ORDER PO-4708

Appeal PA23-00579

Ministry of the Solicitor General

August 22, 2025

Summary: A journalist requested all records of communications related to a media request he filed with the Ministry of the Solicitor General. The ministry decided to withhold the requested communications claiming that they contain advice or recommendations protected by the exemption at section 13(1) or are subject to solicitor-client privilege and protected by the exemption in section 19 of the Act. The requester appealed the ministry’s decision and claimed that the public interest override at section 23 applies. The adjudicator finds that 11 of the 13 records at issue are exempt from disclosure and she upholds the ministry’s decision to withhold them; she finds that the public interest override does not apply to the records exempt under section 13(1). She also finds that the remaining two records at issue are not exempt, and she orders them disclosed.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 , as amended, sections 13(1), 13(2), 19, and 23.

Orders Considered: Orders PO-3804-I and PO-4139.

Cases Considered: Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner) (1997) 102 O.A.C. 71, 46 Admin L.R. (2d) 115, [1997] O.J. No. 1465 (Div. Ct.).; Ontario (Ministry of Community and Social Services) v. Cropley, 2004 CanLII 11694 (ON SCDC).

OVERVIEW:

[1] This order resolves an appeal from a decision to withhold emails responsive to a request made by a journalist under the Freedom of Information and Protection of Privacy Act (the Act). Since most of the records are subject to solicitor-client privilege, they must remain withheld.

[2] The journalist submitted a requester under the Act to the Ministry of the Solicitor General (the ministry). The access request was for all records of communications within the ministry’s communications branch and the minister’s office related to the journalist’s media request regarding a specific company. The ministry issued a decision granting partial access to the responsive records. The ministry withheld some information and records under the discretionary exemptions at sections 13(1) (advice or recommendations) and 19 (solicitor-client privilege) and the mandatory exemption at section 17(1) (third party information) of the Act. Some records/record portions were withheld on the basis that they were not responsive to the request.

[3] The requester (now the appellant) appealed the ministry’s decision to the Information and Privacy Commissioner of Ontario (IPC).

[4] The IPC appointed a mediator to explore the possibility of resolution. Mediation narrowed the scope of the appeal, removing the issues of section 17(1)[1] and non-responsiveness but did not resolve the appeal. The appellant raised the public interest override at section 23 of the Act in relation to the section 13(1) claim. The appeal then moved to the adjudication stage of the appeal process, where an adjudicator may conduct an inquiry.

[5] I conducted a written inquiry on the issues set out below. I received written representations from the ministry that I shared with the appellant, who provided representations in response. I then invited the ministry to provide representations in reply to those of the appellant, but it declined to do so.

[6] For the reasons that follow, I uphold the ministry’s decision in part. I find that section 13(1) applies to two records and that section 23 does not apply to them; I further find that section 13(1) does not apply to two other records and order these records disclosed. I further find that section 19 applies to the remaining records.

RECORDS:

[7] All of the 13 records at issue, records 1-10 and 12-14, are email chains, many containing duplicate emails or partial duplicates of other chains.[2]

[8] The ministry claims section 13(1) over all the withheld information. It also claims that section 19 applies to records 1-6, 8-10, and 14, in whole or in part.

ISSUES:

1. Does the discretionary exemption at section 13(1) for advice or recommendations given to an institution apply to the records?
2. Is there a compelling public interest in disclosure of the records that clearly outweighs the purpose of the section 13 exemption?
3. Does the discretionary solicitor-client privilege exemption at section 19 of the Act apply to the record?

DISCUSSION:

Issue A: Does the discretionary exemption at section 13(1) for advice or recommendations given to an institution apply to the records?

[9] Section 13(1) of the Act exempts certain records containing advice or recommendations given to an institution. This exemption aims to preserve an effective and neutral public service by ensuring that people employed or retained by institutions are able to freely and frankly advise and make recommendations within the deliberative process of government decision-making and policy-making.[3]

[10] Section 13(1) states:

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.

What is “advice” and what are “recommendations”?

[11] “Advice” and “recommendations” have distinct meanings. “Recommendations” refers to a suggested course of action that will ultimately be accepted or rejected by the person being advised. Recommendations can be express or inferred.

