Supreme Court Of Canada: Limits On Government Disclosure Include Policy Options

On Friday, the Supreme Court of Canada ("SCC") issued a unanimous decision in John Doe v. Ontario (Finance), 2014 SCC 36 that outlines the parameters on the ability of the public to access information under Ontario's Freedom of Information and Protection of Privacy Act ("FIPPA") that is prepared for the purposes of informing the deliberative processes of government bodies.

In sheltering draft policy options from public access by fitting it within an exemption for "advice or recommendations" prepared for a public institution, Canada's highest court provided helpful discussion on where the presumption for public right of access to government information will butt up against the boundaries of the goal of preserving space for public servants or consultants to produce "full, free and frank advice".

Access Request for Documents Containing Policy Options

Following amendments to the Ontario Corporations Tax Act R.S.O. 1990, c. C. 40 to eliminate a loophole for tax havens, a request for the disclosure of records related to considerations of the effective date and retroactive application of the amendments was made to the Ministry of Finance and the Ministry of Revenue. Responsive records included draft versions of a paper that formed part of the briefings of the Minister, Deputy Minister, Assistant Deputy Minister of Finance and the Office of Budget and Taxation, and discussed when the amendments should take effect, including express statements regarding which options were not recommended.

Procedural History

In denying access to the records, the Ministry of Finance relied on s. 13(1) of FIPPA, which allows the government to refuse disclosure of a record that would reveal "advice or recommendations" prepared for a public institution.

Access was subsequently ordered by an Adjudicator in the Office of the Information and Privacy Commissioner of Ontario ("IPC"). This was based largely on the consideration that (i) the content of the records did not reveal a suggested course of action that will ultimately be accepted or rejected by the person being advised, and (ii) there was no clear evidence that the documents were communicated to the person being advised; the lack of a final version suggested that the information was not actually used in the decision-making process.

The matter wound its way up through the courts, where the Ontario Court of Appeal found the disclosure order unreasonable, allowed the appeal, and remitted the matter to the IPC.

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