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Document
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P-978
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File #
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P-9500027
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Institution/HIC
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Ministry of Citizenship, Culture and Recreation
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The Ministry of Citizenship, Culture and Recreation (formerly the Ministry of Citizenship) (the Ministry) received a request for access to "records regarding the involvement of the Ministry and its staff in efforts to stop the performance of Show Boat, including records concerning the cost and rationale of the Ministry's involvement". The Ministry located the responsive records and denied access to the majority of them, either in whole or in part. The Ministry also issued a fee estimate in the amount of $80, indicating that access to the severed records would be granted upon payment of this fee. The requester appealed the Ministry's decision regarding denial of access only. The records which are at issue in this appeal consist of briefing information, issue notes, action plans, reports and other documents of the Ontario Anti-Racism Secretariat department (the Secretariat) of the Ministry, listed in Appendix A to this order. The Ministry relies upon the following exemptions to deny access to the records, either in whole or in part: advice and recommendations - section 13(1) invasion of privacy - section 21(1) None of the records or portions of the records have been disclosed, despite the Ministry's decision to do so, because the appellant has not paid the fee requested by the Ministry. Some of these records appear to contain information to which the mandatory exemption in section 21 may apply. Therefore, I will review the relevant records on that basis. A Notice of Inquiry was provided to the appellant, the Ministry and 41 persons referred to in the records (the affected persons). Representations were received from the appellant, the Ministry and six affected persons. Two of the affected persons consented to the disclosure of the requested information which relates to them. Accordingly, this information will not be considered any further in this order. In its representations, the Ministry also confirmed that it had obtained the consent of one of the affected persons to release the severed information from Record 30. Accordingly, I will order this record to be disclosed in the order provisions below and this record is no longer at issue in this appeal. DISCUSSION: ADVICE AND RECOMMENDATIONS The Ministry submits that Records 7, 9, 10, 11, 12, 21, 26, 27, 31, 32, 34, 35, 36, as well as portions of Records 1, 2, 4, 5, 6, 8, 13, 15, 20, 23, 24, 25, 29 and 33 are exempt from disclosure under section 13(1) which states that: A head may refuse to disclose a record where the 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. It has been established in a number of previous orders that advice and recommendations for the purpose of section 13(1) must contain more than mere information. To qualify as "advice" or "recommendations", the information contained in the records must relate to a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process. Information in records which would reveal the advice or recommendations is also exempt from disclosure under section 13(1) of the Act . In Order 94, former Commissioner Sidney B. Linden commented on the scope of the exemption in section 13(1). He stated that "[t]his exemption purports to protect the free flow of advice and recommendations within the deliberative process of government decision-making or policy-making." The Ministry's submissions refer to a number of previous orders which have considered the section 13(1) exemption. The submissions, however, do not discuss the records individually, nor do they identify the suggested course of action which may be accepted or rejected by the recipient during the deliberative process within any of the records which have been withheld in full. I have carefully reviewed the records for which the section 13(1) exemption has been claimed and the representations of all the parties. The following are my findings. Records 1, 2, 4, 5, 6, 7, 8, 15, 20, 24, 25 and 29 all constitute information, briefing or issue notes. Some of these records, specifically Records 1, 2, 4, 5, 6, 8, 15, 25 and 29, contain sections entitled "recommendation(s)", "proposed next steps" and/or "suggested response". I find that the information in these sections contains detailed recommendations as to specific courses of action which will ultimately be accepted or rejected by the Ministry. Similarly, the information severed from Record 29 also outlines a suggested response which falls under the same category. Accordingly, this information qualifies for exemption under section 13(1) of the Act . I find, however, that the information severed from Records 7, 20 and 24, as well as the remainder of the information severed from Records 8, 15 and 25, does not contain "advice or recommendations" within the meaning of the Act . Rather, this information either describes the current status of the matters discussed in the records or outlines a plan of action which appears to have already been adopted by the Ministry. Accordingly, I find the exemption does not apply to this information. Records 9, 10, 11 and 12 in their entirety pertain to the Ministry's proposed action plans for community education and development. I find that all the information in these records contain detailed recommendations as to a specific course of action which will ultimately be accepted or rejected by the Ministry in reference to the proposed plans. Accordingly, Records 9, 10, 11 and 12 qualify for exemption under section 13(1) of the Act . Record 13 is a handwritten note which outlines a response to a certain plan. Record 31 consists of factual information detailing actions currently being undertaken by the Ministry on a certain issue, including the Ministry's position on the matter. Neither of these records contain any advice or recommendations as to a course of action to be taken by its recipient. Accordingly, neither Record 31, nor the information severed from Record 13, qualify for exemption under section 13(1)of the Act . Records 26, 27 and 32 are draft documents which contain proposed responses to certain questions, as well as the recommended strategic appr
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Legislation
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Subject Index
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Signed by
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Mumtaz Jiwan
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Published
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Aug 16, 1995
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Type
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Order
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