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Document
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P-1351
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File #
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P_9600365
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Institution/HIC
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Ministry of Finance
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Summary
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NATURE OF THE APPEAL: The Ministry of Finance (the Ministry) received a request under the Freedomof Information and Protection of Privacy Act (the Act ) for access torecords relating to "the implementation of market value assessment oractual value assessment on neighbourhoods and/or individual properties in theCity of Toronto". Specifically, the requester sought access to any studieson the "distribution of tax increases or decreases along with any otherimpact studies which have been prepared". The requester is arepresentative of the City of Toronto's Urban Development Services Department. The Ministry denied access to the impact studies which it prepared as partof the "Golden Report", claiming the application of section 22(a) ofthe Act , as these records are publicly available in a CD-ROM versionfrom Publications Ontario. It also denied access to three additional impactstudies which it prepared, under the Cabinet records exemptions contained insections 12(1)(c) and (d). The requester, now the appellant, appealed the Ministry's decision to denyaccess to the three impact studies and submitted that additional recordsresponsive to his request should exist. A Notice of Inquiry was provided to the appellant and the Ministry. Representations were received from both parties. In its submissions, theMinistry appears to have withdrawn its reliance on section 12(1)(c) and,instead, is now relying on sections 12(1)(b), (d) and (e). Because sections12(1)(b), (d) and (e) are mandatory exemptions, I am obliged to review theirpossible application to the responsive records. DISCUSSION: CABINET RECORDS Sections 12(1)(b), (d) and (e) of the Act provide that: A head shall refuse to disclose a record where the disclosure would revealthe substance of deliberations of an Executive Council or its committees,including, (b)a record containing policy options or recommendations submitted, orprepared for submission, to the Executive Council or its committees; (d)a record used for or reflecting consultation among ministers of theCrown on matters relating to the making of government decisions or theformulation of government policy; (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; I will begin by applying the introductory wording of section 12(1) to therecords. Introductory Wording of Section 12(1) It has been determined in many previous orders that the use of the word "including"in the introductory wording of section 12(1) means that the disclosure of anyrecord which would reveal the substance of deliberations of an Executive Councilor its committees (not just the types of records listed in the varioussubparagraphs of section 12(1)), qualifies for exemption under section 12(1). In addition, it is possible that a record which has never been placed beforean Executive Council or its committees may qualify for exemption under theintroductory wording of section 12(1). This result will occur where aninstitution establishes that disclosure of the record would reveal the substanceof deliberations of an Executive Council or its committees, or that its releasewould permit the drawing of accurate inferences with respect to the substance ofdeliberations of an Executive Council or its committees. The Ministry submits that the disclosure of the Cabinet Submission, whichincludes the studies which are the subject of this appeal, would reveal thesubstance of the deliberations of the Executive Council which took place onMarch 27, 1996. It further argues that the studies themselves "are anintegral part of the Cabinet Submission and were made available for Cabinet toconsider." In Order 40, former Commissioner Linden, when faced with determining whethercertain "Cabinet Submissions" fell within the ambit of theintroductory wording in section 12(1), made the following observations: In my view, if records #2, #3 and #4 went before the Executive Council orany of its committees (which they did), and decisions were subsequently made bythe Executive Council about the subject matter contained in them (which theywere), then disclosure of these records would necessarily reveal the substanceof deliberations of an Executive Council or its committees and therefore meetthe requirements for exemption under subsection 12(1). I therefore find thatrecords #2, #3 and #4 fall within the scope of the subsection 12(1) mandatoryexemption. I accept the Ministry's contention that the records at issue were includedin a Cabinet Submission which went before the Executive Council on March 27,1996. I also accept that certain deliberations concerning the contents of thesubmission took place. I find, therefore, that the disclosure of the records atissue would necessarily reveal the substance of those deliberations by theExecutive Council. Because the requirements for exemption under theintroductory wording of section 12(1) have been met, the records are exempt fromdisclosure. Section 12(2)(b) Section 12(2)(b) reads as follows: Despite subsection (1), a head shall not refuse under subsection (1) todisclose a record where, the Executive Council for which, or in respect of which, the record hasbeen prepared consents to access being given. Previous orders issued by the Commissioner's office have held that, whilethis provision does not impose a requirement on the head of an institution toseek the consent of the Executive Council to release the relevant records inevery case, the head must at a minimum turn his or her mind to this issue[Orders P-771 and P-1146]. The Ministry has provided an affidavit from its delegated head, the Freedomof Information and Privacy Co-ordinator. There, the Co-ordinator indicates thathe considered whether to seek the consent of Cabinet to disclose the requestedrecords. Elsewhere in its submissions, the Ministry submits that because of thesensitivity of the information contained in the records, there was "nolikelihood of the consent being given". For this reason, the Ministryindicates that it did not seek the consent of Cabinet. In my view, the head of an institution must determine whether or not tobring the matter before Cabinet for the purposes of section 12(2)(b) based onthe circumstances of the individual case and the nature of the records at issue. In this case, the factors which would lead the Minister of Finance, as head ofthe institution, to bring the issue of consent before Cabinet would be thefollowing: (1) The legislation which enacts the new property assessment scheme wastabled
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Legislation
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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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Feb 25, 1997
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Type
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Order
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