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Document
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P-1425
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File #
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P_9600462
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Institution/HIC
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Ministry of Environment and Energy
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Summary
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NATURE OF THE APPEAL: The Ministry of Environment and Energy (the Ministry) received a requestunder the Freedom of Information and Protection of Privacy Act (the Act )for access to information relating to the continuation of the Ministry'sIntervenor Funding Project. The Ministry located a number of responsive recordsand granted access to some of them, in whole or in part. Access to theremaining records and parts of records was denied, pursuant to the followingexemptions contained in the Act : Cabinet records - sections 12(1)(a), (b) and (e) advice or recommendations - section 13(1) relations with other governments - section 15 solicitor-client privilege - section 19 The requester, now the appellant, appealed that part of the Ministry'sdecision which dealt only with 14 severances made to a 63-page record entitled "Contentof Final Decision Note to Minister Elliott". The Ministry claimed theapplication of sections 12(1)(a), (b) and (e), as well as section 13(1) to thesevered portions of this document, a 12-page summary and five appendicestotalling 41 pages. A Notice of Inquiry was provided to the Ministry and the appellant, legalcounsel to an environmental organization which often appears as an intervenor athearings before the Environmental Assessment Board (the EAB), the Ontario EnergyBoard (the OEB) and Joint Boards under the Consolidated Hearings Act . Representations were received from the appellant and the Ministry. The Ministryalso indicated that it intended to rely on the application of section 12(1)(f)to exempt certain portions of the record. This was communicated to theappellant, who advised that he did not wish to make any further submissions onthe possible application of this section to the information contained in therecord. DISCUSSION: CABINET RECORDS As noted above, the Ministry is relying on sections 12(1)(a), (b), (e) and(f) of the Act . These sections state: A head shall refuse to disclose a record where the disclosure would revealthe substance of deliberations of an Executive Council or its committees,including, (a)an agenda, minute or other record of the deliberations or decisions ofthe Executive Council or its committees, (b)a record containing policy options or recommendations submitted, orprepared for submission, to the Executive Council or its committees; (e)a record prepared to brief a minister of the Crown in relation tomatters that are before or are proposed to be brought before the ExecutiveCouncil or its committees, or are the subject of consultations among ministersrelating to government decisions or the formulation of government policy; and (f)draft legislation or regulations. I will determine whether the exemptions under section 12(1) apply to each ofthe 14 severances as they appear in the record. Severances 1 and 2 The Ministry submits that the information which has been withheld fromdisclosure on page 1 and under bullet point 1 on page 2 is identical to thatcontained in a February 19, 1996 briefing note provided to the Minister. Forthis reason, it argues that the record was prepared to brief a minister of theCrown within the meaning of section 12(1)(e) and it is, accordingly, exemptunder this section. I do not agree with the position taken by the Ministry withrespect to this information. The subject matter of these portions of the recordwas not proposed to be taken, nor was it ultimately brought, before Cabinet orone of its committees. For this reason, I find that section 12(1)(e) has noapplication to these portions of the record. Severances 3 and 6 The Ministry submits that Severance 3 on page 2 and Severance 6 on page 8 ofthe record contain references to information contained in a Cabinet submissionwhich was provided to the Policy and Priorities Committee of Cabinet on February14 and May 14, 1996. I find that the disclosure of this information wouldreveal the substance of deliberations of two meetings of Cabinet. Theinformation is, therefore, exempt under the introductory wording to section12(1). Severances 4, 5 and 8 Severances 4, 5 and 8 on pages 2 and 3, pages 3 to 8 and pages 22 to 25respectively, contain an outline of the options available to the government withrespect to the continuance of the Intervenor Funding Project. The Ministrysubmits that these portions of the record fall within the ambit of section12(1)(b) as they contain policy options. I have not, however, been providedwith any evidence that this information was, in fact, submitted or prepared fora submission made to Cabinet or one of its committees. I find that thisinformation is not, accordingly, exempt under section 12(1)(b) Severance 7 The Ministry submits that Severance 7, contained in pages 18 and 19, isexempt under the introductory wording to section 12(1). It submits that thedisclosure of this portion of the record would reveal the deliberations of therespective Ministers attending a Policy and Priorities Committee meeting. Italso indicates, however, that the information in these records reflects certaindiscussions which took place at two meetings in the fall of 1995 between theMinistry and representatives of other "stakeholder ministries". Ihave not been provided with any evidence to demonstrate that these meetings tookplace in the context of a meeting of Cabinet or its committees, as is requiredby the introductory wording to section 12(1). In my view, in the absence of such evidence, I am unable to find that thesubstance of the deliberations of Cabinet or one of its committees would berevealed by the disclosure of this portion of the record. Severance 9 The Ministry submits that Severance 9, found on page 26 of the record, isexempt under section 12(1)(f) as it contains draft wording to be incorporatedinto certain proposed legislation. I agree that, because Severance 9 containsdraft legislation, it is properly exempt under section 12(1)(f). Severance 10 The information contained in Severance 10 on pages 31 and 32 relates to thesteps to be taken by the Ministry, along with the Ministry of the AttorneyGeneral, in relation to the implementation of the strategies agreed upon by thePolicy and Priorities Committee of Cabinet. As such, I agree with theMinistry's submission that this portion of the record is properly exempt undersection 12(1)(e). Severance 11 As was the case with Severances 4, 5 and 8, Severance 11 contains policyoptions with respect to the future of intervenor funding in Ontario. I havefound above that Severances 4, 5 and 8 were not exempt under section 12(1)(b) asI had not been provided with sufficient evidence to demonstrate that theseporti
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Legislation
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FIPPA
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12(1)(a)
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12(1)(b)
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12(1)(e)
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12(1)(f)
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13(1)
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Subject Index
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Signed by
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Donald Hale
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Published
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Jul 16, 1997
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Type
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Order
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