In a unanimous ruling in John Doe v. Ontario (Finance), the Supreme Court of Canada found that the “advice or recommendations” exemption in Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) should be broadly interpreted. The Supreme Court’s ruling will limit the circumstances in which requesters will be able to access government records.
This case concerned records which were sought under FIPPA by an anonymous requester. The records, which related to the provincial government’s decision to amend Ontario’s corporate tax law retroactively, were created by public servants in the Ministry of Finance.
FIPPA provides a broad right of access to government information. FIPPA also provides for certain limited and specific exemptions to that broad right of access. These include a discretionary exemption relating to records that “would reveal advice or recommendations of a public servant.” The Minister of Finance refused to disclose the records at issue on the basis that they fell within that exemption.
The provincial Information and Privacy Commissioner disagreed. She found the records did not disclose “advice or recommendations” because they were not in final form, did not contain a suggested course of action, were not communicated to the decision-maker, and were not used in the minister’s deliberative process. Thus, she ordered the minister to release the records, an order which was appealed up to the Supreme Court.
The Supreme Court sided with the minister, holding that the “advice or recommendations” exemption applied to the records at issue. As a result, the minister was permitted to exercise his discretion to shield the records from disclosure, as he did. The Supreme Court found that any record which reveals the “opinions of a public servant as to [a] range of alternative policy options” falls within the definition of “advice,” which distinguishes “advice” from “recommendations.” It also found that records could be protected as “advice” even if they were never communicated to the minister or never intended to be communicated to the minister.
This is a broad interpretation of “advice or recommendations,” creating a wide range of circumstances in which ministerial discretion might be invoked to shield documents from disclosure.