SCC Gives Advice On FIPPA Advice

John Doe's request to access a record considering government policy options has been denied by the Supreme Court of Canada. In a unanimous decision, the Court held that public servant opinions on policy options are exempt from disclosure to the public.

The Records at Issue and Background

John Doe requested records about amendments to the Corporations Tax Act.1The records were versions of a paper that formed part of ministerial briefings. One of the options in the paper was enacted.

The Ministry of Finance first denied John Doe's request to access the records on the basis that the records contained "advice" pursuant to s. 13(1). On appeal, an Adjudicator in the Office of the Information and Privacy Commissioner of Ontario overturned the Ministry of Finance's decision, and held that in order for the opinions of public servants to be considered "advice" under s. 13(1), they must be considered by the final decision-maker.2 The Adjudicator found no evidence that the records had been used in the final decision-making process, and thus ordered the disclosure.

The Divisional Court held that the Adjudicator's decision was reasonable, and upheld the disclosure.3

The Court of Appeal disagreed with the Adjudicator and Divisional Court.4 It held that the contribution the policy papers would have made to the deliberative process leading up to a final decision was sufficient to categorize them as "advice".5 The record did not have to actually be considered by the final decision-maker in order to be exempt from disclosure.6

"Advice" May Be Broader Than "Recommendations"

FIPPA s. 13 exempts both "advice" and "recommendations" from mandatory release. The Court found that in order to engage in a proper interpretation of the statute, one must recognize the difference between "advice" and "recommendations". Both words must have a distinct meaning. The Court held that "advice" was broader than "recommendations," and found the Adjudicator's characterization of both terms was unreasonable.7

Policy Options Can Be "Advice"?

The Court then considered whether "policy options" constituted "advice". "Policy options" were defined as "a list [that] sets out alternative courses of action relating to a decision to be made."8 The Court held that the absence of "policy options" in s. 13(2) (a section that enumerates particular records which must be disclosed) was informative of the legislature's intent not to disclose records containing policy options.9 Given the absence of...