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Office of the Information and

Privacy Commissioner of Alberta

March 8111. 2018

Mr. Paul Barrette Ms. Francesca Pen-Hill


#1300, 10020-10 IA Avenue FOIP Coordinator
Edmonton, AB T5J 3G2 City of Edmonton
3rd
Floor, City Hall
I Sir Winston Churchill Square
Edmonton, AB T5J 2R7

Dear Mr. Barrette and Ms. Perri-1-lill;

Re: Request for Review OIPC File #006841


Public Body File #201 7-G-0461

I am writing about the Request for Review from Mr. Paul Barrette (the Applicant) that
this Office review the response he received from the City of Edmonton (the Public Body)
in response to the access request he made under the Freedom of Injör,nation and
Protection of Privacy Act (the Act).

Access request and response

The Applicant’s access request, dated August 30, 2017, was for:

A list of properties from which land will be required for the Yellowhead Trail
Freeway Conversion.

On September 19, 2017, the Public Body replied to the Applicant and indicated that
access to the records, in their entirety, was withheld under sections 25(1 )(c) arid 27(1) of
the Act. The Public Body indicated there were 13 pages of responsive records.

Note: on December 8,2017, the Public Body advised the Office of the Information and
Privacy Commissioner (OIPC) that it no longer wished to apply section 27 as the basis
for withholding the responsive records.

Applicant’s concern

The Applicant is concerned that he was denied access to the requested information.

Head Office. 410, 9925-109 Street NW, Edmonton, Alberta, Canada, T5K 2.18 telephone. 780-422-6860 toll-free, 1
fax. 780-422-5682 web. oipc.ab.ca email. generalinfo@oipc.ab.ca
Issue Addressed

Section 25: Disclosure harmful to the economic and oilier interests ofapubhc body

Did the Public Body properly apply section 25(1) of the Act (economic interests
of a public body) to the information record(s)?

Review’ findings

The “Responsive” records in question

On December 8,2017, the Public Body sent a copy of the responsive records (13 pages)
to the OIPC. In my opinion, these pages could be divided into two (2) groups.

Group A (pages ito 10)— these pages contain a number of spread sheets with the title of
“Yellowhead Trail Freeway Conversion Project”. In addition to property addresses, the
spread sheets contain other information such as: the Public Body’s internal reference
numbers / locational names of the properties, timeline / status / phasing relating to the
activities, and comments (if applicable).

The comments suggested that the status of certain properties was “surplus” or
cancelled”. As the Applicant’s request was for a list of properties that will be required
for the project, I consider only the list of properties (addresses) to be relevant to the
request and, of those addresses, only those properties not identified as “surplus” or
“cancelled” are relevant.

The remaining information is outside the scope of the request.

It seems the spread sheets on pages I to 10 contain the “raw” data for which a list of
properties responsive to the request could be compiled (see discussion on Group B
below). I do not understand why the Public Body chose to include these spread sheets in
the responsive record package, as the records in Group B, on their own, would fulfill the
record requirements for this request.

Group B (pages ii to 13) —These pages contain two lists. The title of these three pages
says “As per the FOP Request, below are the properties from which land has currently
been identified for the Yellowhead Trail Freeway Conversion Project as of August 30,
2017”. It seems the lists were compiled specifically in response to this request, likely
from the spread sheets on pages Ito 10. The information contained in the lists would
meet squarely within the scope of the request.

These pages contain two lists. The first list is on pages 11 and 12. The second list is on
page 13, which in reality is a condensed version of pages 12, and 13. Therefore, page 13
contains all of the required information. The inclusion of the same list on pages II and
12. in my opinion, was redundant.

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Based on the above analysis, I will focus the main discussion to the list on Page 13 only.

Comments from the Public Body

On January 9, 2018, 1 asked the Public Body to explain why the provisions of the FOIP
Act apply to the records at issue. I specifically asked the Public Body to explain how the
“harms test” in section 25 is met.

