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Document
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PO-1831
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File #
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PA-990428-1
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Institution/HIC
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Ministry of Consumer & Commercial Relations
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Summary
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NATURE OF THE APPEAL: This appeal is brought by the Ontario Liquor Board Employees Union (the Union) which represents the approximately 4,600 employees of the Liquor Control Board of Ontario (the LCBO). The Union submitted a request under the Freedom of Information and Protection of Privacy Act (the Act) to the Ministry of Consumer and Commercial Relations (the Ministry) for access to a document referred to as the "LCBO Modernization Report" (the Report). As well, the Union requested copies of other related "documents and reports", including a "listing of fees paid by the Ministry to outside consultants". The Ministry issued a decision letter in which it denied access to the Report on the basis that its disclosure would reveal the substance of Cabinet deliberations. Specifically, the Ministry claimed that the exemptions in sections 12(1)(b), (c) and (e) of the Act applied to the Report. Subsequently, the Ministry provided the appellant with the requested information relating to consultation fees. The Union appealed the Ministry's decision to deny access to the Report and raised the possible application of section 12(2)(b) of the Act . Section 12(2)(b) provides that an institution shall not refuse to disclose otherwise exempt Cabinet records if Cabinet consents to the disclosure. The Union seeks an order requiring the Minister to re-consider the application of section 12(2)(b). During mediation of this appeal, the Ministry indicated that it intended to issue a separate decision with respect to the request for related "documents and reports", and it has now done so. On this basis, it was agreed by the parties that the only record at issue in this appeal is the Report itself, which it referred to in the representations as the "Modernization Report". The title of the report appears on its cover page as follows: "Report for the Minister of Consumer and Commercial Relations[:] Modernization of the Liquor Control Board of Ontario". All parties have submitted representations on the issues in this appeal. The Ministry submitted initial representations which relied on the exemptions in sections 12(1), 13(1) and 18(1). The Union was asked for representations on the application of section 12(1) only. The Ministry's representations on section 12 were forwarded to the Union, with portions severed on the basis that disclosure would reveal information which is claimed to be exempt from disclosure. In its responding representations, the Union stated, among other things, that the Ministry had not met its burden of proof in claiming the exemptions in section 12(1); that the representations lacked adequate particulars; and that the Modernization Report is properly characterized as a report prepared for the Liquor Control Board of Ontario, and not a Cabinet document. After considering the Union's submissions, this Office requested that the Ministry submit reply representations on some of the issues raised by the Union, including the alleged failure to meet its burden of proof and the lack of particulars. The reply submissions were not shared with the Union. I have now reviewed both sets of representations from the Ministry and the representations of the Union. This is the decision on the merits of this appeal. ISSUES IN DISPUTE There are only two issues in this appeal: whether or not the Modernization Report is exempt from disclosure on the basis that disclosure would reveal the substance of deliberations of Cabinet; whether or not the Ministry has appropriately exercised its discretion in making a decision to not request that Cabinet consent to disclosure of the Report. DECISION: I find that the Modernization Report is exempt from disclosure, under section 12(1), on the basis that disclosure would reveal the substance of Cabinet deliberations. The decision of the Ministry to deny access to the Modernization Report is upheld. Further, I am satisfied that the Minister has exercised its discretion under section 12(2)(b) in deciding not to request the consent of Cabinet for the disclosure of the Report, and has done so in consideration of relevant factors. I deny the request of the Union for an order requiring the Minister to re-consider the decision not to seek Cabinet consent. RELEVANT SECTIONS OF THE LEGISLATION The Ministry has relied on section 12(1), and particularly paragraphs (b)(c) and (e), in denying access to the Modernization Report. The Union has cited section 12(2)(b) in seeking an order requiring the Ministry to request that Cabinet consent to disclosure of the Report. Section 12 reads: (1) A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including, (a) an agenda, minute or other record of the deliberations or decisions of the Executive Council or its committees; (b) a record containing policy options or recommendations submitted, or prepared for submission, to the Executive Council or its committees; (c) a record that does not contain policy options or recommendations referred to in clause (b) and that does contain background explanations or analyses of problems submitted, or prepared for submission, to the Executive Council or its committees for their consideration in making decisions, before those decisions are made and implemented; (d) a record used for or reflecting consultation among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy; (e) a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committees, or are the subject of consultations among ministers relating to government decisions or the formulation of government policy; and (f) draft legislation or regulations. (2) Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record
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Legislation
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Subject Index
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Signed by
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Katherine Laird
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Published
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Nov 07, 2000
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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