On May 9, 2014, the Supreme Court of Canada ruled that the exemption for advice under section 13 Freedom of Information and Protection of Privacy Act and section 7 of Municipal Freedom of Information and Protection of Privacy Act included options and drafts of advice. Moreover, the Court found that the exemption applied even where there was no evidence that it was communicated. This decision ends a long-standing debate about the meaning of the exemption which states that it applies to “a record where disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution.”
Previously, the Information and Privacy Commissioner had ruled that advice and recommendations had similar meanings and that in order for the exemption to apply there had to be a suggested course of action and such action had to be communicated to an official. This removed drafts and option papers from the purview of the exemption. The Supreme Court disagreed and found the decision of the IPC based on that jurisprudence was unreasonable. In so doing the Court held that “advice” had a broader meaning than “recommendations”. It stated that advice of public servants must be full and frank and that public scrutiny of advice in any of its myriad forms would undermine the process for decision-making within government. [see para. 44-46] As well, the IPC ruling that there was a need to establish that the advice was communicated was also struck down. The Court noted that it is implicit that policy is developed with a view to being communicated and no evidence is required to establish that—it is inherent to the job function. [see para. 51-54] Accordingly, this decision establishes that the exemption may apply to a broad range of records created in the policy development process, whether they be drafts or option papers and those records prepared in order to develop government policy. Notably, the exceptions to the exemption in subsection (2) were referred to by the Court to reflect the intention of the Legislature regarding the records associated with advice or recommendations that were intended to be disclosed, such as factual material, statistical surveys and reports of testing etc.