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Document
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PO-1726
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File #
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PA-990049-1
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Institution/HIC
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Ministry of Education and Training
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Summary
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NATURE OF THE APPEAL: The Ministry of Education and Training (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to the results of "... any polls, focus groups or other opinion research conducted by the government in the last year on education-related issues, plus the cost". The Ministry identified 23 responsive records. It granted access in full to seven records, and denied access to the other 16 in their entirety pursuant to section 13(1) of the Act . The Ministry's decision letter to the requester included an index describing the records, which identified the polling firm that prepared each of the 23 records, together with the corresponding cost for each project. The requester (now the appellant) appealed the Ministry's decision, and also claimed that there is a compelling public interest in disclosure of the records pursuant to section 23 of the Act . During mediation, the Ministry disclosed four additional records. The Ministry also clarified that no records were prepared with respect to two of the projects listed in the index; one other was cancelled without any record being created; and in one other instance a single record was prepared for two of the listed projects. As a result, by the end of mediation the scope of the appeal was reduced to eight records. I sent a Notice of Inquiry to the Ministry and the appellant, and received representations from both parties. DISCUSSION: ADVICE OR RECOMMENDATIONS The Ministry claims that the records qualify for exemption pursuant to section 13(1) of the Act which states: 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. This exemption is subject to the exceptions listed in section 13(2). It has been established in a number of previous orders that advice or 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 that would permit the drawing of accurate inferences as to the nature of the actual advice and recommendation given also qualifies for exemption under section 13(1) (see, for example, Orders P-1054, P-1593 and PO-1709). In Order 94, former Commissioner Sidney B. Linden commented on the scope of this exemption. He stated that it "... purports to protect the free-flow of advice and recommendations within the deliberative process of government decision-making and policy-making". According to the Ministry, the three polling firms which submitted the eight records were retained as consultants to conduct particular focus groups on various education-related issues, and to report their findings to the Ministry. The Ministry explains: It is standard practice in the consulting profession to conduct focus groups as a means of gathering research on a project. A focus group is used as a tool of "market analysis". Focus groups are not intended to be ends in themselves but rather, are indicators of the public's opinion on a certain issue. When a company or the government hires a consultant to conduct a focus group, the purpose is to obtain advice or recommendations that can be used to streamline, modify, create or revamp policy. The Ministry goes on to submit: It is the Ministry's position that the consultant's records on the focus groups reveal, on their face, advice or recommendations to the government pursuant to section 13(1) of the Act . They represent more than mere reportage. But in the alternative, the Ministry also relies on the IPC's ruling that a record may be exempt if it would reveal advice or recommendations by inference, even though it is not itself advisory in nature (Orders P-233, M-280). Either on their face or by inference, the records at issue indeed, reveal advice or recommendations by consultants retained by the government for their expertise and skill. Certainly, in the public sector, expressed feelings of the public on a specific issue (on which a great deal of policy work has already taken place) has a direct and meaningful impact on the formulation and direction of the government's policy. The appellant submits: ... My experience is that polling companies offer, not advice, but analysis and interpretation of their work that simply makes it easier to understand. Still, I acknowledge that it's possible the reports prepared by the polling companies contain advice or recommendations that stem out of the results of that research. This part of the report may fall under the exemption. However, the actual data from the polling, and the actual responses of the focus group members cited in the reports are, I submit, a completely different matter. That information is simply the neutral outcome of methodically, perhaps, scientifically, conducted research. It is a measure, whether accurate or not, of public opinion. As countless pundits have commented over the decades, polls, focus groups and other opinion research can be interpreted in any number of ways, depending on the biases of those doing the interpretation. The raw data remains just that - an attempt at representing the facts, without the subjective analysis. Therefore, it can't be exempted. The eight remaining records are all memoranda which report the results and/or findings of individual focus groups. Six records relate to various communications and/or advertising strategies being considered or implemented by the Ministry, and the other two deal with policies under consideration at the time of the focus group session. Each record describes the composition of the focus group, the issues or questions that were canvassed, the various responses and input obtained from focus group participants, and the analysis and conclusions drawn fro
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Legislation
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Nov 05, 1999
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Type
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Order
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