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FOI (Ont) - Cabinet Exemptions [FIPPA s.12]. Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner)
In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) (SCC, 2023) the Supreme Court of Canada considers the balance between freedom of information law and cabinet secrecy, here in a Crown-successful appeal from an Ontario FIPPA JR of the CBC's request for cabinet 'mandate letters':I. Introduction
[1] Freedom of information (FOI) legislation strikes a balance between the public’s need to know and the confidentiality the executive requires to govern effectively. Both are crucial to the proper functioning of our democracy. This appeal concerns the balance between these two foundational principles.
[2] Access to information promotes transparency, accountability, and meaningful public participation. Without adequate knowledge of what is going on, legislators and the public can neither hold government to account nor meaningfully contribute to decision making, policy formation, and law making. In this way, FOI legislation is intended not to hinder government but to “improve the workings of government” by making it “more effective, responsive and accountable” to both the legislative branch and the public (Dagg v. Canada (Minister of Finance), 1997 CanLII 358 (SCC), [1997] 2 S.C.R. 403, at para. 63).
[3] However, in our Westminster system of government, the executive — like the judicial and legislative branches — also requires certain spheres of confidentiality to fulfill its constitutional role. Each of the executive, legislative branch, and judiciary play “critical and complementary roles in our constitutional democracy” and “each branch will be unable to fulfill its role if it is unduly interfered with by the others” (Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 29). Thus, constitutional conventions flow from the separation of powers and protect the spheres of confidentiality needed for a government institution “to perform its constitutionally-assigned functions” (British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506 (B.C. Judges), at para. 66). Just as legislative privilege protects the ability of elected representatives to act on the will of the people (Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687), and deliberative secrecy preserves the independence of the judiciary (MacKeigan v. Hickman, 1989 CanLII 40 (SCC), [1989] 2 S.C.R. 796, at pp. 830-31), Cabinet confidentiality grants the executive the necessary latitude to govern in an effective, collectively responsible manner (Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at para. 15). Cabinet secrecy is “essential to good government” (ibid.), as it promotes deliberative candour, ministerial solidarity, and governmental efficiency by protecting Cabinet’s deliberations (B.C. Judges, at paras. 95-97; Carey v. Ontario, 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637, at pp. 658-59).
[4] All FOI legislation across Canada balances these two essential goals through a general right of public access to government-held information subject to exemptions or exclusions — including those for Cabinet records or confidences. This appeal implicates that balance in relation to the Cabinet records exemption in s. 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (FIPPA). Section 12(1) exempts a list of records, as well as any other records that would reveal the “substance of deliberations” of Cabinet or its committees. The interpretation of “substance of deliberations” by the Information and Privacy Commissioner of Ontario (IPC or Commissioner) is at the heart of this case.
[5] The access to information dispute in this appeal arises out of a Canadian Broadcasting Corporation (CBC) journalist’s request to access 23 letters that the Premier of Ontario delivered to each of his ministers shortly after forming government in 2018 (Letters). These Letters, commonly called “mandate letters”, set out the Premier’s views on policy priorities for the government’s term in office. Cabinet Office declined the journalist’s request, claiming the Letters were exempt from disclosure under s. 12(1) of FIPPA.
[6] The CBC appealed to the IPC, who found that the Letters were not exempt and ordered their disclosure (Order PO-3973, 2019 CanLII 76037). On judicial review, the Ontario Divisional Court found that the IPC’s decision was reasonable and a majority of the Ontario Court of Appeal agreed (2020 ONSC 5085, 93 Admin. L.R. (6th) 1; 2022 ONCA 74, 160 O.R. (3d) 481). In dissent, Lauwers J.A. would have found that the decision was unreasonable for several reasons, but mainly because it eroded the sphere of Cabinet privilege that s. 12(1) is designed to preserve.
[7] As I shall explain, I conclude that the IPC’s decision was unreasonable. The Commissioner paid careful attention to the text of the legislation and considered some of the purposes of Cabinet confidentiality. His reasons were intelligible and transparent. But he did not engage meaningfully with the legal and factual context against which s. 12(1) operates — in particular, constitutional conventions and traditions surrounding Cabinet confidentiality and Cabinet’s decision-making process, including the role of the Premier within that process. Cabinet confidentiality creates conditions necessary to ensure an effective government. The Commissioner did not consider a key rationale underlying the convention: promoting the efficiency of the collective decision-making process. His failure to grapple with the broader constitutional dimension of Cabinet confidentiality led him to an overly narrow interpretation of s. 12(1). He excluded “outcomes” of the deliberative process, without regard for the impact that premature disclosure of policy priorities at an early stage of the process may have on the efficient workings of government.
