February 23rd, 2022
The case of Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) is a recent decision of the Ontario Court of Appeal affirming the Information and Privacy Commissioner’s (“IPC”) understanding of the Freedom of Information and Protection of Privacy Act (“FIPPA”) and how the limitations in place to protect sensitive government records may not always shield these records from public disclosure.
Background
In 2018, a journalist from the Canadian Broadcasting Corporation (“CBC”), one of the Respondents, made a request to the Cabinet Office for access to 23 letters sent by the then-newly elected Premier of Ontario to Ontario’s Cabinet ministers.[1] The Cabinet Office refused this request on the grounds that these letters were shielded from disclosure under s. 12 of FIPPA. The Cabinet Office argued that these letters outlined key policy priorities of the newly-elected Premier. Because they allegedly detailed the substance of the Executive Council’s/Cabinet’s recent or future deliberations, they were exempt from disclosure under s. 12(1)(a) of FIPPA.[2]
Section 12(1)(a) of FIPPA indicates that the disclosure of a record can be refused where it would reveal the substance of deliberations of the Executive Council or its committees. Such substance includes an agenda, minutes, or other record of the deliberations or decisions of the Executive Council or its committees.[3]
The Cabinet Office’s refusal was taken by CBC to the IPC of Ontario to hear the matter. The IPC determined that the letters did not fall within the scope of s. 12(1)(a) of FIPPA because they merely contained general statements about the incoming government’s priorities and did not contain enough detail to reveal the substance of Cabinet’s deliberations.[4] Even though the letters had been mentioned in the agenda of a recent Cabinet meeting, the Applicant, the Attorney General of Ontario, had failed to demonstrate that the letters had been tabled for discussion or that disclosing them would reveal the views, opinions, thoughts, or ideas of the ministers.[5]
The Divisional Court dismissed the Applicant’s application for judicial review of the IPC’s order on the basis that the Commissioner had reached a reasonable decision. Justice Penny wrote that the Applicant had not successfully met their burden to prove that the 23 letters in question were connected to the substance of past, present, or future Cabinet deliberations.[6] Since the letters did not reveal anything of substance from Cabinet’s deliberations, the IPC was correct in deciding that the shield provided for under s. 12(1)(a) of FIPPA did not apply.
The Court of Appeal Decision
The court dismissed the appeal. In doing so, it addressed two particularly important issues.
The first was whether the decision of the IPC was consistent with FIPPA. The Applicant argued that the IPC’s interpretation of s. 12(1) was too narrow and restrictive. Instead of finding that the word “including” in the opening words of the section was meant to make clear that the examples of records in subsections (a) to (f) constituted records that, if disclosed, would reveal the substance of deliberations in the Cabinet and/or its committees.[7] The IPC’s decision, however, relied on the understanding that the use of the word “including” merely signalled that the categories of records in subsections (a) to (f) provided an expanded definition of the types of records that could be exempt from disclosure if they were to reveal details of the Cabinet’s deliberations.[8] In other words, the inclusion of these records under subsections (a) to (f) did not automatically make them exempt from disclosure; they were merely a list of records where sensitive information could be found that would lead to their exclusion. The Court of Appeal held that the IPC’s approach to s. 12(1) of FIPPA was consistent with the Act because FIPPA’s general purpose is to provide a right of access to information under the control of institutions in accordance with the principles that necessary exemptions from the right of access should be limited and specific.[9] The Applicant’s position for a blanket exclusion of the records listed under s. 12(1) did not align with this purpose and it did not establish that the IPC’s interpretation of s. 12(1) was unreasonable.[10]
The second issue of note was whether the IPC exercised its authority to grant a right of access based on an erroneous understanding of s. 12(1). The Applicant made the argument that the 23 letters revealed the new Premier’s policy decisions, and would thus reveal the substance of the deliberations leading up to those decisions, as supported by a mention of the letters in a recent Cabinet meeting agenda.[11] However, the Court of Appeal noted that the IPC had previously found that the subject matter of items to be considered by Cabinet would not automatically reveal the substance of Cabinet deliberations unless context or other additional information would permit the reader to draw accurate inferences as to actual deliberations which took place.[12] Not only was there no evidence that the letters were discussed at the meeting in question, but there was also no evidence that the letters would even be tabled for future discussion.[13] The court agreed with the IPC’s conclusion that the disclosure of the policy initiatives in these 23 letters would not provide any insight into the deliberative considerations or consultative process by which the Premier arrived at them.[14] On this ground, the Applicant was also unsuccessful in demonstrating that the IPC had reached an unreasonable decision.
Conclusion
The privacy protections provided under FIPPA are powerful and necessary, but not absolute. The Court of Appeal affirmed that s. 12(1) will only shield Cabinet records from disclosure if they reveal the substance of their deliberations. These 23 letters from the Premier represented the first communication from a then-newly-elected leader to his ministers about his policy priorities and plans of action.[15] However, the mere statement of a policy priority does not itself reveal the deliberations leading up to a policy being designated as a priority to the Premier.[16] These 23 letters were no doubt the result of a deliberation process. Still, they did not shed light on the process or discussions that led to those policy decisions being made.[17] In the absence of evidence showing the Cabinet’s deliberation process or how it formulates policy, there are clear avenues present for government records to be disclosed publicly upon request.
[1] para 2
[2] paras 16, 19
[3] para 8
[4] paras 10-11
[5] para 12
[6] para 13
[7] para 40
[8] para 39
[9] para 52
[10] para 59
[11] paras 60, 62
[12] para 74
[13] para 66
[14] para 73
[15] para 60
[16] para 65
[17] para 76