In its response dated February 9,2018, the Public Body indicated that the information in
the records is preliminary in nature and may not reflect the actual requirements. The
Public Body provided detailed arguments on how a disclosure of the timing and phasing
information would result in financial losses, and would interfere with negotiations for the
acquisition of the properties.

In my view, the Public Body has not articulated what concerns and harms, if any, would
be created if only the list of properties was disclosed. For pages Ito 10, the Public Body
could have redacted all information, except for the addresses, as “Not Applicable or
N/A”. In fact, the inclusion of pages 1 to 10 in the responsive record package was, in my
opinion, unnecessary.

As the Public Body’s response primarily addressed the information that is not really
relevant to the request, I have decided not to assess the merits of the Public Body’s
arguments further.

On February 12, 2018, 1 advised the Public Body, through email, that their submission
did not include sufficient arguments to explain why withholding the list of properties
only (i.e. page 13) could be justified under section 25 of the Act. I asked the Public Body
to provide me with arguments relating to the list of properties only. The Public Body
replied to me on February 27, 2018. Following are the main arguments submitted by the
Public Body.

The list ofproperties on page 13 does not constitute the final list ofproperties.
As the City proceeds to acquire the land requiredfor the lilT (Yellowhead Trail)
Conversion, the final route will change depending on a number offactors.
Consequently, there is a serious risk that an owner who is operating under the
understanding that their property is (or is tiot,) eannarkedjbr the lilT Conversion
may make decision regarding their land (‘and, pot entially, their business,) based
on such information. I/the need for the property changes in the future, the City
and/or the landowner will likely be prejudiced as a result. For example, an owner
whose land is identified as required may choose not to enter into a long term
lease with a potential tenant. If the City’s requirements for tins land changes in
the fbture. the owner is left in a prejudiced position having lost the opportunity to
obtain a long term tenant.

Further, there is a serious risk that disclosing the records will negatively affect
the City’s negotiating position and inteifere with its contractual negotiations as it
seeks to assemble land for the lilT Conversion on a voluntary basis. Ifa
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motivated seller is seeking to sell their property, the City may purchase it for
market value. If a property owner learns that their property has been identjfied
for cxcquisit ion by the City they may choose to delay selling the proper!).’ and seek
either an inflated sales prices from the City or choose not to negotiate and instead
wait for the property to be expropriated.

Sections 35 and 12 of the Expropriation Act set out the compensation that an
expropriating authority must pay an affected owner, including appraisal costs,
solicitor costs, the market value ofthe land, damage attributable to disturbance,
the value of any element of special economic advantage to the owner arising out
oft/xe owner ‘s occupation of the land, and damages for injurious affections. A
reasonable person contemplating the sale of their land would hold onto it seeking
compensation from the City beyond the market value of the land and
improvements. In other words, in learning that their land is under the threat of
expropriation, a reasonable owner may choose to hold onto their property and
use this infOrmation to arrange their affOIrs in order to (I) maximize potential
damages; and (2) obtain apricejOrproperty that is above market value.

The release of the list ofproperties creates a reasonable expectation ofprobably


harm, constitutes financial detriment, and the release ofthe list ofproperties,
potentially to a land owner who owns one of the properties identflecl in the
record, could result in the City being required to pay a higher sales price for
required properties or incur the additional expenses as set out in the
Expropriation Act,

Anal vsis

The Public Body maintains that sections 25(I)(c)(i), 25(1)(c)(ii). and 25(1)(c)Oii) apply
to the list of properties from which land will be required for the YHT Conversion.

Section 25(l)(c) provides that a public body may refuse to disclose information to an
applicant if the disclosure could reasonably be expected to:

i. result in financial loss to,


ii. prejudice the competitive position of, or
iii. interfere with the contractual or other negotiation of,

the Government of Alberta or a public body.

