The Freedom of Information and Protection of Privacy Act (“FIPPA”) and its municipal equivalent provide that every person has a right of access to a record or a part of a record in the custody or under the control of the government of Ontario or a government institution, with certain exceptions. One such exception allows the head of an institution to refuse disclosure when the record “would reveal advice or recommendations of a public servant, any other person employed in the service of an institution, or a consultant retained by the institution.”
The Ontario Court of Appeal recently considered the scope of this exception. The Minister of Finance appealed a decision of the Privacy Commissioner who had ordered access to what were described by the court as “draft option papers”.
When interpreting what qualifies as the“advice or recommendations of a public servant”, which do not have to be released, compared to factual information or empirical reports which do, the Court of Appeal clarified that this exception was designed to protect the decision-making process within public institutions. Therefore, where the content of the records in question relates to a suggested course of action and pertain to a decision that will ultimately be made, the exception can be applied.
The Court found that the adjudicator for the Information and Privacy Commissioner erred in holding that to have the right to refuse disclosure, the records relating to a course of action must be communicated directly to the final decision-maker, or that the author must recommend a single course of action. The Court held that a recommendation may suggest a preferred course of action, but“advice is also protected which may be no more than material that permits the drawing of inferences with respect to a suggested course of action ….”
As subsection 7(1) of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) provides for the same exception as subsection 13(1) of FIPPA, this should reassure school board and municipal staff that they may continue to produce private advice and recommendations as part of a protected deliberative process.