[12] “Advice” has a broader meaning than “recommendations.” It includes “policy options,” which are the public servant or consultant’s identification of alternative possible courses of action. “Advice” includes the views or opinions of a public servant or consultant as to the range of policy options to be considered by the decision maker even if they do not include a specific recommendation on which option to take.[4] “Advice” involves an evaluative analysis of information.

[13] Neither “advice” nor “recommendations” include “objective information” or factual material. Section 13(1) applies if disclosure would “reveal” advice or recommendations, either because the information itself consists of advice or recommendations or the information, if disclosed, would permit the drawing of accurate inferences as to the nature of the actual advice or recommendations.[5]

[14] The relevant time for assessing the application of section 13(1) is the point when the public servant or consultant prepared the advice or recommendations. The institution does not have to prove that the public servant or consultant actually communicated the advice or recommendations. Section 13(1) can also apply if there is no evidence of an intention to communicate, since that intention is inherent to the job of policy development, whether by a public servant or consultant.[6]

[15] Examples of the types of information that have been found not to qualify as advice or recommendations include: factual or background information,[7] a supervisor’s direction to staff on how to conduct an investigation,[8] and information prepared for public dissemination.[9]

Sections 13(2) and (3): exceptions to the exemption

[16] Sections 13(2) and (3) create a list of mandatory exceptions to the section 13(1) exemption. If the information falls into one of these categories, it cannot be withheld under section 13(1). The exceptions in section 13(2) can be divided into two categories: objective information, and specific types of records that could contain advice or recommendations.[10] The first four paragraphs in section 13(2), paragraphs (a) to (d), are examples of objective information. They do not contain an opinion related to a decision to be made, but rather provide factual information.[11]

Representations

The ministry’s representations

[17] The ministry notes some of the general principles I set out above, including the purpose of the exemption at section 13, set out in paragraph 9 above. Again, that purpose is to preserve an effective and neutral public service by ensuring that people employed or retained by institutions are able to freely and frankly advise and make recommendations within the deliberative process of government decision-making and policy-making.[12]

[18] The ministry indicates that there were internal communications about the enforcement of the Provincial Animal Welfare Services Act, 2019 [13] (PAWS Act ) against a certain company. In considering whether the records are “advice” or “recommendations,” the ministry says that it applied the definitions for these terms that were in the Notice of Inquiry (which I set out above). The ministry explains that the advice and recommendations flowed in the emails exchanged between staff in the Minister’s office, the ministry’s communications’ branch, and Animal Welfare Services (a ministry program area). In these communications, the Minister’s office was either accepting or rejecting the advice or recommendations or proposing alternate wording. The ministry submits that this process led towards the development of public communications on specific subject matter. The ministry submits that disclosure of these records would permit the drawing of accurate inferences as to the contents of the advice or recommendations.

[19] The ministry relies on Order PO-4139 where it says that the IPC upheld similar types of emails as exempt from disclosure under section 13 because they contain a “summary of advice and discussion exchanged regarding a future decision[.]” The ministry submits that this reasoning applies to the emails here regarding the future decision about public communications regarding the enforcement of the PAWS Act  against a named company.

[20] The ministry submits that none of the section 13(2) exceptions to the exemption applies.

[21] The ministry states that it exercised its discretion in accordance with its usual practice and the goal of ensuring close collaboration between ministry staff.

The appellant’s representations

[22] The appellant does not directly address the ministry’s exemption claim. He does, however, argue that the records may include information that qualifies for the exception at section 13(2)(a), which says: “Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record that contains . . .factual material[.]”

[23] The appellant does not identify any specific relevant factor that the ministry should have considered but did not, or any irrelevant factor that the ministry considered in exercising its discretion. Rather, the appellant criticizes the ministry’s exercise of discretion. He submits that the ministry was “far too broad” in claiming the exemptions over most of the requested records.

Analysis and findings

[24] For the following reasons, I uphold the ministry’s decision to withhold records 12 and 13 (which contain some duplicate information), but not for records 6 and 7 (which are also related).

