It looks like Acting Privacy Commissioner Haldemann is poised to order release the names of the businesses who got grants or loans under the Provincial Nominee Program.
The Opposition couldn’t get Premier Ghiz to disclose the names of PNP recipients. The Attorney General was muzzled. The Public Accounts Committee of the Legislature was stonewalled.
If Privacy Commissioner Haldemann rules for disclosure tomorrow, the Government can still order a judicial review of her order. Judicial inquiries are rarely used by the Government. In two I researched, one was upheld and in another the Government had the order vacated.
However, the more Ghiz delays this process the more he looks like he is hiding something. That stain will not wash out of the public conscious.
Government agencies have been hiding behind the paperwork in FOIP. The have forced the media and individuals to mount expensive appeals to the Commissioner. Simply acceding to requests is within the spirit of the law which is the Freedom of Information … Act not Secrecy of Information… Act.
The Guardian said the Commissioner’s office wanted to give people fair warning. “We’re just giving a heads up to people that this is coming.”
Haldemann has already given orders on the same basis in the past. One never knows what her decision will be until the order comes down. That being said, she will likely order Island Investment Development Inc., based on past orders, to reveal at least the grant recipients by company name and the amounts.
Four separate applications were filed under the Freedom of Information and Privacy Act to learn who had received PNP funds.
Order to release loan amounts for large business
In an Order dated April 2009, the Privacy Commissioner ruled that PEI Business Development could not withhold the loan amounts, dates and interest rates for a company with 13 affiliates. The company argued it was negotiating a sale of the business; however, the Commissioner said that disclosure could not be demonstrated to cause serious harm or reveal trade secrets.
The FOIP act does exclude some information from public release under section 14.1
“14. (1) Subject to subsection (2), the head of a public body shall 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, explicitly or implicitly, 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 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, (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.”
The Privacy Commissioner found the amounts of loans granted were a) not supplied by business and b) not excluded for any of the reasons in the FOIP Act.
In a previous ruling, the Privacy Commissioner ruled that creating a spreadsheet containing the financial data did not place a burden on the Government.
I venture to say that the Public Body has all the information of interest to the Applicant in electronic form already — in an electronic spreadsheet or database. The Public Body says it would have to create a new spreadsheet to compile the information that the Applicant wants. They could create a new spreadsheet, but it is not necessary to do that.
I fail to see the necessity for further verification. Therefore, I find that the arguments of the Public Body regarding interference with the operations of the Public Body are untenable, and there is no actual necessity for 110 hours of searching papers, verification and the development of a separate spreadsheet to meet the access request. I must conclude that, having clarified that it is financial information that is of interest to the Applicant, the work necessary to provide such financial information is not nearly as onerous as a search for “agreements”.
Loans and grants for family business
In another Order in January 2010 to the PEI Lending Agency, a family owned business argued that the information was personal and should not be released. Along with the reasons in the previous case, the Privacy Commissioner held that a business is not a “person” and therefore business information is not “personal information.” The request was granted for both loan and grant information.
Interestingly, the Privacy Commissioner was not swayed by the revelation of similar information by ACOA. She held that ACOA was a Federal crown corporation and bound by different laws and jurisdiction.
In both cases, the Privacy Commissioner came down squarely on the side of disclosing the amounts of loans or grants from both PEI Business Development and PEI Lending Agency. The PNP grants were controlled by Island Investment Development Inc which is the new name for Enterprise PEI, as of 2009. It is a sister crown corporation to both PEI Lending Agency and PEI Business Development in the ever changing game of “name that government agency.”