[8] Moreover, even on the Commissioner’s interpretation of s. 12(1), his application of the standard to the Letters was unreasonable. The IPC’s characterization of the Letters as containing only non-exempt “topics” or final “outcomes” of the Premier’s deliberative process did not account for the broader context of the Cabinet’s deliberative process. For one, as head of Cabinet, the Premier’s deliberations cannot be artificially segmented from those of Cabinet. And far from being mere “topics” like items on an agenda, the Letters reflect the views of the Premier on the importance of certain policy priorities, and mark the initiation of a fluid process of policy formulation within Cabinet. The Letters are revealing of the substance of Cabinet deliberations, both on their face and when compared against what government actually does.
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III. Analysis
[14] Section 12(1) protects the confidentiality of records that “would reveal the substance of [Cabinet] deliberations”. Similar exemptions are found in FOI legislation across the country.[1] The opening words of s. 12(1) provide that “[a] head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations” of Cabinet or its committees. The paragraphs of the provision protect listed records, which need not meet the standard set out in s. 12(1)’s opening words to qualify for protection. Section 12(1) is reproduced in full in the attached Appendix. Only the opening words of the provision are at issue.
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[26] The legislative context shows FIPPA’s Cabinet records exemption was a critical part of the balance the legislature struck between public access to information and necessary spheres of government confidentiality (see Legislative Assembly of Ontario, Official Report of Debates (Hansard), No. 21, 1st Sess., 33rd Parl., July 12, 1985, at pp. 753-55 (Hon. Ian G. Scott) (recognizing that FIPPA required “balanc[ing]” of competing interests and that the Cabinet records exemption protected “central institutions of representative government”)). In contemplating the enactment of FOI legislation in Ontario, the official report of the Williams Commission recognized that changes to access to government information practices had to be compatible with the province’s traditions and the constitutional conventions related to the effective functioning of Cabinet (Commission on Freedom of Information and Individual Privacy, Public Government for Private People: The Report of the Commission on Freedom of Information and Individual Privacy (1980) (Williams Report), at pp. 83 and 85).
[27] Beyond legislation, Cabinet confidentiality is protected as a matter of constitutional convention, or the rules of behavior established by government institutions that are not enforced by the courts, but are considered binding by those who operate the Constitution (A. Heard, Canadian Constitutional Conventions: The Marriage of Law & Politics (2nd ed. 2014), at p. 5; see also Reference re Resolution to amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753, at p. 880). Because s. 12(1) was designed to preserve the secrecy of Cabinet’s deliberative process, the constitutional dimension of Cabinet secrecy was crucial context in interpreting s. 12(1).
[28] In our constitutional democracy, the confidentiality of Cabinet deliberations is a precondition to responsible government because it enables collective ministerial responsibility. Responsible government is a fundamental principle of our system of government (OPSEU v. Ontario (Attorney General), 1987 CanLII 71 (SCC), [1987] 2 S.C.R. 2, at p. 38) and the “most important non-federal characteristic of the Canadian Constitution” (P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 9:3). Government is “responsible” in that the executive is accountable to, and must maintain the confidence of, the legislative assembly (§ 9:1; Heard, at p. 90). Cabinet ministers are both individually responsible for their own conduct and respective departments, and collectively responsible for government policy and action (G. White, Cabinets and First Ministers (2005), at pp. 15-16).
[29] Cabinet secrecy derives from the collective dimension of ministerial responsibility (Y. Campagnolo, “The Political Legitimacy of Cabinet Secrecy” (2017), 51 R.J.T.U.M. 51, at p. 59). Collective ministerial responsibility requires that ministers be able to speak freely when deliberating without fear that what they say might be subject to public scrutiny (IPC reasons, at paras. 86-87 and 97). This is necessary so ministers do not censor themselves in policy debate, and so ministers can stand together in public, and be held responsible as a whole, once a policy decision has been made and announced. These purposes are referred to by scholars as the “candour” and “solidarity” rationales for Cabinet confidentiality (see Campagnolo (2017), at pp. 66-72). At base, Cabinet confidentiality promotes executive accountability by permitting private disagreement and candour in ministerial deliberations, despite public solidarity (ibid.; see also N. d’Ombrain, “Cabinet secrecy” (2004), 47 Can. Pub. Admin. 332, at p. 336).
