Ontario Hydro Should be Subject to the Freedom of Information Act

Feb 22 1999

The Canadian Environmental Law Association (CELA) is a public interest group founded in 1970 to use and improve laws to protect the environment and conserve natural resources. Funded as a community legal clinic specializing in environmental law, CELA represents individuals and citizens' groups before trial and appellate courts and administrative tribunals on a wide variety of environmental issues. In addition to environmental litigation, CELA undertakes public education, community organization, and law reform activities. CELA's general interest mandate includes matters pertaining to public access to decision making and ensuring the transparency and accountability of government decision making.A. The Issue At Hand Through Bill 35, Ontario Hydro has been broken up into separate new corporations. The effect of this break-up means that two of the new companies, the Ontario Electricity Generation Corporation (which has its goals to generate electricity) and the Ontario Electric Services Corporation (which has its goals to deliver energy) will be exempt from provincial legislation, the Freedom of Information and Protection of Privacy Act, that provides public access to information. B. What is the concern? The failure to include the two new Ontario Hydro corporations, the Ontario Electricity Generation Corporation and the Ontario Electric Services Corporation creates environmental, health and safety risks to Ontarians. The kinds of information that we fear Ontario Hydro will not voluntarily disclose include information about:

  • nuclear emergency preparedness;
  • radioactive spills;
  • equipment malfunctions;
  • safety retrofit decisions;
  • environmental emissions, including heavy metals and radioactive materials;
  • results of industry peer reviews and safety audits;
  • environmental emissions from the coal plants;
  • environmental assessment records; and 
  • safety communications with other CANDU operators in Canada and around the world.

C. How did this happen? The exemption of the two new corporations is a result of their incorporation under ordinary corporate legislation, the Business Corporations Act. However, as the Information and Privacy Commissioner of Ontario pointed out in her submission to the Standing Committee on Resources Development last August, the two new Ontario Hydro corporations are not ordinary private business corporations. The shares will be owned by the Crown in right of Ontario. The public continues to guarantee Ontario Hydro's accumulated debt. More importantly, the consequences of safety, health and environmental problems at the nuclear, coal and hydro plants, and from the transmission system would be borne by the Ontario public. D. Examples of FOI requests

  • The fear that Ontario Hydro will not voluntarily disclose the kind of information just described is well founded.
  • In 1998, Ontario Hydro refused to release test results regarding levels of tritium being emitted to groundwater at the Bruce Nuclear Power Development Used Fuel Dry Storage Project site. The Assistant Commissioner had to order that Ontario Hydro provide disclosure to the ratepayers association that was concerned with environmental and public health issues relating to the site. (Order P-1562, May 11, 1998, T. Mitchinson, Assistant Commissioner)
  • In 1998, Ontario Hydro responded to a request for records relating to a report entitled "Metal Discharges from the Ontario Hydro Pickering Nuclear Generating Sation" by stating that it had no responsive records. The requester appealed Hydro's decision, claiming that the search was inadequate. During mediation conducted by the Office of the Ontario Information and Privacy Commissioner, Ontario Hydro conducted several more searches and located a large number of additional responsive records. (Order P-1574, May 29, 1998, T. Mitchinson, Assistant Commissioner)
  • In 1998, Ontario Hydro provided partial access to information requested by a member of the media and the Commissioner's office had to adjudicate the request for the balance of a report relating to corrosion. AECL objected to disclosure of parts of this report. The Assistant Commissioner provided partial further access, but upheld some of AECL's objections and Hydro's decision to withhold other parts of the decision. This example demonstrates that the Freedom of Information and Protection of Privacy legislation already provides for consideration of concerns of commercial competitiveness. It is not necessary to exclude the Ontario Hydro corporations from the application of the Act in order to deal with these concerns. (Order P-1597, July 16, 1998, T. Mitchinson, Assistant Commissioner)
  • In 1996, three judges of the Ontario Divisional Court dismissed a judicial review application by Ontario Hydro when Ontario Hydro attempted to overturn a decision by the Information and Privacy Commissioner granting access to the results of a peer evaluation of the nuclear program. The Court quoted the Commissioner's comments that the results of the peer evaluation program should be disclosed to "the paying public whose concerns about nuclear safety the program was designed to allay". (Ontario Court of Justice, Divisional Court, December 3, 1996, O'Leary, Corbett and Marchand JJ., upholding decision of Assistant Commissioner Tom Mitchinson, Order P-1190, May 27, 1996.)
  • In 1995, Assistant Commissioner Irwin Glasberg ruled on an application by a member of a public interest group (Energy Probe Research Foundation) seeking access to documents concerning nuclear emergency planning in Ontario. Ontario Hydro had located 92 pages of records and released 45 pages but refused to release 47 pages of relevant records. The Commissioner ordered further disclosure, and but for cabinet confidentiality provisions under the Act, would have ordered additional release of information. He said in his reasons,  "...I believe that the subject of emergency preparedness is a matter of considerable importance to the general public. To understand its significance, one need only reflect on the nuclear catastrophe at Chernobyl and the recent earthquake in Kobe, Japan. In my view, the issues surrounding the province's ability to prepare for a nuclear emergency are quintessentially those which should be the subject of informed public debate. In order for such discussions to take place, it is essential that the government's decision making process be open and transparent."