• Section 25(l)(e)(i) — Financial Loss

In my opinion, the Public Body has provided reasonable grounds to demonstrate that
disclosure of property list would result in direct monetary loss to the Public Body. A
property owner, on learning that their land may be acquired by the Public Body for
the YHT project, may choose to seek a sale price higher than the fair market value, or
choose to wait for the property to be expropriated. In the latter situation, the Public
body would have to pay the fair market value of the land, as vell as a number of other
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costs as provided for under the Expropriation Act. In both scenarios, the Public Body
would incur additional financial costs, which harms its economic interests.
Additionally, given the number of properties involved, this would not be an
insubstantial amount. As such, I am satisfied that the Public Body has properly
withheld the disclosure of the list of properties based on section 25(I)(c)(i).

• Section 25(1 )(c)(ii) — Prejudice the Competitive Position

The Public Body argued that “If the need for their (property owners) property
changes in the future, the City and/or the landowner will likely be prejudiced as a
result”. However the Public Body did not elaborate on how the position of Public
Body would be prejudiced. The Public Body did explain how disclosure of the
information may jeopardize the position of the property owners, but that is not a
determinant for the application of section 25(1)(c)(ii). In any event, it is difficult to
conceive there would be another competitor for these properties for the YI-IT
expansion. Therefore, in my opinion, the Public Body failed to justify the application
of section 25(I)(c)(ii) in this case.

• Section 25(1 )(c)(iii) — Interfere with Contract and other Negotiations

The Public Body has provided reasonable arguments on how the release of the
property list may affect a landowner’s approach to the sale of the property to the
Public Body. With the knowledge that their property would be required for the
expansion of the YHT conversion project, the landowner may demand a higher price,
or would pursue the expropriation route rather than through a direct sale. Therefore, I
am satisfied that the Public Body has properly withheld the disclosure of the property
list pursuant to section 25(1)(c)(iii).

Conclusion

In my opinion, the Public Body has properly withheld the list of properties based on
sections 25(1)(c)(i) and 25(1)(c)(iii). Therefore the Public Body is not required to
disclose this information to the Applicant.

I have also determined that the Public Body erred in the application of section 25(I)(c)(ii)
in its decision, but this error would not cause the Public Body to disclose the information.
Under section 25(l)(c), the decision of the Public Body to withhold the information is
sustainable as long as onc of the three criteria is met.

Next steps

If the Applicant believes that my investigation has not resolved his issue(s) he may ask
that the matters proceed to inquiry.

• The Commissioner’s decision to hold an inquiry is discretionary, meaning the


Commissioner may or may not decide to hold an inquiry.

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• My analysis or conclusions will not be used in the inquiry process. The inquiry
process is a new evaluation of the issues. However, the facts from the Applicant
and the Public Body’s submissions for this investigation may be used in the
inquiry process.

• The Applicant will be required to provide a separate submission for the inquiry
process to our Adjudication Unit.

• The Commissioner would consider submissions of both parties and then decide on
questions of fact and law independent of this investigation process.

The mediation/investigation phase of this file will conclude on March 22’”. 2018. If the
Applicant believes that the matter is still not settled or resolved and he wishes to request
an inquiry, please ensure to do so by this date. If the Applicant wants to know whether
the redactions made by the Public Body were appropriate he must say so in the request
for inquiry.

Failure to submit a request for inquiry by this date may require the Applicant to provide
an explanation to the Commissioner. It will be at the Commissioner’s discretion to accept
the request for inquiry.

The request for inquiry form can be found at our website at:
hups://www.oipc.ab.ca’media/470 I 20/FonTi Inquiry Request March20 I .pdf.

Information on the inquiry process can be found at:


https://wwwoipc.ab.calrncdia/604263/practice note adjudication preparinz for an mg
uirv 20l2.pdf and also at:
https://www.oipc.ab.ca/media/383682/practicenote adjudication inquiry procedures ma
v201 2.pdf.

If you have any questions, I can be reached at 780-619-6751 to discuss the above.

Yours truly,

Tom Hong
Contract Senior Information and Privacy Manager

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