[25] Records 12 and 13, are emails between staff in the Minister’s Office, the ministry’s communications branch and a ministry program area discussing suggestions for the Minister’s Office about public communications on the enforcement of the PAWS Act  against a specific company. These emails contain suggestions accepted or rejected by the Minister’s Office and an evaluative analysis of information within the meaning of advice or recommendations protected by section 13(1). I am satisfied that disclosure of these records would reveal the advice or recommendations of ministry staff. I find that section 13(1) applies to records 12 and 13. I am satisfied that that the ministry exercised its discretion in good faith to withhold these records considering the wording of the exemption and the interests it seeks to protect, and its historic practice. I accept that these are relevant factors to have considered in the circumstances, and I uphold the ministry’s exercise of discretion.

[26] However, having reviewed records 6 and 7, I am not persuaded that they qualify for exemption under section 13(1). These records are not communications between ministry or other institutional staff, and I am unable to discern what advice or recommendations could be revealed by their disclosure. I find that records 6 and 7 are not exempt.

[27] The ministry claims section 19 in the alternative for record 6, which I consider under Issue B. It does not claim another exemption for record 7. Since the ministry does not claim that record 7 qualifies for any other exemption, I will order it to disclose record 7.

Issue B: Is there a compelling public interest in disclosure of the records that clearly outweighs the purpose of the section 13 exemption?

[28] For the following reasons, I find that there is no compelling public interest in disclosure of records 12 and 13. I am analyzing the application of the public interest override at section 23 here because records that are subject to section 19 cannot be subject to section 23.

[29] Section 23 of the Act, the “public interest override,” provides for the disclosure of records that would otherwise be exempt under another section of the Act. It states:

An exemption from disclosure of a record under sections 13, 15, 15.1, 17, 18, 20, 21 and 21.1 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

[30] For section 23 to apply, two requirements must be met:

• there must be a compelling public interest in disclosure of the records; and
• this interest must clearly outweigh the purpose of the exemption.

[31] The Act does not state who bears the onus to show that section 23 applies. The IPC will review the records with a view to determining whether there could be a compelling public interest in disclosure that clearly outweighs the purpose of the exemption.[14]

Compelling public interest

[32] In considering whether there is a “public interest” in disclosure of the record, the first question to ask is whether there is a relationship between the record and the Act’s central purpose of shedding light on the operations of government.[15] In previous orders, the IPC has stated that in order to find a compelling public interest in disclosure, the information in the record must serve the purpose of informing or enlightening the citizenry about the activities of their government or its agencies, adding in some way to the information the public has to make effective use of the means of expressing public opinion or to make political choices.[16] A public interest is not automatically established because a requester is a member of the media.[17]

[33] The IPC has defined the word “compelling” as “rousing strong interest or attention”.[18] The IPC must also consider any public interest in not disclosing the record.[19] A public interest in the non-disclosure of the record may bring the public interest in disclosure below the threshold of “compelling.”[20]

[34] A compelling public interest has been found to exist where, for example:

• the records relate to the economic impact of Quebec separation;[21]
• the integrity of the criminal justice system is in question;[22] and
• the records contain information about contributions to municipal election campaigns.[23]

[35] A compelling public interest has been found not to exist where, for example:

• there has already been wide public coverage or debate of the issue, and the records would not shed further light on the matter;[24] and
• the records do not respond to the applicable public interest raised by appellant.[25]

Representations

The ministry’s representations

[36] The ministry submits that the records were created for the purpose of developing public communications and therefore, there is no compelling public interest in their disclosure. The ministry also submits that any disclosure threatens the purpose of the exemption at section 13, which is to encourage open, candid, and close communications between ministry staff. The ministry argues that there is “no ability to ‘freely and frankly advise’ between staff if emails of this nature are subject to disclosure.”

The appellant’s representations

[37] The appellant submits that there is a high degree of public interest in what is happening at the company in question.” He asserts that media stories about this company “are widely read and picked up readily by our clients, which represent the vast majority of news outlets across the country.” He states that people pay a significant amount of money to do business with this company, and that the public pays for the ministry and Animal Welfare Services. He submits that nobody knows how the animals are doing there, except the government. He submits that of particular interest to the public are the actions of publicly paid animal welfare inspectors tasked with keeping animals safe across Ontario, including at entities like the one in question. He adds that there have been several animal deaths at the company, but little is known about Animal Welfare Services’ role in overseeing the large number of animal deaths and why information is being withheld.

