Request for a record relating to superferry construction in the custody or under the control of the British Columbia Ferry Corporation

ISSN 1198-6182

Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 289-1999
January 12, 1999

INQUIRY RE: Request for a record relating to superferry construction in the custody or under the control of the British Columbia Ferry Corporation

Note: The Director's report, containing the recommendations implemented in this order, is attached to, and forms a part of, this electronic document.

Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 250-387-5629
Facsimile: 250-387-1696
Web Site: http://www.oipc.bc.ca

1. Description of the review

This Order relates to an inquiry conducted by the Director of the Office of the Information and Privacy Commissioner (the Director) concerning a request for review of the decision of the British Columbia Ferry Corporation to sever and withhold a report (the record) relating to the contract for the construction of two superferries. The Director also conducted a second inquiry concerning the same record, but involving different applicants and the British Columbia Ferry Corporation and the Job Protection Commission.

I disqualified myself from this inquiry because of a personal interest. On April 7, 1998, I delegated authority to conduct reviews to the Director pursuant to Section 49 of the Freedom of Information and Protection of Privacy Act (the Act) which provides as follows:

Delegation by commissioner

49(1) The commissioner may delegate to any person any duty, power or function of the commissioner under this Act, except

(a) the power to delegate under this section,

(b) the power to examine information described in Section 12(1) and (2) or 15 (Cabinet confidences and information harmful to law enforcement), and

(c) the duties, powers and functions specified in Section 42(1)(b), 43 or 58.
(2) A delegation under subsection (1) must be in writing and may contain any conditions or restrictions the commissioner considers appropriate.

Although Section 49 authorizes delegation of authority to conduct inquiries under Section 56 of the Act, it does not authorize delegation of my authority to make Orders under Section 58.

On May 14, 1998, the Director advised the applicant and the public body of the process to be followed:

I will be conducting this inquiry independent of the Commissioner who has disqualified himself from this matter because of personal interest. The Commissioner has had no involvement in the investigation or mediation of this matter and will have no involvement in the inquiry. He will be executing the order I recommend as a result of the inquiry, however,

because Section 49(1)(c) of the Act prohibits the Commissioner from delegating the authority to make orders under Section 58 of the Act.

No objections were raised to the process outlined in this letter.

The Director completed the inquiry and prepared a report, a copy of which is attached to this Order. I took no part in the inquiry or the preparation of the report. After receiving the Director's report, I reviewed the submissions and the record in dispute. I have adopted the Director's recommendations without variation in this Order.

2. Order

I accept the recommendations of the Director of the Office of the Information and Privacy Commissioner set out in the attached report and make the following Orders:

I find that the British Columbia Ferry Corporation was authorized to withhold the information severed from Part 4 of the record under Section 13(1) of the Act. Under Section 58(2)(b) of the Act, I confirm that the British Columbia Ferry Corporation was authorized to refuse access.

I find that the British Columbia Ferry Corporation was not authorized to withhold the information severed from page 10 of the record under Section 13(1) of the Act. However, I find that the British Columbia Ferry Corporation was authorized to withhold the information severed from page 10 of the record under Section 17 of the Act. Under Section 58(2)(b) of the Act, I confirm that the British Columbia Ferry Corporation was authorized to refuse access to the information severed from page 10 under Section 17 of the Act.

I find that the British Columbia Ferry Corporation was authorized to withhold some, but not all, of the information severed from the record under Section 17 of the Act. The Director of the Office of the Information and Privacy Commissioner has prepared a severed copy of the record to indicate which information must be disclosed and which information may be withheld. Under Section 58(2)(a), I require the British Columbia Ferry Corporation to give the applicant access to those portions of the record which it is not authorized to withhold under Section 17 of the Act. Under Section 58(2)(b) of the Act, I confirm the decision of the British Columbia Ferry Corporation to refuse access to the remainder of the information withheld under Section 17.

