market research, business plans, and customer records. In Alberta Order F , 2005 CanLII (AB OIPC), at paragraph 57, the Commissioner held that simply because records are authored by a commercial enterprise does not in itself mean the records are of a commercial nature. If this were the case, any document written on company letterhead would be considered "commercial". In my view, section 14(1) was not intended to have such a broad application. As set out at section 2 of the FOIPP Act, it is a limited and specific exception. [48] I have also considered the remarks of other Canadian Information and Privacy Commissioners offices which have held that the fact that a record might have monetary value or potential monetary value does not necessarily mean that the record itself contains commercial information. Information will only have that character if it refers to the third party s buying, selling, or exchange of merchandise and services. (See for example Alberta Order F , 2016 CanLII (AB OIPC) at paragraph 63, Ontario Order PO-3730, 2017 CanLII (ON IPC) at paragraph 23, Nova Scotia Report FI CanLII (NS FOIPOP).) [49] For the foregoing reasons, I find that the information in Page 24, the draft script, does not satisfy clause 14(1)(a) of the FOIPP Act, as it is none of the types of information described in this clause. Page 21 of 27

22 Cost estimate range on pages 1, 3, and 5 [50] I have also adopted the following definition of financial information, in Orders FI , and FI , supra: "financial information" - Information regarding the monetary resources of a third party, such as the third party's financial capabilities, and assets and liabilities, past or present. Financial information is not limited to information relating to financial transactions in which the third party is involved. [51] On Pages 1, 3, and 5, dollar range information was severed from a duplicate copy of an A good TVC like the concept we discussed would be $[information severed] production value... depending upon the budget [ellipsis in original] [52] The cost estimate range information withheld from Pages 1, 3, and 5 has a 25% variation. While the information is financial in nature, it is not information of the Third Party. I am not persuaded that disclosure of this range reveals commercial or financial information of the Third Party. This was part of preliminary correspondence to prepare a proposal on a project that had not been defined. Without knowing the concept that the Third Party and the Public Body discussed, the dollar range is without any context. I am not persuaded that Pages 1, 3 or 5 contain commercial or financial information of the Third Party. Therefore, clause 14(1)(a) of the FOIPP Act does not apply to Pages 1, 3 or 5. Planning Information, Page 19 [53] With regard to Page 19, the Public Body states s. 14(1) of the FOIPP Act applies but does not specifically discuss its decision to withhold this information. There are three numbered paragraphs that I have generally described as planning information: the content of the television ad; Page 22 of 27

23 scheduling of when to air the television ad; and budget remarks. I will address each of these types of information. [54] I am not persuaded that the discussion about the potential content of the television ad is any of the types of information contemplated in clause 14(1)(a) of the FOIPP Act. Further, while it appears to be a consultation regarding content, I do not consider the information to be proprietary to the Third Party, and therefore not of the Third Party. [55] The particulars of the scheduling of when to air the television ad has been disclosed. Therefore, I find that the summary in this paragraph of Page 19 would not reveal information about the Third Party. Therefore, clause 14(1)(a) does not apply to this information. [56] With regard to the budget remarks, it is apparent from the content of the disclosed information that the budget has not been set and is still being discussed. The budget discussion is about 4 items. It appears that 2 of the items are costs of other third parties, one identified in another record, the others not identified. The estimated costs of the identified third party were disclosed in full to the Applicant. The other two remaining items have also been disclosed to the Applicant. I find that the budget remarks information would not be revealed if the Public Body discloses this information to the Applicant. Therefore, clause 14(1)(a) of the FOIPP Act does not apply to this information. [57] Based on the foregoing, clause 14(1)(a) does not apply to any of the severed information in Page 19, the planning information. Page 23 of 27

