Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The appellant submitted a request to the Ministry of Finance (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act ) for access to: Any and all information, background material and records relating to the drafting and/or enactment of Sections 1 and 2 of Schedule D to the Tax Credits To Create Jobs Act, 1997 , including, without limiting the generality of the foregoing, any notes, briefs, summaries, minutes, drafts, memoranda, correspondence, policy statements and submissions which relate to said drafting and/or enactment. The Ministry located 37 responsive records and granted access to eight of them in their entirety. The Ministry denied access to the remaining 29 records on the basis of the application of sections 12 (cabinet records), 13 (advice or recommendations) and/or 19 (solicitor-client privilege) of the Act as set out on an index of records that it attached to the decision letter. The appellant appealed the Ministry's decision to deny access to the records. Mediation could not be effected and this appeal was forwarded to adjudication. I sought representations from the Ministry, initially, and sent it a Notice of Inquiry setting out the facts and issues at inquiry. The Ministry submitted representations in response. After reviewing them, I decided to seek representations from the appellant on all of the issues in this appeal, and provided him with a copy of the Notice and the complete representations of the Ministry. The appellant also submitted representations. I subsequently sent the appellant's representations to the Ministry and provided it with an opportunity to reply to them. The Ministry declined to submit representations in reply. RECORDS: Two of the records originate from the Ministry's Legal Services Branch, 18 originate from the Office of the Budget and Taxation and the remaining nine from the Retail Sales Tax Branch. They consist, generally, of memoranda, e-mails, questions and answers and drafts of Position/Briefing papers. In its representations, the Ministry indicates that it withdraws its reliance on the discretionary exemption in section 13(1) for Record 13. Since this is the only exemption claimed for it, Record 13 is no longer at issue and should be disclosed to the appellant. Many of the documents contained in the records at issue are duplicates, at times differing only by date (for example, Records 29, 33 and 34) or by the inclusion of handwritten comments/editing (such as Records 11 and 14). In some cases, e-mails have been duplicated as part of overlapping strings of messages (including Records 15/16 and 19/20). For consistency, my decision with respect to one copy will apply equally to the other copies (unless otherwise specified). PRELIMINARY MATTER: LATE RAISING OF AN ADDITIONAL DISCRETIONARY EXEMPTION In its representations, the Ministry states: In addition to the Records mentioned above in respect of which the Ministry has claimed section 19 of [the Act ], the [Ministry] wishes to claim section 19 of [the Act ] with respect to the sixth paragraph of the document (which begins with the words: "in 1991, (…) the purchaser.") as that part of the document reflects legal advice received by the Ministry in respect of one aspect of the taxation of promotional distributions. On November 6, 2001, the Commissioner's office provided the Ministry with a Confirmation of Appeal, which indicated that an appeal from the Ministry's decision had been received. This Confirmation also indicated that, based on a policy adopted by the Commissioner's office, the Ministry would have 35 days from the date of the confirmation (that is, until December 11, 2001) to raise any new discretionary exemptions not originally claimed in its decision letter. No additional exemptions were raised during this period. Previous orders issued by the Commissioner's office have held that the Commissioner or her delegate has the power to control the manner in which the inquiry process is undertaken. This includes the authority to set time limits for the receipt of representations and to limit the time frame during which an institution can raise new discretionary exemptions not originally cited in its decision letter. The objective of the policy enacted by the Commissioner's office is to provide government organizations with a window of opportunity to raise new discretionary exemptions but not at a stage in the appeal where the integrity of the process is compromised or the interests of the appellant prejudiced. In Order P-658, former Adjudicator Anita Fineberg explained why the prompt identification of discretionary exemptions is necessary to maintain the integrity of the appeal process. She indicated that, unless the scope of the exemptions being claimed is known at an early stage in the proceedings, it will not be possible to effectively seek a mediated settlement of the appeal under section 51 of the Act . Former Adjudicator Fineberg also pointed out that, where a new discretionary exemption is raised after the Notice of Inquiry is issued, it will be necessary to re-notify all parties to an appeal to solicit additional representations on the applicability of the new exemption. The result is that the processing of the appeal will be further delayed. Finally, former Adjudicator Fineberg made the important point that, in many cases, the value of information which is the subject of an access request diminishes with time. In these situations, appellants are particularly prejudiced by delays arising from the late raising of new exemptions. As is evident