Access to Information and Advice: Interpreting the Freedom of Information and Protection of Privacy Act

In John Doe v Ontario (Finance), 2014 SCC 36 [John Doe], the Supreme Court of Canada (“SCC”) provided a comprehensive explanation of a key provision of the Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31 [FIPPA]. FIPPA is a mechanism that enables individuals to request disclosure of information from government officials (information on making a request can be found here). Within the statute, s. 13(1) permits the denial of a request “where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution” (para 7).

In this case,  s. 13(1) was clarified in two respects:

1) The SCC decided whether records that contain a discussion of policy options constitute “advice” for the purposes of s. 13(1).

2) The SCC decided whether the advice or recommendations under consideration had to be communicated to a decision maker to qualify for s. 13(1) protection.

Facts

John Doe, a tax attorney, requested disclosure of “records or parts of records” that related to an amendment of the Corporations Tax Act, RSO 1990, c C. 40 (para 4). The amendment applied retroactively. The request was made on behalf of taxpayers who were concerned about the impact of the retroactivity on their tax liability. The Minister used s. 13(1) to shield five records from the request. John Doe appealed the decision.

Procedural History

The appeal process began with a hearing before an Adjudicator of the Information and Privacy Commissioner of Ontario (“Adjudicator”). The Adjudicator ordered disclosure of the five documents for two reasons. First, the Adjudicator decided that a record could only qualify as either advice or a recommendation under s. 13(1) if the information suggested a course of action that was ultimately accepted or rejected by the person being advised. The Adjudicator also determined that s. 13(1) required proof that the information in the records was communicated to the person being advised. There was no evidence indicating the satisfaction of either criterion. As a result, s. 13(1) did not apply. The Adjudicator also held that, if applicable, s. 13(1) would only have protected the parts of the records that “indicat[ed] which [policy] option was not preferred” (para 9).

Upon appeal, the Ontario Superior Court of Justice (“OSCJ”) found the Adjudicator’s order reasonable. The Ontario Court of Appeal (“ONCA”) disagreed, “found the IPC Order to be unreasonable” and did not order disclosure of the documents (paras 12-13). The ONCA held that communication was not required under s. 13(1), nor did the provision only apply to “situations where only a single course of action is considered…” (paras 14-15).

The Decision at the Supreme Court of Canada

The SCC upheld the ONCA decision and barred the disclosure of the five documents. The Supreme Court considered each prong of the Adjudicator’s decision separately.

Issue 1: Does a report containing policy options constitute advice under s. 13(1) of the FIPPA?

The SCC found that the records qualified as advice. The SCC reached its decision by defining (to an extent) the terms “recommendations” and “advice” and by assessing the records’ content , FIPPA’s structure, its legislative history and its purpose.

Defining Advice in Section 13(1)

The SCC held that advice and recommendations, in the context of s. 13(1), must be interpreted so that each concept encapsulates different information. In so doing, the SCC treated a previous ONCA decision, Ontario (Minister of Transportation) v Cropley (2005), 202 OAC 379 [Cropley], unfavorably (John Doe, para 24). According to the SCC, Cropley, and the Adjudicator’s interpretation of it, did not create enough space for the words “advice” or “recommendations” to have distinct meanings. This is one of the main reasons the Adjudicator’s decision was deemed unreasonable.

Instead, the SCC accepted that “recommendations” are “material that relates to a suggested course of action that will ultimately be accepted or rejected by the person being advised” (para 23). In regards to “advice,” the SCC did not clearly accept an equivalently specific definition. Rather, the Supreme Court agreed with the decision of Evans J.A. in 3430901 Canada Inc. v Canada (Minister of Industry), [2002] 1 FC 421, and held that advice must be interpreted to have a “broader” meaning than recommendations (John Doe, para 24).

The Records

The records at issue were a group of documents that contained information that can be classified as “policy options.” In general, policy options “are lists of alternative courses of action to be accepted or rejected in relation to a decision that is to be made” (para 26). They are “an evaluative analysis as opposed to objective information” (para 26).

In this case, the Supreme Court described the documents as presenting “both an express recommendation against some options and advice regarding all the options” (para 47). A small part of each document contained recommendations regarding preferred actions, and “the remaining information … [set] forth considerations to take into account by the decision maker in making the decision” (para 47).