[38] In addition, the appellant says that Ontario’s Solicitor General has told him a few times that Animal Welfare Services inspectors are at this company every week and have issued orders against it. The appellant states, however, that the details of those orders, or the orders themselves, have never been released.

[39] The appellant notes that to find a compelling public interest, “the information in the record must serve the purpose of informing or enlightening the citizenry about the activities of their government or its agencies, adding in some way to the information the public has to make effective use of the means of expressing public opinion or to make political choices.” He argues that there “could not be a more compelling public interest to release the information requested because the public record is virtually bereft of information about how Animal Welfare Services operates and how the government decides to inform the public of what [Animal Welfare Services] is up to.”

Analysis and findings

[40] Having reviewed records 12 and 13, I am not persuaded that there is a public interest in their disclosure. As the ministry submits, the records are correspondence between staff relating to communicating a public message and the exemption at section 13 exists precisely to protect this type of free and frank communication between public servants. While any disclosure may be said to “shed light on” an issue, I am not persuaded that disclosure of the specific information in records 12 and 13 would enable the public to make “effective use of the means of expressing public opinion or to make political choices.” The contents of these records are not substantively about the broader public interest issues the appellant identifies in his representations. Considering the information in the records, in my view, records 12 and 13 do not correspond to the wider scope of issues that the appellant raises. For example, disclosure will not yield transparency on any orders issued against the company or the role of Animal Welfare Services workers. The appellant’s representations do not establish a compelling public interest in the disclosure of records 12 and 13 and I find that the public interest override at section 23 does not apply in this appeal.

Issue C: Does the discretionary solicitor-client privilege exemption at section 19 of the Act apply to the record?

Section 19

[41] Section 19 exempts certain records from disclosure, either because they are subject to solicitor-client privilege or because they were prepared by or for legal counsel for an institution. The first branch of this exemption, which I discuss below, is found in section 19(a), (“subject to solicitor-client privilege”) and is based on common law. Section 19(a) says: “A head may refuse to disclose a record, that is subject to solicitor-client privilege[.]”

Common law solicitor-client communication privilege

[42] The rationale for the common law solicitor-client communication privilege is to ensure that a client may freely confide in their lawyer on a legal matter.[26] This privilege protects direct communications of a confidential nature between lawyer and client, or their agents or employees, made for the purpose of obtaining or giving legal advice.[27] The privilege covers not only the legal advice itself and the request for advice, but also communications between the lawyer and client aimed at keeping both informed so that advice can be sought and given.[28]

[43] The privilege may also apply to the lawyer’s working papers directly related to seeking, formulating or giving legal advice.[29]

[44] Confidentiality is an essential component of solicitor-client communication privilege. The institution must demonstrate that the communication was made in confidence, either expressly or by implication.[30] The privilege does not cover communications between a lawyer and a party on the other side of a transaction.[31]

[45] Under the common law, a client may waive solicitor-client privilege. In this appeal, there is no suggestion that the privilege was waived.

Record-by-record analysis

[46] The Ontario Divisional Court has said this about solicitor-client privilege: “Once it is established that a record constitutes a communication to legal counsel for advice, . . . the communication in its entirety is subject to privilege.”[32] The Court also stated that the privilege “protects the entire communication and not merely those specific items which involve actual advice.”[33] Past IPC orders have also recognized that records containing direct solicitor-client communications relating to the seeking or receiving of legal advice are subject to a “class-based privilege,” and therefore, are not subject to severance.[34]

[47] Here, the IPC’s copy of the records (which are many email chains) are in the form of a single pdf document (84 pages long). In keeping with the Court’s statements above, although the ministry claims section 19 over specific pages in the 84-page document sent to the IPC, if solicitor-client privilege applies to part of an email chain, the privilege applies to the entire email chain (the entire record).