above, the Ministry claimed the application of section 19 to additional information for the first time in its representations, submitted approximately eight months after the 35-day time frame set out in the Confirmation of Appeal. The Ministry does not provide any representations on why it has waited this long to raise section 19 for this portion of the record or on why I should depart from the policy of this office with respect to this issue. Moreover, although the Ministry has numbered the records (which as noted above, total 29, and comprise approximately 116 pages) it has identified the portion of "a" record only by reference to the "sixth paragraph" beginning with a certain sentence as containing the information that it submits is subject to exemption under section 19. In my view, the Ministry has made no effort to address the late raising of a new discretionary exemption, nor has it made it reasonably possible for me to even identify the information that it seeks to exempt. I find that the Ministry has failed to sufficiently explain why I should depart from the policy of this office regarding the late raising of additional discretionary exemptions and I will not specifically consider the application of section 19 to the portion of them referred to in the Ministry's representations. However, as I indicated above, there is duplication in the records (either the record itself is duplicated or the information contained in one record is clearly taken from another record for which a different exemption has been claimed). Similarly, in some cases, the Ministry has claimed the same exemptions for the duplicated pages, in others it has not addressed the same exemption claims. Where it is obvious on the face of the record that the information is th
Decision Content
NATURE OF THE APPEAL:
The appellant submitted a request to the Ministry of Finance (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act) for access to:
Any and all information, background material and records relating to the drafting and/or enactment of Sections 1 and 2 of Schedule D to the Tax Credits To Create Jobs Act, 1997, including, without limiting the generality of the foregoing, any notes, briefs, summaries, minutes, drafts, memoranda, correspondence, policy statements and submissions which relate to said drafting and/or enactment.
The Ministry located 37 responsive records and granted access to eight of them in their entirety. The Ministry denied access to the remaining 29 records on the basis of the application of sections 12 (cabinet records), 13 (advice or recommendations) and/or 19 (solicitor-client privilege) of the Act as set out on an index of records that it attached to the decision letter.
The appellant appealed the Ministry’s decision to deny access to the records.
Mediation could not be effected and this appeal was forwarded to adjudication. I sought representations from the Ministry, initially, and sent it a Notice of Inquiry setting out the facts and issues at inquiry. The Ministry submitted representations in response. After reviewing them, I decided to seek representations from the appellant on all of the issues in this appeal, and provided him with a copy of the Notice and the complete representations of the Ministry. The appellant also submitted representations. I subsequently sent the appellant’s representations to the Ministry and provided it with an opportunity to reply to them. The Ministry declined to submit representations in reply.
RECORDS:
Two of the records originate from the Ministry’s Legal Services Branch, 18 originate from the Office of the Budget and Taxation and the remaining nine from the Retail Sales Tax Branch. They consist, generally, of memoranda, e-mails, questions and answers and drafts of Position/Briefing papers.
In its representations, the Ministry indicates that it withdraws its reliance on the discretionary exemption in section 13(1) for Record 13. Since this is the only exemption claimed for it, Record 13 is no longer at issue and should be disclosed to the appellant.
Many of the documents contained in the records at issue are duplicates, at times differing only by date (for example, Records 29, 33 and 34) or by the inclusion of handwritten comments/editing (such as Records 11 and 14). In some cases, e-mails have been duplicated as part of overlapping strings of messages (including Records 15/16 and 19/20). For consistency, my decision with respect to one copy will apply equally to the other copies (unless otherwise specified).
PRELIMINARY MATTER:
LATE RAISING OF AN ADDITIONAL DISCRETIONARY EXEMPTION
In its representations, the Ministry states:
In addition to the Records mentioned above in respect of which the Ministry has claimed section 19 of [the Act], the [Ministry] wishes to claim section 19 of [the Act] with respect to the sixth paragraph of the document (which begins with the words: “in 1991, (…) the purchaser.”) as that part of the document reflects legal advice received by the Ministry in respect of one aspect of the taxation of promotional distributions.
On November 6, 2001, the Commissioner's office provided the Ministry with a Confirmation of Appeal, which indicated that an appeal from the Ministry's decision had been received. This Confirmation also indicated that, based on a policy adopted by the Commissioner's office, the Ministry would have 35 days from the date of the confirmation (that is, until December 11, 2001) to raise any new discretionary exemptions not originally claimed in its decision letter. No additional exemptions were raised during this period.
