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.1 The 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.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.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".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.Given the absence of policy options from the list specified in s. 13(2), the Court held that policy options constitute advice under s. 13(1).

"Advice" Does Not Need to Reach the Decision-Maker

The Court also addressed the issue of whether policy options need to be communicated to the final decision-maker to be exempt from disclosure. The Court held that the purpose of the exemption was to "preserve an effective and neutral public service so as to permit public servants to provide full, free and frank advice."10 The Court found it would erode the government's effectiveness and credibility if internal deliberations that revealed "false starts [and] blind alleys" had to be disclosed to the public.11 Policy-makers create these documents with the intention that they will be used in the deliberative process.12 Officials who know they may be subject to public scrutiny are less likely to be full, free and frank.13 The protection of the credibility and effectiveness of the public service was sufficient for the Court to hold that records not reaching the final decision-maker may be exempt from disclosure.

Implications

The Court focused on maintaining the privacy needed to ensure an effective public service. John Doe's implications for government are therefore clear. However, private actors will also be impacted. John Doe himself is an example: he is a tax lawyer who requested records on behalf of taxpayers concerned about the impact of retroactivity of legislation on their tax liability.

In seeking information, requestors will now need to ensure that access requests are properly framed and government institutions do not fetter their discretion when withholding records.

By affirming the Ontario Court of Appeal's decision, John Doe affirmed the state of law in Ontario. The Court's broad interpretation of "advice" is not just important in Ontario, however.

The Federal Access to Information Act14 also contains an exemption from disclosure for advice or recommendations.15 Four provincial information and privacy commissioners intervened in the appeal. The Court's decision may have Canada-wide impact. It will be interesting to see how broadly institution heads now apply the advice or recommendations exemption and how narrowly the commissioners and courts seek to limit such claims.

Jeremy Rankin