With the rise of technology comes a breadth of knowledge and information readily available to the public. However, the start of 2024 has brought the Supreme Court of Canada’s ruling in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4, which set aside the decision of the Information and Privacy Commissioner of Ontario (“IPC”), a decision which had been affirmed by both the Divisional Court and the Court of Appeal for Ontario. In this decision, it was held that in certain circumstances the confidentiality of the executive outweighs the public’s right to information.
Background
This decision arose from a CBC journalist’s request to access the 23 letters that the Premier of Ontario had delivered to each of his ministers shortly after forming the government in 2018. These letters are commonly referred to as “mandate letters” and they set out the Premier’s views on policy priorities. The Cabinet Office declined the journalist’s request, claiming that the letters were exempt from disclosure under s. 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act (“FIPPA”). This section protects the confidentiality of records that would reveal Cabinet deliberations. More specifically, it outlines:
Cabinet Records
12 (1) A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including,
(a) an agenda, minute or other record of the deliberations or decisions of the Executive Council or its committees;
(b) a record containing policy options or recommendations submitted, or prepared for submission, to the Executive Council or its committees;
(c) a record that does not contain policy options or recommendations referred to in clause (b) and that does contain background explanations or analyses of problems submitted, or prepared for submission, to the Executive Council or its committees for their consideration in making decisions, before those decisions are made and implemented;
(d) a record used for or reflecting consultation among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(e) a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committees, or are the subject of consultations among ministers relating to government decisions or the formulation of government policy; and
(f) draft legislation or regulations. R.S.O. 1990, c. F.31, s. 12 (1).
The CBC appealed this denial to the IPC. The Commissioner found that the letters were not exempt under s. 12(1) and ordered their disclosure. On judicial review, the Ontario Divisional Court (2020 ONSC 5085) found that the IPC’s decision was reasonable and the majority of the Ontario Court of Appeal (2022 ONCA 74) agreed.
Supreme Court’s Decision
The majority decision was written by Justice Karakatsanis for Wagner C.J., Rowe, Martin, Jamal and O’Bonsawin. Justice Karakatsanis reviewed the IPC’s decision on a standard of reasonableness, which had been argued in the lower courts. She noted that in this case, “the same conclusion would follow regardless of whether the standard of review was correctness or reasonableness.”
This decision dealt with a key issue that is prevalent in many aspects of our society – that the purpose of Freedom of Information legislation is to strike a balance between the right to information and the need for confidentiality. This balancing was the key issue on appeal.
Justice Karakatsanis noted that without adequate knowledge, the public cannot hold the government accountable nor meaningfully contribute to the decision-making process. The right to information can be said to assist in making the government more “effective, responsive and accountable.” Conversely, the government also requires “spheres of confidentially” to function effectively. In fact, it has been determined that Cabinet secrecy is essential to good government because it allows Cabinet to have “deliberative candor, ministerial solidarity, and governmental efficiency by protecting Cabinet’s deliberations.”
In her analysis of the IPC’s decision, Justice Karakatsanis found that the Commissioner’s decision was unreasonable as it failed to meaningfully engage with the legal and factual context necessary for s. 12(1). She noted that the letters should have been considered to reflect the views of the Premier and be considered part of Cabinet’s decision-making process.
The decision sheds light on the factors that needed to be addressed when considering s. 12(1). The first is the legislative context of FIPPA. In this context, the exemption for Cabinet records is critical in balancing the public’s access to information and the necessary governmental confidentiality. Further, Cabinet confidentiality is protected as a matter of constitutional convention. Justice Karakatsanis outlined that the confidentiality of Cabinet deliberations is key to a responsible government as it enables collective ministerial responsibility. The confidentiality of deliberations allows ministers to be able to speak freely without fear of public scrutiny. Without the fear of public scrutiny existing, it follows that more lively debate can occur and better policy decisions can be made. This concept assists in supporting effective government. Justice Karakatsanis was critical that the Commissioner did not engage in the analysis regarding the core purpose of Cabinet secrecy, which is that it promotes the efficiency of the collective decision-making process.
Notably, the Commissioner failed to consider the broad legal and factual context, and as such, applied s. 12(1) too narrowly. Justice Karakatsanis opined that the IPC ought to have considered that the fundamental focus of deliberative secrecy is effective government. Had the Commissioner considered s. 12(1) more broadly, then it may have been considered that Cabinet secrecy assists in preserving the confidentiality of deliberations until a final decision is made. Further, while written “outcomes” is not specifically outlined in s. 12(1), the context analysis requires considering that confidentiality also includes how and when to announce policy priorities.
The decision provides guidance that the deliberative process of the Cabinet should not be limited to discussions within Cabinet meetings. Instead, it can include ongoing deliberations including a re-evaluation of priorities and the solicitation and rejection of advice. It was determined that it was unreasonable to require that the letters be linked to actual Cabinet deliberations at a specific Cabinet meeting. As a point of clarification, Justice Karakatsanis noted that there is no basis to separate the Premier’s role in the deliberation process from the rest of Cabinet.
Justice Karakatsanis concluded that the IPC failed to give meaningful weight to the legal and factual context, including traditions and constitutional conventions concerning Cabinet confidentiality, the role of the Premier, and the fluid nature of the Cabinet decision-making process.
Justice Côté provided separate reasons for her decision. While she agreed with the interpretation of s. 12(1) of the FIPPA, she disagreed with the statement that the “same conclusion would follow regardless of whether the standard of review is correctness or reasonableness.” Instead, she believed that the standard of review must be correctness, as it allows the reviewing court to consider the decision based on how it would have decided the matter itself. As she believed that “the scope of Cabinet privilege is a question of central importance to the legal system as a whole that requires a final and determinate answer”, her reasons were based on a standard of correctness review. She ultimately agreed that the Commissioner’s decision ought to be set aside. This partial dissent provides a potential avenue for uncertainty in how decisions like this may be approached in the future after the appellate level.
Key Takeaways
The key takeaway from this case is that the balance between the public’s need to know and the confidentiality of information continues to be a live issue. Justice Karakatsanis noted that FIPPA contemplates that, “where engaged, other weighty public interests – whether national security, personal privacy, or the confidentiality of Cabinet deliberations – are important enough to outweigh the public’s interest in access to information.” While the issue in this case was relatively narrow, Justice Karakatsanis’s comment shows that this decision has implications for many other aspects of privacy. It will be interesting to see how this decision will be applied in future decisions, particularly given the divergence of opinion in the appropriate standard of review. With the increasing amount of case law regarding privacy and technology, only time will tell how this analysis will impact the weighing of privacy, compared to the public’s access to information.
