The Information and Privacy Commissioner Ontario (IPC) has rejected the Ontario Securities Commission’s (OSC) request to reconsider a recent decision that ordered the regulator to disclose certain records being sought in connection with the policy debate over short-selling activity.
Last month, the IPC issued a decision that largely upheld the OSC’s decision to deny access to certain records involving research into failed trades, and policy discussions about potential regulatory action to deal with abusive short selling.
According to that decision, the request for those records came from a lawyer that’s working with an advocacy group for issuers that, among other things, sought information about the securities dealers involved in short-selling activity, along with emails that included discussions between regulators about policy issues involving activist short-selling.
While the IPC largely sided with the OSC, denying access to certain records, it also ruled that one full record, and parts of others, should be disclosed by the commission as they only contained factual information, and not privileged policy discussions, or data on dealers that required confidentiality.
In the wake of that ruling, the OSC requested that the IPC reconsider its decision, citing a possible administrative error in the order about the information that the regulator is required to disclose.
“The OSC has asked for reconsideration … on the grounds that, I inadvertently ordered disclosed certain information which should have been found to be exempt.” noted adjudicator Jonathan Batty in his decision.
After an initial review of that request, the IPC stayed its original order, pending a final ruling.
Now, Batty has rejected the OSC’s request, finding that it “does not establish the ground for reconsideration.”
The IPC’s decisions are final, the decision noted — and can only be reconsidered if there’s a fundamental defect in the adjudication process, a jurisdictional defect in the decision, or a clerical error in the decision.
“[T]he reconsideration process… is not intended to provide parties with a forum to re-argue their cases,” it said.
In this case, the IPC said that the OSC argued that a record it was ordered to disclose should be excluded, as it represents both policy advice and a recommendation … from an OSC staff member to management in response to a question from an external organization.
The adjudicator disagreed, saying that the record didn’t qualify as advice or recommendations, and isn’t exempt from disclosure. Neither is its inclusion the result of a clerical error, he said.
“I have also considered whether the OSC’s reconsideration request establishes any of the other grounds … for a reconsideration … and find that it does not,” it said in dismissing the regulator’s request.