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Summary
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NATURE OF THE APPEAL: The Ministry of Health (the Ministry) received a request for all documents relating to the consideration, drafting and approval of Ontario Regulation 119/97 made under The Drug and Pharmacies Regulation Act and Ontario Regulation 121/97 made under The Pharmacy Act . These regulations provide for the advertising of prescription services by pharmacy operators and pharmacists. They were drafted following consultations between various branches of the Ministry and the Ontario College of Pharmacists. The requester indicated that his request was to include but not be limited to the following: (a) all correspondence (written, electronic or otherwise) between the Ministry and the Ontario College of Pharmacists which may include any discussion relating to the perceived need for such advertising regulations, as far back as those documents can be found; (b) any other correspondence (written, electronic or otherwise) between the Ontario College of Pharmacists and the Ministry, or any other parties, relating to the perceived need for advertising regulations, the drafting and content of the regulations, any comments on draft regulations, etc. (c) any internal documents in the possession of the Ministry, prepared by the Ontario College of Pharmacists or the Ministry, or anyone else, including internal e-mail, which in any way discuss or comment upon the proposed or finalized regulations, or the perceived need for such regulations; (d) all drafts, including marked-up drafts, of the proposed or finalized regulations; (e) any memoranda or advice relating to the legality of such regulations, and (f) any other documents or records whatsoever which touch upon the proposed or finalized regulations. The Ministry identified 158 records as responsive to the request. Records A-1 to A-83 were located in the Legal Services Branch; Records B-1 to B-67 in the Drug Program Branch, and Records C-1 to C-8 in the Professional Relations Branch. Records A-35, A-55, A-57, B-7, B-8, B-29, B-32, B-33, B-47, B-48, B-49, B-59, B-67, C-3, C-6, C-7 and C-8 were disclosed in full. The Ministry denied access to the remaining records, in whole or in part, based on the following exemptions in the Act : Cabinet records - section 12(1) advice or recommendations - section 13(1) third party information - section 17(1) solicitor-client privilege - section 19. The Ministry also informed the requester that certain portions of some of the records were not responsive to his request. The requester, now the appellant, appealed the Ministry's decision. During mediation, the Appeals Officer advised the appellant that some of the records consist of facsimile cover pages, but that the documents which were originally attached to them are to be found elsewhere in the records. The Appeals Officer also informed the appellant that an identifiable individual was mentioned by name in Record B-21. The appellant indicated that he was not interested in the name of this individual and this information is not, therefore, at issue in this appeal. A Notice of Inquiry was sent to the appellant, the Ministry and three organizations who had provided submissions to the Ministry about the proposed regulations (the affected parties). A Notice of Inquiry was later forwarded to the Ontario College of Pharmacists (hereafter referred to as the OCP), as well. Representations were received from the appellant, the Ministry and the OCP. One of the affected parties who responded, consented to the disclosure of its submissions to the Ministry, which are contained in Record B-22. In its representations, the Ministry addressed whether there were additional responsive records which were not identified in the original decision letter. The appellant agreed that this question is no longer an issue in this appeal. The Ministry also claimed the application of the mandatory exemption in section 17(1) of the Act to additional records beyond those addressed in its original decision letter. In his representations, the appellant raised the possible application of section 23 of the Act , the so-called "public interest override". A Supplementary Notice of Inquiry was subsquently sent to the Ministry, the OCP and the affected parties soliciting their submissions with respect to the application of section 17(1) to a number of records and section 23 generally. Submissions in response to the Supplementary Notice of Inquiry were received from the Ministry, the appellant and the OCP. RECORDS: The records which remain at issue were categorized by the Ministry as follows: 1. Draft regulations: A-1 to A-7, B-3, B-10, B-11, B-15 to B-17, B-27, B-40, B-42, B-44 to B-46 and B-61 to B-63; 2. Draft Cabinet submissions: A-8 to A-25 and B-2; 3. Documentation from Ministry Program employees' working files: A-26 to A-34, A-36 to A-54, A-58 to A-83, B-1, B-4 to B-6, B-9, B-12 to B-14, B-19 to B-21, B-23 to B-26, B-28, B-31, B-34 to B-39, B-41, B-50 to B-58, B-60, B-64 to B-66, C-1, C-2, C-4 and C-5. DISCUSSION: CABINET RECORDS The Ministry has claimed the application of various subsections of section 12(1) of the Act , as well as the introductory wordings contained in the section, to a number of the records at issue. Section 12(1) provides, in part, that: 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;
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