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All Talk, All Substance: Can FIPPA’s Sphere of Confidentiality Shield Government Records from Disclosure?

7 minute read

The case of Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) is a recent decision of the Court of Appeal for Ontario dealing with what happens when a journalist makes a request for the public disclosure of 23 mandate letters written by the Premier to Ontario’s Cabinet ministers.

In a previous blog, we explored the majority decision, 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 those records from public disclosure.

The Dissent

The purpose of the exemption contained in s. 12(1) of FIPPA is to establish a robust and protective sphere of confidentiality within which Cabinet can function effectively. Accordingly, Justice Lauwers had several concerns with the majority’s decision. He found that the IPC’s interpretation of s. 12(1) – affirmed by the majority – breached, eroded, and undermined this sphere of confidentiality.[1]

The Context of FIPPA

In reaching his conclusion, Justice Lauwers considered how the policy work underpinning the creation of FIPPA was largely done by the Commission on Freedom of Information and Individual Privacy, which produced the Williams Report.[2] This report was sensitive to the political realities of the government and how access to information should function. It recognized the tension between the public interest in open government and the public interest in effective government, the latter of which requires the preservation of confidentiality and the anonymity of public servants.[3] The disclosure of any of the records listed under s. 12(1) would not only have the effect of disclosing the nature of Cabinet discussions, but also information attributed to specific Cabinet ministers.[4]

To Justice Lauwers, the consequences of disclosing these records topple several of the building blocks that are essential for Cabinet to function as an effective political body. Firstly, Cabinet members need to be free to communicate with complete candour; the Supreme Court of Canada has previously noted that “Cabinet could not carry out its policy-making and policy-vetting responsibilities if its members were inhibited in their debate by the prospect of public disclosure.”[5] Secondly, ministers must also collectively show solidarity when Cabinet decisions are made; they could not credibly offer public support for policy decisions they opposed in Cabinet deliberations were that opposition to become publicly known.[6] Lastly, certain Cabinet records must be blanketed in confidentiality; this allows the ministers to have frank deliberations and offer dissenting opinions in Cabinet meetings while preserving the collective public-facing support for Cabinet decisions.[7] These building blocks comprise the sphere of protection that should be afforded to Cabinet’s records that qualify under the mandatory and absolute nature of the s. 12(1) exemption so that policy can be freely debated and developed.[8]

Interpreting Section 12(1)

Justice Lauwers was critical of the IPC’s expansive approach to s. 12(1) of FIPPA, which found that the listed records in subparagraphs (a) to (f) would not necessarily be caught by the opening words of the section, and so these subparagraphs were meant to expand the scope of the general exemption of records from disclosure.[9] Furthermore, he took issue with the IPC’s position that only communications which reveal Cabinet’s deliberative process and the substance of its formulation of government policies would be protected from disclosure.[10]

Instead, his dissent supported an illustrative approach where subsections (a) to (f) of s. 12(1) illustrated the types of records that, if disclosed, would reveal the substance of Cabinet’s deliberations.[11] He found that this approach was more aligned with the purpose of s. 12(1), which is to establish a robust and protective sphere of confidentiality within which Cabinet can function effectively.[12] The Supreme Court of Canada has previously held that certain government functions require privacy and are incompatible with accessing and publicly disclosing certain records; disclosing certain records would impact the proper and intended purpose of government institutions such as the Cabinet.[13] The thoughts and deliberations of the Premier in his role as the head of Cabinet cannot be separated from the deliberations of Cabinet as a whole, so the 23 mandate letters should be considered part of Cabinet’s policy deliberations and thus fully protected from disclosure by s. 12(1).[14]

Is the IPC’s Decision Compatible with s. 12(1)?

Justice Lauwers found that there was a glaring inconsistency in the IPC’s decision to order the disclosure of the 23 mandate letters. The IPC’s understanding of s. 12(1) requires the party claiming the disclosure exemption to disclose the records in question to some extent in order to demonstrate an entitlement to protection from disclosure.[15] He found this to be inherently contradictory because the IPC and/or the courts would have to engage in a deconstructive analysis of every record in question to identify evidence that establishes a link between the content of the record and the substance of Cabinet deliberations in order to earn protection from public disclosure.[16]

Conclusion

Justice Lauwers’ dissent indicates that the considerably heightened test put forth by the IPC, which would only bar public disclosure if doing so would permit inferences to be drawn concerning actual deliberations at a specific Cabinet meeting, is inconsistent with the Act and plainly unreasonable.[17] He found that the substance of deliberations captured by the disclosure exemption under s. 12(1) of FIPPA is broad and inclusive of the topics, subject matter, and body of information Cabinet discusses in addition to any actual deliberations.[18] The subject matter of the Premier’s 23 mandate letters would be exempted from public disclosure within this understanding of s. 12(1). Justice Lauwer’s approach avoids the slippery slope of an intrusive incursion into Cabinet records to parse out the specific details needed to decide whether they qualify for a very narrow scope of protection, just to avoid publicly disclosing those same details.[19]

Given the public nature of the issue and Justice Lauwers’ strong dissent, leave to appeal to the Supreme Court may be sought and may even be granted. Stay tuned!

[1] para 93

[2] para 111

[3] para 133

[4] para 136

[5] para 129

[6] para 130

[7] para 131

[8] para 150

[9] para

[10]

[11] para 157

[12] para 158

[13] para 163

[14] paras 170, 184

[15] para 190

[16] para 198

[17] paras 195, 209

[18] para 208

[19] para 209

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