Previous orders issued by the Commissioner's office have held that the Commissioner or her delegate has the power to control the manner in which the inquiry process is undertaken. This includes the authority to set time limits for the receipt of representations and to limit the time frame during which an institution can raise new discretionary exemptions not originally cited in its decision letter.
The objective of the policy enacted by the Commissioner's office is to provide government organizations with a window of opportunity to raise new discretionary exemptions but not at a stage in the appeal where the integrity of the process is compromised or the interests of the appellant prejudiced.
In Order P-658, former Adjudicator Anita Fineberg explained why the prompt identification of discretionary exemptions is necessary to maintain the integrity of the appeal process. She indicated that, unless the scope of the exemptions being claimed is known at an early stage in the proceedings, it will not be possible to effectively seek a mediated settlement of the appeal under section 51 of the Act.
Former Adjudicator Fineberg also pointed out that, where a new discretionary exemption is raised after the Notice of Inquiry is issued, it will be necessary to re-notify all parties to an appeal to solicit additional representations on the applicability of the new exemption. The result is that the processing of the appeal will be further delayed. Finally, former Adjudicator Fineberg made the important point that, in many cases, the value of information which is the subject of an access request diminishes with time. In these situations, appellants are particularly prejudiced by delays arising from the late raising of new exemptions.
As is evident above, the Ministry claimed the application of section 19 to additional information for the first time in its representations, submitted approximately eight months after the 35-day time frame set out in the Confirmation of Appeal. The Ministry does not provide any representations on why it has waited this long to raise section 19 for this portion of the record or on why I should depart from the policy of this office with respect to this issue. Moreover, although the Ministry has numbered the records (which as noted above, total 29, and comprise approximately 116 pages) it has identified the portion of “a” record only by reference to the “sixth paragraph” beginning with a certain sentence as containing the information that it submits is subject to exemption under section 19.
In my view, the Ministry has made no effort to address the late raising of a new discretionary exemption, nor has it made it reasonably possible for me to even identify the information that it seeks to exempt. I find that the Ministry has failed to sufficiently explain why I should depart from the policy of this office regarding the late raising of additional discretionary exemptions and I will not specifically consider the application of section 19 to the portion of them referred to in the Ministry’s representations.
However, as I indicated above, there is duplication in the records (either the record itself is duplicated or the information contained in one record is clearly taken from another record for which a different exemption has been claimed). Similarly, in some cases, the Ministry has claimed the same exemptions for the duplicated pages, in others it has not addressed the same exemption claims. Where it is obvious on the face of the record that the information is the same, as I indicated above, my decision will apply to all duplicated copies. It may well be that the information identified by the Ministry above is contained in one of these duplicated pages and will thus be “caught” in my ultimate decision.
DISCUSSION:
SOLICITOR-CLIENT PRIVILEGE
The Ministry claims the application of the exemption in section 19 to Records 1, 2, 10, 14, 16, 21-24 and 29-35.
Section 19 of the Act reads:
A head may refuse to disclose a record that is subject to solicitor‑client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation
Solicitor-client communication privilege
Previous orders of this office have identified that solicitor-client communication privilege protects direct communications of a confidential nature between a solicitor and client, or their agents or employees, made for the purpose of obtaining professional legal advice. The rationale for this privilege is to ensure that a client may confide in his or her lawyer on a legal matter without reservation (Order P-1551).
The Supreme Court of Canada has described this privilege as follows:
... all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attaching to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship ... (Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 at 618, cited in Order P‑1409)
The privilege has been found to apply to “a continuum of communications” between a solicitor and client:
. . . the test is whether the communication or document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communications and meetings between the solicitor and client ... Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as “please advise me what I should do.” But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context (Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.), cited in Order P-1409).
The appellant does not dispute the Ministry’s general reliance on section 19, but is rather seeking only information that does not specifically relate to the provision of legal advice by the Legal Services Branch. The appellant notes, however, that:
It has recently been confirmed by the Federal Court of Appeal in the case of [Blank v. Canada (Minister of the Environment)], 2001 FCA 374, that “not all communications between solicitor and client are privileged” and that “especially in the case of lawyers employed by government”, advice sought or given may sometimes relate to matters of policy rather than law”. [emphasis in the original]
The appellant takes the position that to the extent that any of the records reflect “things other than the provision of legal advice”, they should be disclosed. The appellant also refers to section 10(2) of the Act and submits that to the extent that the records reflect the provision of legal advice and other advice, the non-exempt portions should be severed and disclosed.
