Supreme Court of Canada: Limits on Government Disclosure Include Policy Options

On Friday, the Supreme Court of Canada (“SCC”) issued a unanimous decision in John Doe v. Ontario (Finance),2014 SCC 36that outlines the parameters on the ability of the public to access information under Ontario’s Freedom of Information and Protection of Privacy Act (“FIPPA”) that is prepared for the purposes of informing the deliberative processes of government bodies.

In sheltering draft policy options from public access by fitting it within an exemption for “advice or recommendations” prepared for a public institution, Canada’s highest court provided helpful discussion on where the presumption for public right of access to government information will butt up against the boundaries of the goal of preserving space for public servants or consultants to produce “full, free and frank advice”.

Access Request for Documents Containing Policy Options

Following amendments to the Ontario Corporations Tax Act R.S.O. 1990, c. C. 40 to eliminate a loophole for tax havens, a request for the disclosure of records related to considerations of the effective date and retroactive application of the amendments was made to the Ministry of Finance and the Ministry of Revenue. Responsive records included draft versions of a paper that formed part of the briefings of the Minister, Deputy Minister, Assistant Deputy Minister of Finance and the Office of Budget and Taxation, and discussed when the amendments should take effect, including express statements regarding which options were not recommended.

Procedural History

In denying access to the records, the Ministry of Finance relied on s. 13(1) of FIPPA, which allows the government to refuse disclosure of a record that would reveal “advice or recommendations” prepared for a public institution.

Access was subsequently ordered by an Adjudicator in the Office of the Information and Privacy Commissioner of Ontario (“IPC”). This was based largely on the consideration that (i) the content of the records did not reveal a suggested course of action that will ultimately be accepted or rejected by the person being advised, and (ii) there was no clear evidence that the documents were communicated to the person being advised; the lack of a final version suggested that the information was not actually used in the decision-making process.

The matter wound its way up through the courts, where the Ontario Court of Appeal found the disclosure order unreasonable, allowed the appeal, and remitted the matter to the IPC.

Supreme Court of Canada: “Advice” is not “Recommendations” and Communication Not Required

The SCC held that:

(i) the IPC Adjudicator’s consideration that the information must reveal a course of action only applies to “recommendations”. “Advice” has a distinct and broader meaning than “recommendation” (inclusion of both words in the exemption would be redundant) and includes discussion of policy options (which would include a list of alternative courses of action relating to a decision to be made). Also,

(ii) a record does not need to be communicated in order to be exempted from disclosure. To only protect the final version of a document, without also including drafts that form part of the deliberative process, would offer only an “illusory” protection from disclosure.

Limitations on Rights of Access

The SCC decision clarifies the extent to which deliberative processes that form part of the government’s policy development will be permitted to be sheltered from public access in Ontario, and limits the extent to which requests by media, public interest groups, and other interested parties seeking to peek into the inner workings of these processes will be allowed. Although this decision relates specifically to Ontario’s FIPPA, the interpretation of similar provisions in other provinces will likely be influenced by the SCC’s considerations.

In arriving at its decision, the SCC embarked on a consideration of the balancing of the right of access to information with the protection of other interest that would be adversely affected by disclosure of the information. FIPPA is centred on a presumption of granting access to government information. Exemptions must be limited and specific. In interpreting the scope of “advice”, the SCC measured the competing interests of a transparent government with the goal of maintaining government confidentiality to preserve an effective public service. The SCC considered the ability for Ontario public servants to be able to be candid in their internal evaluations without concern that their deliberations would be cast under the microscope of public scrutiny. Information that contains a range of policy options and is not required to be communicated to the decision-maker invokes the exemption provision, and strikes the appropriate balance of interests.

It is useful to mention that while the SCC decision will allow the Ontario government to shield greater amounts of information under the s.13(1) exemption, this exemption also has built in exceptions under s. 13(2) that reflect the legislative intent to restrict from disclosure limited information only. Government bodies cannot shield from disclosure “advice or recommendations” when they are contained in information mandated under s.13(2). Section 13(2) includes advice or recommendations in final plans to establish or change a program as well as in reasons supporting a final decision based on an exercise of discretionary power, among other exemptions. And of course, to the extent that there is public interest in the disclosure of the information that overrides the exemption, disclosure would be required.

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