Refinery wants risks kept quiet
Judge reserves his decision on ‘worst-case scenario’ report
Consumers’ Co-operative Refineries Ltd. (CCRL) is urging a judge to bar public release of a report described by its lawyer as an outline of what could happen in a “worstcase scenario” at the Regina facility.
“What is in the public interest is a separate concept from what the public’s interested in,” the CCRL’s lawyer Jason Mohrbutter told a Regina court recently in arguing against release of any part of the Major Hazards Risk Assessment Report.
Mohrbutter said the report, provided to the City of Regina and the provincial Ministry of Environment, was created to help assess risk. Citing the potential for someone to use it as a “playbook” to cause “catastrophic damage,” Mohrbutter contended, “There’s a greater public interest in not disclosing this.”
But Christine Clifford, a lawyer for the City of Regina, responded that there is indeed a great deal of public interest in such a report, especially given plans for a new residential development north of the refinery and potential safety issues.
She suggested the public could be particularly interested in graphics showing how areas might be affected if that worst-case scenario came to pass.
Court of Queen’s Bench Justice Timothy Keene reserved decision after hearing arguments last week.
The issue landed in court after the province’s Information and Privacy Commissioner recommended partial release of the report in response to access to information requests from the CBC. (The Leader-Post filed similar requests.)
The refinery then appealed, hoping to block the report’s release by the city and province.
Most of the arguments focused on “public interest” because the legislation at issue permits access to third-party information if it’s in the public interest as it relates to public health, public safety or protection of the environment, and if public interest outweighs financial loss, prejudice to the competitive position or interference with negotiations of the third party.
Mohrbutter urged Keene to strike a “careful balance” between public interest and protection of private interests.
The report, prepared in 2012, was generated as a condition of approval by the city and the province for the refinery’s expansion project.
“This was a public decision of (city) council to compel this report,” Clifford said, differentiating this case from others seeking information involving private companies.
But Mohrbutter said CCRL took the opportunity to broaden the report’s scope, so it could be used for other purposes, including insurance.
“These types of reports have never been released before,” he told the court. “It’s extremely confidential information.”
Clifford noted all sides agree some of the information should remain confidential, but argued there is still much that can be released, as it won’t jeopardize CCRL’s business interests.
Mohrbutter said the report contains highly technical information that could easily be misinterpreted by the general public. Release poses a “serious risk of misinformation,” he said, adding that the report presents hypothetical modelling that could easily be taken out of context.
Jeff Brick, the lawyer for the Ministry of Environment, pressed for transparency and suggested Mohrbutter’s argument that the public isn’t “smart enough” to understand the document isn’t an appropriate test to determine access.
He also cautioned against a “message of fear,” saying it was a “slippery slope” to deny release because someone might use the information to do some harm. “We can always hypothesize that something bad could happen,” he said.
Brick suggested Keene simply read the report’s executive summary in making his determination. “The public does have an interest,” he added.
If Keene does order the report’s release, Mohrbutter suggested it should be an updated version rather than the original.
During his submissions, Brick said the case could become the “litmus test” for determining access to information. “This is an important case,” he added.
“It has implications beyond this particular case,” said Brick, adding that regardless of how Keene rules, the issue may well be headed to a higher court.
In order to keep the report confidential until he rules, Keene ordered that a portion of the proceedings be heard in a closed courtroom.
Mohrbutter asked that the public be excluded when he was about to respond to the arguments by the city and province because he wanted to delve in detail into the contents of the report.
These types of reports have never been released before. It’s extremely confidential information.