In Blank, which pertains to an access request made under the federal Access to Information Act (the ATA), the Federal Court of Appeal commented on the records at issue and the appellant’s submission with respect to them as follows (at paragraphs 19 and 20):
Almost all of the documents in issue are letters or memoranda representing communications between solicitor and client … Those communications either seek or give legal advice, or represent an integral part of the ongoing dialogue relating generally to the matter of the criminal charges, in which the legal advice is expressly or implicitly referred to.
Counsel for the appellant pointed out that not all communications between solicitor and client are privileged and that, especially in the case of lawyers employed by government, advice sought or given may sometimes relate to matters of policy rather than law. While that is true in theory, in this case I was unable to identify any advice sought or given that could not properly be characterized as legal advice. [my emphasis]
In my view, this decision is not helpful to the appellant as I similarly find that the vast majority of the information contained in the records at issue in this discussion constitutes communications for the purpose of giving or receiving legal advice as contemplated by section 19 and the common law.
In particular:
Records relating to the Budget Bill
Records 1 and 2, which consist of a covering memorandum with a list of Budget items attached, and a “Legislative Decision Document” for the 1997 Budget Bill, respectively, were all prepared by legal counsel. The Ministry indicates that these records were prepared in response to a request by the Deputy Minister and submits that:
[t]hey contain advice as to how certain measures announced in the 1997 Budget are to be implemented as well as a list of outstanding matters that remain to be resolved.
I am satisfied that these records form part of the continuum of communications between the client (in this case, the Deputy Minister) and his solicitor aimed at keeping both informed so that advice may be sought and given as required, as contemplated in Balabel.
Memoranda
Records 10, 14, 21, 29, 30, 31, 32, 33 and 34 contain memoranda between legal counsel and various staff or senior staff of the Ministry or between staff. In some cases, these are covering memoranda attached to other documents, in others, the memoranda stand alone.
On review, I find that a portion of the memorandum in Record 14 either makes reference to or reflects the legal advice that is contained in a record at issue in this discussion, and therefore qualifies for exemption under section 19. Although not claimed by the Ministry, I note that a portion of the memorandum contained in the first two pages of Record 36 (which is a memorandum from the Director, Retail Sales Tax Branch to the Assistant Deputy Minister) re-iterates the legal advice received from legal counsel in other records at issue. In order to obtain a consistent result, I find that this portion of the memorandum also qualifies for exemption under section 19.
In addition, I find that Record 21, which contains a covering memorandum from staff to legal counsel with a draft document attached, when viewed with Record 22 (discussed below), is best described as a request for a review and comment, which, in my view, is in the nature of a request for a legal opinion. I am satisfied that this is a confidential communication between the client and his solicitor made for the purpose of obtaining professional legal advice as contemplated by section 19.
Record 10 contains a covering memorandum from the Assistant Deputy Minister, Tax Division to the Assistant Deputy Minister, Office of Budget and Taxation. Page 3 of Record 36 is a duplicate copy. This memorandum is a communication between two Assistant Deputy Ministers relating to the status of the legislation and the proposed changes to it. I am not persuaded that disclosure of this portion of the record would either disclose or reveal information that is subject to solicitor-client communication privilege. However, Record 10 also contains an Appendix, consisting of four “legal memoranda” prepared by counsel in the Legal Services Branch. The Ministry notes that each of these four documents:
… sets out the facts and relevant agreements and analyzes the applicability of the RST Act to promotional distributions. Various provisions of the RST Act are analyzed in the context of different fact situations and legal advice is provided in respect of the applicability of retail sales tax.
On review, I concur and find that these four attachments to Record 10 fall squarely within the exemption.
I also find that Record 29, Records 30, 31, 32, 33 and 34, in part (which are duplicates of the Appendices to Record 10) all contain legal advice and, in the case of the remaining portion of Record 34, a request for legal advice on legal and policy-related issues such as the interpretation and application of the Retail Sales Tax Act and matters which were being dealt with by the Retail Sales Tax Branch. The memoranda in these records are all captured within the solicitor-client communication privilege continuum.