I find that the British Columbia Ferry Corporation was required to withhold some, but not all, of the information severed from the record under Section 21 of the Act. The Director of the Office of the Information and Privacy Commissioner has prepared a severed copy of the record to indicate which information must be disclosed and which information must be withheld. Under Section 58(2)(a) of the Act, I require the British Columbia Ferry Corporation to give the applicant access to those portions of the record that it was not required to withhold under Section 21 of the Act. Under Section 58(2)(c), I require the British Columbia Ferry Corporation to refuse access to the remainder of the information withheld under Section 21.

I find that the British Columbia Ferry Corporation was required to refuse access to the information severed under Section 22(1) of the Act, with the exception of the information severed at pages 12 and 44 of the record. Under Section 58(2)(a), I require the British Columbia Ferry Corporation to give the applicant access to the information withheld at pages 12 and 44 of the record under Section 22(1) of the Act. Under Section 58(2)(c), I require the British Columbia Ferry Corporation to refuse access to the remainder of the information withheld under Section 22(1).

David H. Flaherty Commissioner

January 12, 1999

Order No. 289-1999,
January 12, 1999
Information and Privacy Commissioner of British Columbia

ISSN 1198-6182 [back to top]

Office of the Information and Privacy Commissioner
Province of British Columbia

January 12, 1999

REPORT BY THE DIRECTOR OF THE OFFICE OF THE INFORMATION AND PRIVACY COMMISSIONER: Request for a record relating to superferry construction in the custody or under the control of the British Columbia Ferry Corporation

Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 250-387-5629
Facsimile: 250-387-1696
Web Site: http://www.oipc.bc.ca

REPORT BY THE DIRECTOR OF THE OFFICE OF THE INFORMATION AND PRIVACY COMMISSIONER

1. Description of the review

As Director of the Office of the Information and Privacy Commissioner, I recently conducted a written inquiry under Section 56 of the Freedom of Information and Protection of Privacy Act (the Act), the second of two dealing with a report relating to the contract for the construction of two superferries. The first inquiry arose out of two requests for review of the Job Protection Commission's and the British Columbia Ferry Corporation's decisions to sever and withhold a record in response to another request relating to the construction of superferries in British Columbia. (See Order No. 288-1999, January 12, 1999)

This second inquiry involves the British Columbia Ferry Corporation (BC Ferries) and the same record, but a different applicant.

2. Documentation of the inquiry process

On December 16, 1997 a lawyer with Acheson & Company (the applicant) requested a copy of a report (the record) prepared by Harold Halvorson of the Office of the Job Protection Commissioner. The applicant directed his request for the record to BC Ferries. The title of the record is "Treatment of Integrated Ferry Constructors Inc. during Superferry Program," also known as the "Halvorson Report" and the "Fairness Report."

On January 19, 1998 BC Ferries responded by providing the applicant with a severed copy of the record. It severed information and personal information from the record under sections 13, 17, and 22 of the Act. BC Ferries corrected the sections used for severing the document by letter on February 26, 1998 to sections 13, 17, 21, and 22 of the Act.

On February 9, 1998 the applicant requested a review of the disclosure decision of BC Ferries. During mediation, BC Ferries agreed to disclose additional information from the record.

The applicant was not satisfied with the outcome of mediation and requested an inquiry by the Information and Privacy Commissioner. By written agreement of the applicant and BC Ferries, the time limit for the review was extended to permit the inquiry to be held on June 8, 1998. On May 19, 1998 the Office of the Information and Privacy Commissioner gave notice to the parties of the June 9, 1998 written inquiry. The parties subsequently agreed to file submissions by June 16, 1998.

BC Ferries severed portions of the record under Section 21 of the Act. However, it did not consult third parties during the processing of the requests for the record, nor were they invited to participate in mediation. As well, the Office did not give any third parties standing to participate in the written inquiry.

3. Issue under review and the burden of proof

The issue to be reviewed by the Director of the Office of the Information and Privacy Commissioner is the decision of BC Ferries to apply Section 13 (policy advice and recommendations), Section 17 (financial or economic interests of the public bodies), Section 21 (third-party business information), and Section 22 (third-party personal information) of the Act to sever information from the record.

The relevant parts of sections 13, 17, 21, and 22 are:

Policy advice or recommendations

13(1) The head of a public body may refuse to disclose to an applicant information that would reveal advice or recommendations
developed by or for a public body or a minister.