(Order P-956, July 19, 1995, Irwin Glasberg, Assistant Commissioner)

  • In 1999, Ontario Hydro refused to give Nuclear Awareness Project information about future power needs pertaining to restarting Pickering A. Nuclear Awareness Project requested a copy of the Electricity Supply Adequacy Review (ESAR) from Ontario Hydro in January 1999. The ESAR was noted in an internal Ontario Hydro Newsletter ("Nuclear Update" November 1998) as having concluded that: "the province will need additional sources of electricity beginning in the winter of 2000/2001 and that bringing the Pickering A units [4 nuclear reactors] back into service is the most economic option for meeting the growing demand." Ontario Hydro declined to release any financial details. Nuclear Awareness Project is appealing the Ontario Hydro decision to withhold this information. This case reveals that existing legislation allows Ontario Hydro and its successor companies to 'protect their financial interests' under a competitive electricity market, and that further protection with a blanket exemption from the legislation is not needed.
  • Nuclear Awareness Project requested information about Ontario Hydro nuclear station compliance with a new standard (CSA N293-95) for fire protection at CANDU reactors under Access to Information legislation in January 1997. Information on this topic was being sought for use in a relicensing intervention before the Atomic Energy Control Board (AECB). Ontario Hydro replied with confirmation that they were considering whether or not the new CSA standard would be applied to their existing nuclear stations, and confirmed that silicone foam was installed as fire barrier material in all nuclear stations in Ontario. Ontario Hydro stated in their response that: "No record exists of inspections carried out at nuclear stations to verify the effective installation of silicone foam as fire stops for fire barrier penetration." The use of silicone foam and other potentially flammable fire stop materials at nuclear stations has become a key issue in the relicensing of the Pickering nuclear plant. The AECB will be making a decision about this issue on March 25 during relicensing of the Pickering nuclear station. This case reveals that crucial nuclear safety issues may remain unresolved without the public scrutiny afforded by the Access to Information legislation. (Further information about this and other examples of utilizing access to information legislation by Nuclear Awareness Project is included in the Statement from Nuclear Awareness Project that we have distributed today.)
  • In 1992, former Commissioner Tom Wright considered an appeal arising from Ontario Hydro's refusal to disclose documents from the Senior Ontario Hydro / AECL Technical Information Committee to an appellant representing a group active in the area of nuclear energy issues (Energy Probe). In ordering disclosure, Commissioner Wright noted that the Freedom of Information legislation was intended to change the climate in which institutions operate. Commissioner Wright noted that pursuant to the practices of Ontario Hydro and AECL, public access to information pertaining to nuclear safety "is virtually non-existent". He said,  "In my view, there is a need for all members of the public to know that any safety issues related to the use of nuclear energy which may exist are being properly addressed by the institution and others involved in the nuclear industry...In the case of nuclear energy, perhaps unlike any other area, the potential consequences of inaction are enormous...I believe that the institution, with the assistance and participation of others, has been entrusted with the task of protecting the safety of all members of the public. Accordingly, certain information, almost by its very nature, should generally be publicly available. In view of the above, it is my opinion that there is a compelling public interest in the disclosure of nuclear safety related information."

(Order P-270, February 11, 1992, Tom Wright, Commissioner)

  • In August, 1998, Commissioner Ann Cavoukian made a submission to the Standing Committee on Resources Development regarding the Energy Competition Act, Bill 35, recommending that: "The Ontario Electricity Generation Corporation, the Ontario Electric Services Corporation and any other body in the electricity sector that is majority owned by the provincial or a municipal government should be subject to the provincial or the municipal Freedom of Information and Protection of Privacy Acts ."

She stated in her brief, that, "Unless access rights are conferred in statute, the public, energy awareness groups and the media can not be assured that they will be granted access to this information." E. Safety Culture issue A lack of openness and transparency is especially worrying with respect to the nuclear plants. A culture that lacks openness, public oversight, and resists public criticism is contradictory to the safety culture that is absolutely requisite for safe operation of nuclear plants in particular. A major study of the underlying causes of the worst nuclear accidents around the world found that the single most important cause of these accidents was the lack of a safety culture at the plants. Major international peer reviews of Ontario Hydro's operations in 1993 and 1997 expressed grave concern about Ontario Hydro's safety culture. The public of Ontario should not tolerate a situation in which the new corporations running Ontario Hydro are exempt from disclosure to the public of important health, safety, emergency and environmental information. F. The Growing Erosion of Public Rights The exemption of these corporations from access to information laws signals a troubling trend. It should be recalled that with the establishment of the Technical Standards and Safety Authority (TSSA), vital parts of governmental agencies have in effect been privatized and immunized from public scrutiny. The TSSA is now the regulatory authority for elevators, amusements, boilers and pressure vessels (including those at nuclear facilities), fuel handling and others. Like the two new electricity corporations, the assess to information legislation does not apply to the TSSA. G. CELA's response: 1. To call on government to immediately commit to ensuring that the two new Ontario Hydro corporations will be subject to the Freedom of Information legislation before April 1, 1999. To that end, we have sent a letter today to the Minister of Energy asking for that immediate confirmation. 2. A Freedom of Information request was sent today to the Ministry of Energy, asking for any documents that explain why the new Ontario Hydro corporations were not subjected to Ontario's Freedom of Information legislation. - 30 -For more information:Paul Muldoon, Executive Director, and Theresa McClenaghan, Counsel, Canadian Environmental Law Association, Tel: 416-960-2284 Irene Kock, Director,Nuclear Awareness Project, Tel: 905-852-0571