Position/Briefing papers
The final document in Record 10 is a “Position Paper”. Pages 4-7 of Record 36 contain a duplicate copy of this paper. Record 14 contains a “Briefing Paper”. Pages 2-3 of Record 11 contain a duplicate copy of this paper (with handwritten comments on it, which are not included in the discussion under section 19). These records were prepared by non-legal staff in the Ministry. However, large portions of them refer to or reflect the legal advice that is contained in the other records at issue in these discussions. In my view, disclosure of this information would reveal the legal advice that was provided and should, therefore, be protected under section 19.
The remaining portions of these records do not reveal the legal advice provided by counsel and are, therefore, not exempt under section 19.
Record 34 contains a copy of a Position Paper, which is similar, but not identical to the Position Paper in Record 10. This paper was attached to a memorandum in which the Assistant Deputy Minister – Tax Division requests legal advice from a solicitor in the Legal Services Branch. It is apparent that the advice was being sought with respect to the information contained in the Position Paper, and it therefore forms an integral part of the request. Accordingly, this portion of Record 34 qualifies for exemption under solicitor-client communication privilege.
Pages 4-6 of Record 37 contain a duplicate of Record 34. In the circumstances, I find that this portion of Record 37 also qualifies for exemption under section 19.
E-mails
Records 16, 22, 23, 24 and 35 contain e-mails either between staff and senior staff or between staff and legal counsel.
On review, I find that only a portion of Record 16, which is an e-mail between staff and senior staff, contains references to prior legal advice provided by counsel for the Ministry. I am satisfied that disclosure of this portion of the record would reveal that legal advice and is therefore exempt under section 19.
Record 22 contains legal counsel’s comments and advice regarding the attachment to Record 21 in direct response to the request for same in the covering memorandum to that record (as noted above). I am satisfied that Record 22 is a confidential communication between the client and his solicitor made for the purpose of providing legal advice and as such, falls squarely within the exemption.
Records 23 and 24 contain e-mails exchanged between staff and legal counsel. On review, I am satisfied that they form part of the continuum of communications between legal counsel and the client aimed at keeping both informed as contemplated by Balabel.
Record 35 is a request for a legal opinion regarding a situation relating to a promotional distribution. I am satisfied that this record constitutes a confidential communication between the client and his lawyer made for the purpose of seeking legal advice on a matter with legal implications and thus qualifies for exemption under section 19.
Severance
Section 10(2) of the Act reads:
If an institution receives a request for access to a record that contains information that falls within one of the exemptions under sections 12 to 22 and the head of the institution is not of the opinion that the request is frivolous or vexatious, the head shall disclose as much of the record as can reasonably be severed without disclosing the information that falls under one of the exemptions.
The Court in Blank (referred to by the appellant), commenting on the comparable provision in the ATA, stated (at paragraph 13):
The Minister argues that a record that is subject to solicitor-client privilege is not subject to the severance provision in section 25. I do not agree. Section 25 is said to apply “notwithstanding any other provision of this Act”. If a document contains a communication that is within the scope of the common law solicitor-client privilege and also contains information that is not within the scope of the solicitor-client privilege, the Minister cannot refuse to disclose the latter.
With respect to the severance principle to section 19 of the Act, Senior Adjudicator David Goodis offered the following comments in Order PO-1663:
In Minister of Finance [Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner) (1997), 102 O.A.C. 71], the court (at page 77) stated the following with respect to the application of section 10(2) in the context of the section 19 solicitor-client communication privilege exemption:
It is apparent that the effect of the order under review is to compel the Ministry to disclose what it told its legal advisor to obtain legal advice. In my view, that constitutes a derogation of solicitor‑client privilege and cannot be supported as a acceptable interpretation of s. 19. Once it is established that a record constitutes a communication to legal counsel for advice, it is my view that the communication in its entirety is subject to privilege.
I would hasten to add that this interpretation does not exclude the application of s. 10(2), the severance provision, for there may be records which combine communications to counsel for the purpose of obtaining legal advice with communications for other purposes which are clearly unrelated to legal advice. I would also emphasize that the privilege protects only the communication to legal counsel. If facts communicated to legal counsel are to be found in some other form in the records of the Ministry, those records are not sheltered from disclosure simply because those same facts were disclosed to legal counsel. Similarly, documents authored by third parties and communicated to counsel for the purpose of obtaining legal advice do not gain immunity from disclosure unless the dominant purpose for their preparation was obtaining legal advice: Ontario (Attorney General) v. Hale (1995), 85 O.A.C. 229 (Div. Ct.).
