The proponent is losing their desperate battle to keep their government communications secret

Summary
The proponent has been using every means available to them (including delay, threatening legal action, appeals, and abusing the process), trying to prevent us from receiving copies of their communications with the MNRF. Recent decisions require that these documents be disclosed to us.

Detail
Ontario’s Freedom of Information and Protection of Privacy Act allows the public to request copies of government documents, such as the Ministry of Natural Resources and Forestry’s e-mail communications with the proponent.

We have been submitted these requests for many years and some examples of what we have learned is that the:

• Proponent’s construction plans would risk flooding Lake Muskoka and risk damaging the District Municipality of Muskoka’s bridge over the Bala north channel.
• Proponent was providing conflicting information to different approval agencies.
• Proposed generating station would make the water dangerous outside of the proposed downstream safety boom.
• May not be able to locate warning signs in the locations needed to adequately warn the public of the extreme dangers their proposed project would create.

The legislation allows the proponent to object to the release of these documents, and this results in the case being transferred from the Ministry to the Office of the Information and Privacy Commissioner of Ontario, who begins with a Mediation process and if this does not resolve the objection, then an Adjudication process is started. The proponent has been abusing this process by delaying Mediation, threatening legal action, and objecting to Adjudication orders.

The Adjudication alone can take more than a year, and begins with the Adjudicator providing a Notice of Inquiry and requesting representations from the parties (often there are at least three parties – the proponent, the Ministry, and us – but lately the proponent has been conscripting three of their sub-contractors to also object, so there have been six parties, making for a complex process). Representations are quasi-legal documents responding to questions concerning whether specific documents should be released or are exempted from being released, typically citing previous decisions to justify arguments made.

So you can see some of the time and attention to detail involved, here are just some of the documents from one of the four Adjudications so far:

1. The Adjudication process begins with the Adjudicator sending one or more parties to the appeal a Notice of Inquiry. This is a detailed 41-page document describing the issues that must be addressed in the representations.
    
2. The proponent then provided 55 pages of representations, and the MNRF provided six pages of representations.
    
3. We then responded to these with 75 pages, comprising:
   1. A cover letter describing the files comprising my response.
   2. Our representations, which is a 21-page document.
   3. The Appendices to which my representations referred, totalling 41 pages.
   4. While the Freedom of Information and Protection of Privacy Act allows exemptions so particular types of documents will not be released (such as documents which were marked as confidential if it can be shown their release would cause harm such as loss of trade secrets), there is a “public interest override” provision where documents which would benefit the broad public interest can be disclosed even if they are found to be confidential. We therefore provided a seven-page document with examples showing that information previously received through the Freedom of Information process were of broad public benefit.
   5. Representations should be limited to 20 pages, but the proponent had additional information to present, so they provided “supplementary representations”, to which we provided a five-page response document.
       
4. After waiting 14 months, the Adjudicator issued a 56-page Order dismissing all of the proponent’s representations either as having no merit, or being subject to the public interest override. The Order required all records at issue to be released.
    
5. The proponent then submitted a Request for Reconsideration, claiming eight grounds where the Adjudicator erred. After several more weeks the Adjudicator released a 29-page document dismissing all grounds and ordering that all records at issue be released.

It has now been more than three years since the initiating Freedom of Information request was submitted, and while some documents have been released, we await these last documents which have been ordered to be released.