[30] Scholars also refer to a third rationale for the convention of Cabinet confidentiality: it promotes the efficiency of the collective decision-making process (see Campagnolo (2017), at p. 68). Thus, Cabinet secrecy promotes candour, solidarity, and efficiency, all in aid of effective government. This objective is also reflected in the jurisprudence of this Court. In Carey, this Court observed that the very purpose of the confidentiality is the proper functioning of government (pp. 664, 670-71 and 673). In Babcock, McLachlin C.J. stated: “Cabinet confidentiality is essential to good government” (para. 15). And in John Doe v. Ontario (Finance), 2014 SCC 36, [2014] 2 S.C.R. 3, this Court noted that exposure of policy priorities at an early stage of the deliberative process to journalists or political opponents “is combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness” (para. 44, quoting Canadian Council of Christian Charities v. Canada (Minister of Finance), 1999 CanLII 8293 (FC), [1999] 4 F.C. 245, at para. 31).
[31] Cabinet confidentiality is therefore “not just a convenient political dodge; it is essential to effective government” (see White, at p. 139; see also p. 138). Our jurisprudence focuses broadly on the value of deliberative secrecy to the effective operation of government institutions, including Cabinet. It also recognizes that too much openness can impair that aim (see Babcock, at para. 18; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815 (Criminal Lawyers’ Association 2010), at para. 40; B.C. Judges, at para. 96; see also John Doe, at para. 44; Williams Report, at p. 235). The court continues at [paras 23-57] to explain how the tribunal and lower court erred when they found that CBC was entitled to the mandate letters:C. Conclusion
[58] In sum, 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, dynamic nature of the Cabinet decision-making process. The IPC’s lack of appreciation for the contextual constraints bearing upon its decision led him to unreasonable interpretive approaches and conclusions. He characterized the Letters as outcomes of the Premier’s deliberative process; found they were mere topics that did not permit accurate inferences as to Cabinet deliberations; and required evidence from Cabinet Office to show that disclosure of the Letters would permit accurate inferences to be drawn as to “actual Cabinet deliberations at a specific Cabinet meeting” (para. 100; see also paras. 116-17). As a result, the IPC’s narrow interpretation of the “substance of deliberations” was unreasonable. And even on his understanding of the provision, his application of the provision to the Letters was unreasonable. The Letters, along with the representations of Cabinet Office, were clearly sufficient to establish the Letters fell within s. 12(1). The IPC’s decision ordering disclosure must be set aside.
[59] I would add this. There can be no doubt that, as the CBC submits, public access to government-held information is vital to our democratic process (see R.F., at para. 49, citing John Doe, at para. 41). As this Court noted in Dagg, “without an adequate knowledge of what is going on”, neither legislators nor the public can hope to hold government accountable or contribute to the policy-making process (para. 61, quoting D. C. Rowat, “How Much Administrative Secrecy?” (1965), 31 Can. J. of Econ. and Pol. Sci. 479, at p. 480). Still, 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 (see FIPPA, ss. 16, 20 and 21).
[60] Given the key role Cabinet confidentiality plays in the proper functioning of our Westminster system of government, cases about its proper scope raise important issues for the stability and legitimacy of our democracy. Cabinet confidentiality both enables the proper functioning of responsible government by promoting collective ministerial accountability to the legislature and affords the executive the operational space it needs to function effectively (B.C. Judges, at paras. 65-67 and 96; Carey, at p. 659; see also Criminal Lawyers’ Association 2010, at para. 40). These functions are crucial both to the principle of responsible government and to the separation of powers. Spheres of confidentiality insulated from “undue external interference” are essential to the executive’s ability to “perform its constitutionally-assigned functions” (B.C. Judges, at paras. 66 and 96).
[61] In approaching assertions of Cabinet confidentiality, administrative decision makers and reviewing courts must be attentive not only to the vital importance of public access to government-held information but also to Cabinet secrecy’s core purpose of enabling effective government, and its underlying rationales of efficiency, candour, and solidarity. They must also be attentive to the dynamic and fluid nature of executive decision making, the function of Cabinet itself and its individual members, the role of the Premier, and Cabinet’s prerogative to determine when and how to announce its decisions.
[62] Such an approach reflects the opening words of s. 12(1), which mandate a substantive analysis of the requested record and its substance to determine whether disclosure of the record would shed light on Cabinet deliberations, rather than categorically excluding certain types of information from protection. Thus, “deliberations” understood purposively can include outcomes or decisions of Cabinet’s deliberative process, topics of deliberation, and priorities identified by the Premier, even if they do not ultimately result in government action. And decision makers should always be attentive to what even generally phrased records could reveal about those deliberations to a sophisticated reader when placed in the broader context. The identification and discussion of policy priorities in communications among Cabinet members are more likely to reveal the substance of deliberations, especially when considered alongside other available information, including what Cabinet chooses to do.
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