(2) The head of a public body must not refuse to disclose under subsection (1)

(a) any factual material,
...

(g) a final report or final audit on the performance or efficiency of a public body or on any of its programs or policies,
...
(k) a report of a task force, committee, council or similar body that has been established to consider any matter and make reports or recommendations to a public body,....

Disclosure harmful to the financial or economic interests of a public body

17(1) The head of a public body may refuse to disclose to an applicant information the disclosure of which could reasonably be expected to harm the financial or economic interests of a public body or the government of British Columbia or the ability of that government to manage the economy, including the following information:

(a) trade secrets of a public body or the government of British Columbia;

(b) financial, commercial, scientific or technical information that belongs to a public body or to the government of British Columbia and that has, or is reasonably likely to have, monetary value;

(c) plans that relate to the management of personnel of or the administration of a public body and that have not yet been implemented or made public;

(d) information the disclosure of which could reasonably be expected to result in the premature disclosure of a proposal or project or in undue financial loss or gain to a third party;

(e) information about negotiations carried on by or for a public body or the government of British Columbia.
Disclosure harmful to business interests of a third party

21(1) The head of a public body must refuse to disclose to an applicant information

(a) that would reveal

(i) trade secrets of a third party, or

(ii) commercial, financial, labour relations, scientific or technical information of a third party,
(b) that is supplied, implicitly or explicitly, in confidence, and

(c) the disclosure of which could reasonably be expected to

(i) harm significantly the competitive position or interfere significantly with the negotiating position of the 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,....
Disclosure harmful to personal privacy

22(1) The head of a public body must refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party's personal privacy.

Section 57 of the Act establishes the burden of proof on the parties in an inquiry. Under Section 57(1) of the Act, where access to information in the record has been refused under sections 13, 17, and 21, it is up to the public body to prove that the applicant has no right of access to parts of the record.

Under Section 57(2), if the record or part of the record that the applicant is refused access to under Section 22 contains personal information about a third party, it is up to the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party's personal privacy.

4. The record in dispute

The record in dispute is a fifty-three page report prepared in March 1994 by Harold Halvorson of the Office of the Job Protection Commission.

5. Procedural objections

BC Ferries objected to the submission of two affidavits tendered by the applicant in reply on the basis that they had been submitted in support of factual statements made by the applicant in his initial argument and should properly have been submitted with his initial submission. The applicant argued that he felt compelled to submit these affidavits in response to new facts raised in BC Ferries' reply submission. Some of the new affidavit material turns on the question of whether BC Ferries directed Integrated Ferry Constructors Inc. to award subcontracts to Pacific Rim Ship Builders Ltd. As indicated in my report in relation to Order No. 288-1999, it is not necessary to determine this issue in the context of the application of sections 13, 17, 21, or 22 of the Act. The remainder of the affidavit material alludes to the poor cost control of Pacific Rim Ship Builders Ltd. and the events leading up to the Halvorson Report. Although I agree that this is not proper reply evidence, it is, nevertheless, information which was largely placed in evidence in the other inquiry. As these two inquiries are being heard together, it is not necessary to place any reliance on the new affidavit material submitted in reply by the applicant.

6. The applicant's case

The applicant submits that the personal information that was withheld from pages 2 and 10 of the record was not properly withheld pursuant to Section 22 of the Act. It concerns persons who were simply interviewed in the process of making the report, and he submits disclosure of the names of witnesses ought to have occurred. (Initial Submission of the Applicant, p. 3)

The applicant submits that the record was an independent investigation into whether Integrated Ferry Constructors Inc. had been fairly treated by BC Ferries. It is clear from those portions produced of the record that it addressed issues between only two parties (Integrated Ferry Constructors Inc. and BC Ferries), and those issues were "contract type" issues and "systemic" issues. No third party can be affected by disclosure of the record, because the issues are between those parties alone. (Initial Submission of the Applicant, p. 4)