In my view, none of the records claimed to be exempt under section 19 combines communications to or from counsel for the purpose of obtaining legal advice with communications “for other purposes which are clearly unrelated to legal advice”. In addition, neither of the other limitations referred to by the court in Minister of Finance is applicable here. Therefore, I find that the section 10(2) severance provision has no application with respect to Records 2, 5 to 9, and 12 to 18.
With respect to the issue of severance generally, in Order PO-1727, Senior Adjudicator Goodis discussed the principles to be applied in considering whether severance is appropriate:
Where a record contains exempt information, section 10(2) requires a head to disclose as much of the record as can reasonably be severed without disclosing the exempt information. In Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner) (1997), 102 O.A.C. 71, the Divisional Court stated:
I would note, however, that while the Commissioner has taken an excessively aggressive approach with respect to s. 10(2), the Ministry's position that 49 of the 50 documents were subject to Cabinet privilege and that s. 10(2) has no application whatsoever to the records at issue plainly went too far. The Act requires the institution head to disclose what can be severed and it is contemplated that the severance exercise will be conducted by those most familiar with the records. Had the Ministry made an effort to disclose what is severable, it is possible that the request could have been dealt with much more efficiently and much more expeditiously. While the Commissioner's order is, in my view, patently unreasonable, it should not go unmentioned that the situation before this Court was to some extent produced by the unreasonably hard line taken by the Ministry in its response.
In my view, it would not be appropriate to this Court’s function on judicial review to engage in a detailed record‑by‑record review of what should and should not be disclosed. That task should be left to the Commissioner in light of the legal principles enunciated here. Accordingly, I will say no more about precisely what, if anything, must be disclosed from the records at issue here.
I would, however, adopt as a helpful guide to the interpretation of s. 10(2) the following passage from the judgment of Jerome A.C.J. in Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 at 558 interpreting the analogous provision in the Access to Information Act, S.C. 1980‑81‑82‑83, c. 111, sch. I, s. 25:
One of the considerations which influences me is that these statutes do not, in my view, mandate a surgical process whereby disconnected phrases which do not, by themselves, contain exempt information are picked out of otherwise exempt material and released. There are two problems with this kind of procedure. First, the resulting document may be meaningless or misleading as the information it contains is taken totally out of context. Second, even if not technically exempt, the remaining information may provide clues to the content of the deleted portions. Especially when dealing with personal information, in my opinion, it is preferable to delete an entire passage in order to protect the privacy of the individual rather than disclosing certain non‑exempt portions or words.
Indeed, Parliament seems to have intended that severance of exempt and non‑exempt portions be attempted only when the result is a reasonable fulfilment of the purposes of these statutes. Section 25 of the Access to Information Act, which provides for severance, reads:
Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of an institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains any such information or material. [Emphasis added]
Disconnected snippets of releasable information taken from otherwise exempt passages are not, in my view, reasonably severable.
Similarly, in Montana Band of Indians v. Canada (Minister of Indian & Northern Affairs) (1988), 51 D.L.R. (4th) 306 at 320, Jerome A.C.J. stated:
To attempt to comply with s. 25 would result in the release of an entirely blacked‑out document with, at most, two or three lines showing. Without the context of the rest of the statement, such information would be worthless. The effort such severance would require on the part of the department is not proportionate to the quality of access it would provide.
Applying the principles enunciated in these decisions, I have reviewed the records to determine whether they may be severed.
A number of the records at issue in this discussion were prepared by non-legal staff of the Ministry and they contain information other than and in addition to the legal advice referred to in them. In my view, the portions of these records that do not contain or reveal legal advice and that are not privileged communications as a whole cannot be characterized as “disconnected snippets” or “worthless” per se. While possibly not of significant interest to the appellant, they are reasonably severable, subject to my findings below under the remaining exemptions claimed by the Ministry.