The Structure of Section 13

Section 13(1) is subject to both ss. (2) and ss. (3). Section 13(2) contains specific categories of records that cannot be protected by s. 13(1). The SCC found that s. 13(2) described two general categories of records: those that contain generally objective information (subsections (a)-(d)), and specific types of records that could contain advice and recommendations (subsections (e)-(l)).

Section 13(2) was significant, according to the Supreme Court, because it implied that the legislature intended advice to have a broad enough meaning to include the sorts of records listed within the subsection; otherwise, there would be no need to exclude them from 13(1)’s purview. The breadth of the documents included under s. 13(2), in turn, implied that advice was supposed to have a large enough meaning to encapsulate policy options. Further, by not including policy options under s. 13(2), the legislature, according to the SCC, therefore intended such documents to fall within the protective scope of s. 13(1). Section 13(3) reinforced this point by creating a similar implication.

The Legislative History

In this portion of the decision the SCC held that the Williams Commission Report, a document that sometimes provides information regarding FIPPA, was not authoritative in this case.

The Purpose of FIPPA

This is the final, and most convincing, element of the decision. According to the SCC, FIPPA was created with a “presumption in favour of granting access” (para 41). Such a presumption was incorporated because “[a]n open and democratic society requires public access to government information to enable public debate on the conduct of government institutions” (para 1). FIPPA, a statute that enables access to a wide range of governmental information, plays an integral role in facilitating that debate.

However, that presumption is “rebuttable in a limited number of specific circumstances according to the … exemptions provided for in the Act” (para 1). The presumption is rebuttable because information will sometimes need to remain confidential in order “to preserve an effective and neutral public service [that is able to] provide full, free and frank advice” (para 43). This countervailing consideration reflects a concern that without some degree of guaranteed confidentiality, public servants will censor themselves and their advice will become “less candid and complete” (para 43). Such a result would undermine the government’s ability to “formulate and to justify its policies” (para 44; quoting Evans J. in Canadian Council of Christian Charities v Canada (Minister of Finance), [1994] 4 FC 245). Section 13(1) reflects the legislature’s reaction to this concern.

The SCC determined that defining advice broadly enough to encapsulate policy options, and thus preventing their disclosure, did not offend the legislature’s treatment of those two concerns in FIPPA.

Conclusion of Issue 1

The SCC held that the nature of the records in issue, the breadth of the term advice, the general structure of s. 13, the irrelevance of the Williams Commission Report, and FIPPA’s purpose permitted the finding that policy options were advice for the purposes of s. 13(1). The Supreme Court also held, again contrary to the Adjudicator’s decision, that these records were shielded in their entirety.

Issue 2: Does the advice have to be communicated?

The SCC found that no words in s. 13(1) expressly required any communication to occur. In recognizing that the research process normally involves numerous stages, and that “the applicability of s. 13(1) must be ascertainable” at the time the record is prepared, the Supreme Court held that “[p]rotection from disclosure would indeed be illusory if only a communicated document was protected and not prior drafts” (para 51). As such, s. 13(1) does not only apply to policy options communicated to a decision maker. Instead, policy options, communicated or not, are assured robust protection at all stages of development.

Conclusion

This case, while technical, impacts the public’s ability to oversee the Government of Ontario. While individuals can still rely on the public interest override to access policy options (FIPPA, at s. 23), this case prohibits access, in general, to such documents. One cannot help but marvel at the amount of information this decision renders inaccessible. After all, it seems likely that many of the meaningful documents produced by a governmental department will qualify as a policy option. It is telling that “the access to information statutes of eight other provinces” exempt “policy options” from the protection afforded to the Government of Ontario by this decision (John Doe, at para 40).

Such a loss should not be understated. The ability to inspect the policy options that pertain to any one decision would provide considerable insight into how policies are adopted. While some documents may only reflect the preferences of particular analysts, as opposed to the government in general, it is that trait that makes them so valuable. They would provide insight into the bureaucrats that help make legislation, and what biases, if any, influence the policy making process. Absent extreme circumstances, such insights will now have to be gleaned from other sources. While the SCC probably interpreted the intentions of the legislature correctly, the decision still limits the ability to access information in Ontario.