The applicant goes on to add that there is no evidence of a reasonable expectation of harm to BC Ferries if the record is disclosed. According to the applicant, "harm" in this context must mean damage or injury that, in fairness or in equity, BC Ferries should not have to bear. In other words, the harm that BC Ferries must show it will suffer if the report is disclosed must be of a sort that a reasonable person, objectively and fairly considering the merits of the case, would say BC Ferries should not have to suffer or is unfair. The disclosure, to cause "harm," must include information, a recommendation, or a finding that would unfairly prejudice BC Ferries. The record can only be expected to recommend what was, in the opinion of the Job Protection Commissioner, fair for BC Ferries to pay. That cannot amount to "harm." (Reply Submission of the Applicant, p. 4)

7. British Columbia Ferry Corporation's case

BC Ferries submits that under Section 57(2) of the Act, the burden rests on the applicant to "prove that disclosure of the information would not be an unreasonable invasion of the third party's personal privacy."

BC Ferries further submits that the initial submissions of the applicant do not contain evidence or argument that would support disclosure of any other names of private individuals or other personal information. (Reply Submission of BC Ferries, pp. 7, 8)

8. Discussion

My recommendations on the merits of BC Ferries' arguments with regard to sections 13, 17, and 21 are set out in Order No. 288-1999. I considered the applicant's submissions in this inquiry prior to making those recommendations. I would add only that "harm" in the context of Section 17 does not mean damage or injury that a public body should not, in fairness or equity, have to bear. The test is simply whether the public body can establish a reasonable expectation of harm. This test does not have regard to equitable considerations.

In respect of Section 22, the affidavit of Marilyn Grant establishes that BC Ferries released personal information that related to individuals employed by, or on behalf of, BC Ferries, and that BC Ferries only severed and withheld the "names, phone numbers and, in certain cases, addresses of other individuals who had retired or were acting in a private capacity." Since the severed information constitutes addresses and telephone numbers of what appear to be private residences, such personal information was properly withheld. BC Ferries has released personal information of individuals who were acting as public employees with respect to matters addressed in the Halvorson Report, even though those individuals had been interviewed in confidence by Harold Halvorson. BC Ferries submits that its severing of names and other personal information of private individuals - who were interviewed in confidence by Harold Halvorson - is reasonable and strikes an appropriate balance between the right of access and the right of privacy. (Reply Submission of BC Ferries, pp. 7, 8)

I agree with this submission of BC Ferries and with the application of Section 22 to all of the information except the two references at pages 12 and 44 of the record, which do not properly fall within the scope of Section 22. I find that the applicant has failed to discharge the burden of establishing that disclosure of the information in dispute would not be an unreasonable invasion of the third parties' personal privacy, except for the two references at pp. 12 and 44 mentioned in the previous sentence.

9. Recommendations:

I recommend that the Information and Privacy Commissioner find that the British Columbia Ferry Corporation was authorized to withhold the information severed from Part 4 of the record under Section 13(1) of the Act, but was not authorized to sever information from page 10 of the record under Section 13(1). However, I recommend that the Information and Privacy Commissioner find that the information severed from page 10 of the record was properly withheld under Section 17 of the Act.

I recommend that the Information and Privacy Commissioner find that the British Columbia Ferry Corporation was authorized to withhold some, but not all, of the information severed from the record under Section 17 of the Act. I have provided the Information and Privacy Commissioner with a severed copy of the record to indicate which parts I recommend cannot be withheld under Section 17.

I recommend that the Information and Privacy Commissioner find that the British Columbia Ferry Corporation was required to withhold some, but not all, of the information severed from the record under Section 21 of the Act. I have provided the Information and Privacy Commissioner with a severed copy of the record to indicate which parts I recommend cannot be withheld under Section 21.

I recommend that the Information and Privacy Commissioner also find that the British Columbia Ferry Corporation was required to refuse access to the personal information severed under Section 22(1) of the Act, with the exception of the information severed at pages 12 and 44 of the record.

I further recommend that under Section 58(2)(a) of the Act, the Information and Privacy Commissioner require the British Columbia Ferry Corporation to provide the applicant with a copy of the record that I have marked for disclosure and have given to the Information and Privacy Commissioner.

Lorrainne A. Dixon
Director

January 12, 1999

Report by the Director of the Office of the
Information and Privacy Commissioner of British Columbia
See Order 289-1999,
January 12, 1999