24 Cost estimate range on pages 29, 31, and 34 [58] The Public Body severed the dollar range information from the same sentence as it appears on pages 29, 31 and 34. It is also a range of an estimated cost but of a specific service. The Public Body s submissions relating to these records focus on the harm to the Third Party s competitive position should this information be disclosed. Therefore, I will analyze clause 14(1)(c) of the FOIPP Act. [59] To meet clause 14(1)(c) of the FOIPP Act, disclosure of the information must reasonably be expected to result in one of the four outcomes set out. The Third Party references negotiations, and the Public Body states that disclosure may reasonably result in a competitor being able to provide comparable series for less money resulting in a financial loss to the third party. I interpret these submissions to reference clauses 14(1)(c)(i) and (iii), that disclosure will harm significantly the competitive position or interfere significantly with the negotiating position of the Third Party, and that disclosure will result in undue financial loss. [60] The standard of proof for clause 14(1)(c) of the FOIPP Act was set out by the court in CBC v. Privacy Commissioner& IIDI, 2012 PESC 32 (CanLII), at paragraphs Relying on Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII), the court concluded that the standard is more along the continuum toward a probability in the Provincial legislation, but nonetheless points to proof beyond a mere possibility. The court also found that the type of evidence that meets this standard must be detailed and convincing. [61] I am not persuaded that the outcomes contemplated in clause 14(1)(c) of the FOIPP Act could reasonably be expected to occur if Pages 29, 31, or 34 were disclosed to the Applicant. The Public Body has previously disclosed the actual payment amount for this service. This disclosure is how the Applicant learned about the payments to the Third Page 24 of 27

25 Party for the awareness campaign. The previously disclosed payment is within the range of the estimated cost. Neither the Public Body nor the Third Party have provided detailed and convincing evidence of harm arising from the disclosure of the actual cost of the service. I am not therefore persuaded that either clause 14(1)(c)(i) or (iii) apply to the disclosure of the estimated cost range at Pages 29, 31, or 34. [62] Based on the foregoing, I find that clause 14(1)(c) of the FOIPP Act does not apply to any of the severed information in Pages 29, 31, or 34 of the records at issue. V. FINDINGS [63] Regarding the Public Body s duty to assist, under section 8 of the FOIPP Act, I find as follows: The head of the Public Body fulfilled her duty to assist the Applicant by responding openly and accurately, and by conducting an adequate search, with one exception. In failing to search the missing archive, for the date range from January 2010 to April 2012, the head of the Public Body did not conduct a reasonable search, or communicate with the Applicant in a timely way, and therefore did not fulfill her duty to assist the Applicant, violating section 8 of the FOIPP Act. [64] Regarding Page 24 of the records at issue, the draft script, I find that this record does not contain any of the types of information listed in clause 14(1)(a) of the FOIPP Act, and therefore does not satisfy this exception to disclosure. [65] Regarding Pages 1, 3 and 5 of the records at issue, I find that these records contain financial information that is not of the Third Party, and therefore, does not satisfy clause 14(1)(a) of the FOIPP Act. Page 25 of 27

26 [66] Regarding Page 19 of the records at issue, planning information, I find that the content of the telephone ad information is not of the Third Party, and the remainder of the information would not be revealed by disclosure of this record. [67] Regarding Pages 29, 31 and 34 of the records at issue, I find that there is insufficient evidence that disclosure of the information in these records would lead to any of the outcomes described in clause 14(1)(c) of the FOIPP Act. VI. ORDER [68] I order the head of the Public Body to provide the Applicant with full access to the records at issue, Pages 1, 3, 5, 19, 24, 29, 31 and 34, as section 14 of the FOIPP Act does not apply to the information in these records. [69] I order the head of the Public Body to conduct a further search of the archives of BR, for the date range from January 2010 to April 2012, and to provide the Applicant with the results of the search. [70] I order the head of the Public Body to refund the Applicant one half the fees paid for making his request to access information. [71] I thank the parties for their submissions, and for their patience in awaiting the resolution of this review. In accordance with subsection 68(1.1) of the FOIPP Act, the Public Body shall not take any steps to comply with this order until the end of the time Page 26 of 27

27 period for bringing an application for judicial review of the order under section 3 of the Judicial Review Act, R.S.P.E.I. 1988, c J-3. Karen A. Rose Information and Privacy Commissioner Page 27 of 27