SCC Clarifies the Broad Definition of “Policy Advice or Recommendations” under FOIPPA

On May 9, 2014, the Supreme Court of Canada dismissed an appeal by an applicant and the Ontario Information and Privacy Commissioner (“OIPC”) from an Ontario Court of Appeal decision that an order to disclose certain records was unreasonable, because the records contained policy advice or recommendations.

John Doe made an access to information request for records of the Ontario Ministry of Finance concerning issues of retroactivity and the effective date of certain amendments to the Corporations Tax Act, R.S.O. 1990, c. 40. The Ministry determined that disclosure of the records would reveal advice or recommendations of a public servant, and declined to release them to the applicant under s. 13(1) of the Freedom of Information and Protection of Privacy Act (“FIPPA”). The OIPC reviewed the withholding of these records, ordered their disclosure to the applicant, and denied the Ministry’s application for reconsideration. The Ministry of Finance applied to the Ontario Superior Court for judicial review of the OIPC’s decision, which was dismissed. The Ministry then appealed to the Court of Appeal, which found the disclosure order was unreasonable and remitted the matter to the OIPC.

The disputed records contained the opinions of public servants on the advantages and the disadvantages of alternative effective dates of legislative amendments, which were used to make a decision between the dates. The question was whether these policy options constituted “advice” within the meaning of s. 13(1).

The OIPC decided that since most of the records’ contents did not reveal a suggested course of action, they could not be classed as “policy advice or recommendations”. In essence, the OIPC took a narrow approach to the interpretation of this phrase, and decided that it included only those options which were brought forward for decision. However, the SCC found that this definition failed to take account that “advice” must have a broader meaning than “recommendations” in order to give effect to the words of the statute. In exempting “advice or recommendations” from disclosure, the legislative intention must be that advice has a broader meaning than recommendations. Otherwise, it would be redundant. By leaving no room for advice to have a distinct meaning from recommendations, the OIPC’s decision was unreasonable.

The SCC took a broader approach to the definition of “advice” and determined that it must include policy options which were not exercised or acted upon. Interpreting “advice” as including opinions of a public servant as to the range of alternative policy options accords with the balance struck by the legislature between the goal of preserving an effective and neutral public service capable of producing full, free and frank advice and the goal of providing a meaningful right of access. Protection from disclosure would be illusory if only a communicated document was protected and not prior drafts.