Order MO-3827 – A Streetcar Named Disclosure

The conversation about the compelling public interest override is ongoing for those of us who administer provincial access laws. Supporting the public’s efforts to access government information is important. It’s also vital that institutions carefully examine the public interest override provision when deciding whether to disclose information.

Order PO-3617, in which my office ordered the release of names of and amounts paid to Ontario’s top OHIP billers, was the subject of significant public debate. The call for the public release of the information grew even louder as a third party appellant challenged the decision based on privacy interests and was subsequently denied leave to appeal to the Supreme Court of Canada. The demand for disclosure of OHIP billings that were once considered a private matter is obviously growing.

Another Ontario institution recently took the progressive step of citing a compelling public interest in a decision to release a controversial report, despite the application of a personal privacy exemption. On appeal by a person named in the report, our office upheld the institution’s decision in Order MO-3295. This decision was upheld by the Ontario Court of Appeals. However, this individual has also sought leave to the Supreme Court to have the decision overturned. The decision as to whether the court will hear the case has not yet been rendered.

This week’s order of note, MO-3827, continues the discussion of where the public’s right to know overrides some exemptions. This order examines the use of a third party exemption designed to limit the disclosure of confidential information of third parties that could be exploited by competitors in the marketplace.

Prompted by delays in the delivery of new streetcars and the amount spent on repairs to the existing fleet, a reporter asked the TTC for records related to a $1billion order for new vehicles.

The reporter was granted access to the majority of the information at issue, with the TTC withholding only a small portion that the requester did not appeal. The company responsible for delivering the streetcars, however, filed an appeal with our office to block access to the information that the TTC was prepare to disclose, citing the third party information exemption. Both the reporter and the TTC argued that there was a public interest in the disclosure of the information that the third party sought to have withheld.

Our adjudicator agreed that some of the information, including production rates, unit pricing and the underlying reasons behind the delay qualified for the third party information exemption. However, she found that disclosure of the information relating to the reasons behind the delayed deliveries was in the public interest. Considering the substantial expenditure of public funds and the effect the delay has on the lives of millions of commuters, people had a right to know the details of the reasons for the delay. In Order MO-3827, our adjudicator ordered that information released.

I’m pleased to see institutions showing a strong commitment to transparency and open government. Private-sector contractors who bid on government projects must do so with an understanding of the public’s right to hold governments accountable, and with the knowledge that access to information is an integral part of that process.

Read order in full: MO-3827

Brian Beamish
Commissioner