Disposition of Records subject to exemption under section 19
As I indicated above, the appellant does not dispute the Ministry’s general reliance on section 19, but is rather seeking only information that does not specifically relate to the provision of legal advice by the Legal Services Branch. In my view, the appellant is essentially asking that I confirm that the records for which section 19 has been claimed do, in fact, qualify for exemption. Having done so, I find that Records 1, 2, 21, 22, 23, 24, 29, 30, 31, 32, 33, 34 and 35 and the portions of Records 10, 11,14, 16, 36 and 37 that qualify for exemption under section 19 should not be disclosed.
ADVICE OR RECOMMENDATIONS
The Ministry claims the application of section 13(1) to Records 10-21, 24-27, 36 and 37. I found above that Records 21 and 24 and portions of Records 10, 11, 14, 36 and 37 are exempt under section 19. In the circumstances, I will direct the following discussion only to the remaining records and parts of records.
Introduction
Section 13(1) reads as follows:
A head may refuse to disclose a record 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.
Previous orders have established that advice and recommendations, for the purposes of section 13(1) must contain more than mere information. To qualify as “advice” or “recommendations”, the information contained in the records must relate to a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process (Orders P-94, P-118, P-883 and PO-1894). Information that would permit the drawing of accurate inferences as to the nature of the actual advice and recommendation given also qualifies for exemption under section 13(1) of the Act (Orders P-1054, P-1619 and MO-1264).
The interpretation of section 13(1) first introduced in Orders 94 and P-118 was applied in Order P-883, upheld by the Divisional Court in Ontario (Ministry of Consumer and Commercial Relations) v. Fineberg (December 21, 1995), Toronto Doc. 220/95, leave to appeal refused [1996] O.J. No. 1838 (C.A.).
In Order 94, former Commissioner Sidney B. Linden commented on the purpose and scope of this exemption. He stated that it “. . . purports to protect the free-flow of advice and recommendations within the deliberative process of government decision-making and policy-making.” Put another way, the purpose of the exemption is to ensure that:
. . . persons employed in the public service are able to advise and make recommendations freely and frankly, and to preserve the head’s ability to take actions and make decisions without unfair pressure [Order 24; PO-1709, upheld on judicial review in Ontario (Minister of Health and Long-Term Care) v. Goodis, [2000] O.J. No. 4944 (Div. Ct.)].
In general, the Ministry submits that:
This exemption may apply where it is evident that the records were prepared by public servants to provide advice to decision makers and policy makers within the institution, even though they are not addressed to a particular individual (See Orders #P-522, P-128). A record may be exempt if it would reveal advice or recommendations by inference even though it is not itself advisory in nature (See Order #P-233). A draft document may be exempt if the institution can establish that the draft contains a suggested course of action which will ultimately be accepted or rejected by the recipient during the deliberative process. A draft form may be exempt in its entirety under this section where it can be shown that its contents would be accepted or rejected during the deliberative process (P-324). (See also Orders #P-278, P-324, P-827). This exemption includes the “response” sections of the Minister’s issue notes. These contain advice from a public servant to the Minister as to how to respond.
The appellant takes the position that section 13(1) should not apply to the records at issue since they “appear to contain recommendations and advice dealing with how the legislation is to apply and how it should be interpreted, rather than actual advice as to a suggested course of action that will ultimately be accepted or rejected by its recipient during a deliberative process”. [emphasis in the original]
I do not agree with the appellant’s interpretation of the “deliberative process”. In my view, the development, interpretation and application of legislation is a significant component of the deliberative decision-making that takes place in government. Accordingly, where the evidence establishes that records contain advice or recommendations relating to this aspect of government decision-making, they will qualify for exemption under section 13(1).
Application of section 13(1) to specific records
Position/Briefing Papers, Proposed Amendments and Questions and Answers
Records 10, 11, 14 and 36 contain duplicate copies of the Position and Briefing Papers. As noted above, substantial portions of these two documents are exempt under section 19. The Ministry makes the following submissions regarding the application of section 13 to the remaining portions:
The Position Paper outlines the issues related to the taxation of promotional distributions and provides recommendations on how to deal with this matter. The [Ministry] is of the view that section 13(1) of [the Act] applies to the covering memorandum and the Position Paper. The disclosure of these Records would reveal advice to government and recommendations within the deliberative process of government decision making and policy making. This free exchange of information and advice would be inhibited if information, advice, recommendations, and analysis which was prepared with an understanding that it would be maintained in confidence for a specific audience and for a specific purpose are made public.