Representations

The ministry’s representations

[48] The ministry submits that the records are subject to the common law or statutory solicitor-client communications privilege under section 19, noting that section 19 allows the ministry to protect records “prepared for use in giving or seeking legal advice.” The ministry explains that the records contain specific requests for legal advice from ministry staff to ministry legal counsel, and the contents of the advice provided by ministry legal counsel. The ministry states that the following types of emails are exempt under solicitor-client privilege:

• advice provided by legal counsel indirectly to the minister’s staff via other ministry staff, which is identified as being legal advice or legal approved communications (for example, record 1)
• advice provided directly by legal counsel to other ministry staff on an email chain (for example, record 2)
• communications between ministry staff indicating that they were going to be requesting advice from legal counsel or that they were requesting advice by copying them on an email (for example, record 2), and
• emails where legal counsel were intentionally copied on an email chain, providing them with information that they could use for the purpose of giving further advice (for example, record 2).

[49] The ministry states that there is no indication that any of the solicitor-client privilege was claimed regarding any of the records.

[50] In support of its position, the ministry relies on past IPC orders, such as Order PO-3804-I. In that order, the IPC stated that the courts and the IPC have “consistently found that legal advice that counsel provides to an institution, or its agents or employees is covered by solicitor-client communication privilege.”[35] The ministry also cites the Divisional Court, which said:

The legal advice covered by solicitor-client privilege is not confined to a solicitor telling his or her client the law. The type of communication that is protected must be construed as broad in nature, including advice on what should be done, legally and practically . . .[36]

[51] The ministry states that it exercised its discretion in accordance with its usual practice and with the goal of ensuring that communications between ministry staff and legal counsel are protected.

The appellant’s representations

[52] The appellant questions whether all pages withheld under section 19 are exempt. He urges me to consider whether “every single sentence in every single email constitutes protection under solicitor-client privilege.” He also submits that merely copying a lawyer on an email discussing how to craft a response to a reporter “does not explicitly or necessarily equate to ministry staff seeking legal advice.”

[53] The appellant also argues that nothing in section 19 captures one of the examples in the ministry’s representations (communications between ministry staff indicating that they were going to be requesting advice from legal counsel or that they were requesting advice by copying them on an email).

[54] Regarding the exercise of discretion, the appellant submits that the ministry was “far too broad” in deciding to withhold most of the records.

Analysis and findings

[55] The ministry claims section 19 over records 1-6 and 8-10. I uphold the ministry’s decision for all records, except record 6.

[56] As discussed above, for solicitor-client privilege it is the whole record, not individual sentences in emails, which I must consider. Based on my review of the contents of records 1-5 and 8-10, I find that each of them is subject to common law solicitor-client communication privilege. It is clear to me from the records themselves that they contain direct communications of a confidential nature between lawyer and client, or their agents or employees, made for the purpose of obtaining or giving legal advice.[37] Some records also contain communications between the lawyer and client aimed at keeping both informed so that advice can be sought and given, which is also covered by the privilege, as are requests for legal advice.[38] I note that the examples given by the ministry in its representations are from two records, but these are just examples and much of the content is repeated throughout the withheld records. There is no suggestion that the solicitor-client privilege was waived, and the ministry’s representations affirm that it was not. For these reasons, I find that records 1-5 and 8-10 in their entirety are exempt from disclosure under branch 1 of section 19.

[57] However, having reviewed record 6, I find that it does not contain solicitor-client privileged information. As a result, I find that section 19 does not apply to record 6.

[58] I am satisfied that it was relevant for the ministry to consider the importance of preserving the solicitor-client relationship in exercising its discretion to claim section 19 over records 1-5 and 8-10. I do not accept the appellant’s view that the ministry’s exercise of discretion was too broad because of how much information it withheld. In the circumstances, given the importance of solicitor-client privilege, I am satisfied that the ministry exercised its discretion reasonably.

[59] In conclusion, I uphold the ministry’s decision regarding records 1-5 and 8-10, and records 12 and 13, but I do not uphold the ministry’s decision to withheld records 6 and 7.

ORDER:

1. I uphold the ministry’s decision to deny access to records 1-5, 8-10, 12 and 13.
2. I order the ministry to disclose records 6 and 7 to the appellant by September 26, 2025, but not before, September 21, 2025. I reserve the right to obtain a copy of the ministry’s decision letter and a copy of the records disclosed to the appellant.

Original Signed by:		August 22, 2025
Marian Sami
Adjudicator