Canada: On A Need To Know Basis: When Can The Government Appropriately Withhold Information Pursuant To The "Advice And Recommendations" Exception To The Disclosure Regime

Last Updated: December 3 2012
Article by Helen Burnett

Most Read Contributor in Canada, September 2018

In a case that will have a significant impact on the ability of the public to access information relied upon by governmental decision-makers, the Supreme Court has agreed to determine whether such information is immune from requests for information under the Ontario Freedom of Information and Protection of Privacy Act ("FIPPA"). In Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner), the Court of Appeal adopted a broad definition of the term "advice" within section 13(1) of the FIPPA, resulting in an arguably overbroad exception to the general right of the public to access information in the control of the government. The Supreme Court will thus be required to balance the government's interest in obtaining confidential advice against the public's interest in having access to information.

Background

John Doe made a request pursuant to the FIPPA that the Minister of Finance (the "Minister") provide access to:

[all] records or parts of records in the Ministry of Finance and the Ministry of Revenue which consider the issue of retroactivity and the effective date of the amendments to subsections 2(1) and (2) of the Corporations Tax Act, which was effective May 11, 2005, including all records which provide the reasons for not deciding to make subsections 2(1) and (2) retroactive. (the "Records")

The Minister located the Records but, relying on sections 13(1) and 18(1)(d) of FIPPA, denied John Doe access to the Records on the basis that the disclosure (1) would reveal advice or recommendations to the government; and (2) would reasonably be expected to be injurious to the financial interests of the Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario. The Minister subsequently issued a revised decision where it also relied upon section 15(a) of FIPPA (an exemption to disclosure where disclosure could prejudice intergovernmental relations) to deny John Doe access to the Records.

Decisions Below

The Ontario Information and Privacy Commissioner (the "Commissioner") ordered that the Records be disclosed. With respect to section 13(1), the Commissioner stated that,

The purpose of section 13 is to ensure that persons employed in the public service are able to freely and frankly advise and make recommendations within the deliberative process of government decision-making and policy-making. The exemption also seeks to preserve the decision maker or policy maker's ability to take actions and make decisions without unfair pressure.

The Commissioner explained that in order for information to qualify as "advice or recommendations" it "must suggest a course of action that will ultimately be accepted or rejected by the person being advised". The Commissioner then found that some of the Records contained a recommendation section which would fall within this definition, but that the remainder of the Records were not advice or recommendations. However, because there was no evidence that the information in the Records was communicated to the person being advised, the Commissioner held that none of the information in the Records qualified for the section 13(1) exemption. The Commissioner also held that the section 18(1)(d) and 15(a) exemptions did not apply in the circumstances.

The Minister sought judicial review of the Commissioner's decision relating to section 13(1) of the FIPPA. The Court found that while it is not necessary to prove that a document was actually presented to the ultimate decision maker, it is necessary to demonstrate that the information contained therein was communicated to the decision-maker. The Court then held that it was reasonable for the Commissioner to conclude that such communication had not taken place and thus that the section 13(1) exemption did not apply. The Court determined, however, that it was not reasonable of the Commissioner to require the Minister to produce an un-redacted version of one of the Records where the redacted portions were plainly advice.

The Ontario Court of Appeal allowed the Minister's appeal and remitted the matter back to the Commissioner to reconsider John Doe's application. Rosenberg J.A., for the Court, drew the following conclusions about the meaning of "advice and recommendations":

"Advice and recommendations...must contain more than mere information...The information contained in the records must relate to a suggested course of action that will be ultimately accepted or rejected by its recipient...If the document actually suggests the preferred course of action it may be accurately described as a recommendation. However, advice is also protected, and advice may be no more than material that permits the drawing of inferences with respect to a suggested course of action..."

Rosenberg J.A. determined that the Commissioner made two "fundamental errors" in her decision which made the decision unreasonable. First, section 13(1) does not require the Minister to be able to show that the document went to the ultimate decision maker because it is meant to protect the deliberative process. Thus, "[a]dvice and recommendations in drafts of policy papers that are part of the deliberative process leading to a decision are protected by s. 13(1)."

Second, Rosenberg J.A. found that the Commissioner misinterpreted the jurisprudence as only protecting information that identified a single course of action recommended to the decision maker. Rosenberg J.A. stated:

[s]uch an interpretation would all but denude s. 13(1) of any real meaning and is unreasonable. It is inconsistent with the context in which the [FIPPA] operates, which is to protect a properly functioning democratic process in which the civil service provides advice on a range of options, but is not itself always the decision maker.

...Advice comes in different forms and one form is advice as to the range of possible actions. This permits the decision-maker to make the best and most informed decision. It would be counter-productive and inconsistent with the policy behind s. 13(1) to strip away this form of advice and protect only advice which is entirely directory. Yet this is the effect of the decision of the [Commissioner] and the Divisional Court.

Significance

The Supreme Court's decision will be of particular interest to media and pressure groups who regularly use and rely upon information requests; however, it is more generally significant because it addresses an important issue of access to information and transparency of government.

Although the case specifically addresses section 13(1) of the Ontario Freedom of Information and Protection of Privacy Act, most provinces have similar provisions permitting refusal to disclose information where the disclosure would reveal advice or recommendations. Therefore, the Supreme Court's decision will likely be applicable to, and will influence, disclosure of information decisions across the country.

The Court of Appeal's definition of "advice" is arguably overbroad and may be used to exclude objective information which would otherwise be available to a requester. While the Court of Appeal referred to the need to "protect a properly functioning democratic process", it did not engage in a comprehensive balancing of the government's interest in obtaining confidential advice and the public's interest in having access to information. As stated in section 1(a) of FIPPA, the underlying statutory principles are (1) that information should be available to the public; and (2) that necessary exemptions from the right of access should be limited and specific. Arguably, the Court of Appeal did not adequately consider or address these principles, and the result is an overbroad interpretation of an exception to the disclosure regime.

Case Information

Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner), 2012 CanLII 70216

SCC Docket: 34828

Date of Decision: November 15, 2012

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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