Record 11 consists of a handwritten covering note and a Briefing Paper in respect of proposed amendments to the Regulations to the RST Act to clarify the application of the tax to promotional distributions. The Paper provides a number of recommendations and advice on how to clarify the application of the Regulations. The disclosure of these Records would reveal advice to government and recommendations within the deliberative process of government decision making and policy making.
The Ministry indicates that Record 27:
…consists of [Questions and Answers] in respect of the amendments to the provisions dealing with promotional distributions. This document was prepared to advise the Minister of Finance on how to respond to issues raised by members of the Legislature in relation to the passage of the Bill.
Page 1 of Record 17 and page 2 of Record 25 contain “legal specifications” of a proposed amendment to the Retail Sales Tax Act. Page 2 of Record 21 and pages 3, 5 and 7 of Record 24 contain duplicates of these two records. The Ministry states that Record 17 “provides a recommendation and advice on how to clarify the application of the Regulations”. According to the Ministry, Record 25 was prepared to “clarify the application of the tax to promotional distributions”.
With respect to Records 10 and 11, the appellant states:
The Ministry’s failure to disclose significant material information (including its author, the circumstances of its preparation and the deliberations that would have been affected by it) regarding Record 10 strongly suggests that he Ministry cannot sustain withholding the documents in question under ss. 13(1)… the Ministry’s bald assertion that “it is not possible to separate the factual content from the advice and recommendation” … is not supported by the evidence and should be rejected.
… it is clear that a document which is entitled “Briefing paper” must have been prepared for informational (or “briefing”) purposes (rather than actual advice as to a suggested course of action that will ultimately be accepted or rejected by its recipient during a deliberative process)…
The appellant takes the position that the exemption in section 13(1) is “clearly not applicable” to Record 27.
Relying on his interpretation of the “deliberative process” discussed above, the appellant submits that section 13(1) is not applicable to exempt Records 17 and 36 from disclosure.
Finally, with respect to Record 25, the appellant submits that the Ministry has failed to establish that the record contains advice or recommendations.
In Order PO-2028, Assistant Commissioner Mitchinson reviewed previous orders of this office that have addressed the application of section 13(1) to records that are similar in nature to Records 10, 11 and 27 (such as issues or options papers and questions and answers), and concluded:
What is clear from these cases is that the format of a particular record, while frequently helpful in determining whether it contains “advice” for the purposes of section 13(1), is not determinative of the issue. Rather, the content must be carefully reviewed and assessed in light of the context in which the record was created and communicated to the decision maker. In circumstances involving options that do not include specific advisory language or an explicit recommendation, careful consideration must be given to determine what portions of a record including options contain “mere information” and what, if any, contain information that actually “advises” the decision maker on a suggested course of action, or allows one to accurately infer such advice. If disclosure of any portions of a record would reveal actual advice, as opposed to disclosing “mere information”, then section 13(1) applies.
In Order P-1137, former Adjudicator Anita Fineberg upheld the application of section 13(1) to a “briefing note” (which also contained draft questions and answers) in the circumstances of that appeal, stating:
Record 105 is a briefing note prepared by a Ministry policy analyst for the Minister’s meeting with an association with an interest in the MPTAP. The Ministry submits that the portion of this record including the draft recommended questions and answers, which have yet to be finalized by the provinces, satisfy the section 13(1) exemption.
Previous orders of the Commissioner’s office have found that the response sections of briefing notes and/or issue sheets often do not qualify for exemption under this section because they constitute mainly factual material which does not fall within the deliberative process of government. In my view, Record 105 may be distinguished from these cases in that the information contained in this record constitutes advice which is in many cases contingent on the position which the Ministry and the government as a whole will take with respect to the MPTAP and other issues surrounding compensation. Many of the suggested answers refer to responses to be developed with the assistance of the legal branch and have to accurately reflect the information in the agreement which had not been finalized at that time. In addition, there were several matters regarding the contribution fund which were in flux at the time of the drafting of the briefing note. Accordingly, I find that Record 105 constitutes recommendations which are part of the government’s deliberative process involving HIV compensation and thus qualifies for exemption under section 13(1) of the Act.
In contrast, in Order PO-1995, Assistant Commissioner Mitchinson made the following comments regarding a document commonly referred to as a “Questions and Answers” in concluding that it does not qualify for exemption under section 13(1):