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Document
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PO-2247
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File #
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PA-030210-2
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Institution/HIC
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Ministry of Health and Long-Term Care
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Summary
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NATURE OF THE APPEAL:
The Ministry of Health and Long-Term Care (the Ministry) received a request under the
Freedom of Information and Protection of Privacy Act (the Act) for access to the agendas and
minutes of two inter-provincial committees, the Federal/Provincial/Territorial Coordinating
Committee on Genetics and Health (now known as the Co-ordinating Task Force on Genetics
and Health, the CTGH) and the Interprovincial Health Insurance Agreements Coordinating
Committee (the IHIACC) and its predecessor, the Co-ordinating Committee on Reciprocal
Billing (the CCRB)
The Ministry located records responsive to the request and denied access to them under sections
15(a) and (b) of the Act (relations with other governments).
The requester, now the appellant, appealed this decision. Mediation was not successful and the
matter was moved to the adjudication stage of the appeals process. I sought and received the
representations of the Ministry, initially. The non-confidential portions of the Ministry’s
submissions were then provided to the appellant, along with a Notice of Inquiry setting out the
facts and issues in the appeal. The appellant declined the opportunity to provide representations
in response to the Notice.
RECORDS:
The records at issue consist of 25 documents comprising:
• CTGH records – 4 agendas and 4 sets of meeting notes for the period June 14, 2002 to
March 24, 2003
• IHIACC records – 9 agendas and 8 sets of meeting minutes for the period June 20 and 21,
2001 to December 12 and 13, 2002
DISCUSSION:
RELATIONS WITH OTHER GOVERNMENTS
General principles
The Ministry claims the application of the discretionary exemptions in sections 15(a) and (b) to
the responsive records. These sections state:
A head may refuse to disclose a record where the disclosure could reasonably be
expected to,
(a) prejudice the conduct of intergovernmental relations by the
Government of Ontario or an institution;
(b) reveal information received in confidence from another
government or its agencies by an institution;
- 2 -
[IPC Order PO-2247/February 27, 2004]
Section 15 recognizes that the Ontario government will create and receive records in the course
of its relations with other governments. Section 15(a) recognizes the value of intergovernmental
contacts, and its purpose is to protect these working relationships. Similarly, the purpose of
sections 15(b) and (c) is to allow the Ontario government to receive information in confidence,
thereby building the trust required to conduct affairs of mutual concern [Order PO-1927-I; see
also Order P-1398, upheld on judicial review in Ontario (Minister of Finance) v. Ontario
(Information and Privacy Commissioner) (1999), 118 O.A.C. 108 (C.A.)].
For this exemption to apply, the institution must demonstrate that disclosure of the record “could
reasonably be expected to” lead to the specified result. To meet this test, the institution must
provide “detailed and convincing” evidence to establish a “reasonable expectation of harm”.
Evidence amounting to speculation of possible harm is not sufficient [Ontario (Workers’
Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41
O.R. (3d) 464 (C.A.)].
If disclosure of a record would permit the drawing of accurate inferences with respect to
information received from another government, it may be said to “reveal” the information
received [Order P-1552].
Section 15(a): prejudice to intergovernmental relations
In order for a record to qualify for exemption under section 15(a), an institution must establish
that:
1. the records relate to intergovernmental relations, that is relations between
an institution and another government or its agencies; and
2. disclosure of the records could reasonably be expected to prejudice the
conduct of intergovernmental relations.
[Reconsideration Order R-970003]
Representations of the Ministry
The Ministry makes the following general arguments in support of its position that the records
are exempt under section 15(a):
The fundamental purpose of the section 15 exemption under the [Act] is to protect
the confidentiality of intergovernmental discussions, and the integrity of
intergovernmental relations. Issues of common interest are discussed by the
federal, provincial and territorial governments at intergovernmental meetings in
order to compare and develop policy in respect of such issues. The frank and
open discussions that are necessary to the success of such meetings can be
supported and promoted only if the confidentiality of the discussions is assured.
Participants at intergovernmental meetings not only expect, but actively depend
- 3 -
[IPC Order PO-2247/February 27, 2004]
on the confidential nature of the meetings when expressing their views or
describing their government’s policies on a given issue. If confidentiality is not
assured, governments and their representatives will be less forthcoming at these
meetings. This result would effectively undercut the very purpose and goals of
such meetings.
The value and importance of the section 15 exemption in the Act is underscored
by the unique drafting of the exemption. Although it is a discretionary exemption
(A head ‘may’ refuse to disclose a record), unlike other discretionary exemptions
(aside from section 16) the head’s discretion is expressly limited. The closing
words prohibit disclosure (the head ‘shall not disclose’) of a record that meets the
conditions of section 15 ‘without the prior approval of the Executive Council’.
Consequently, if the disclosure of the records at issue could reasonably be
expected to result in one of the harms described in section 15, and the head wishes
to exercise his/her discretion to disclose them, the head must first obtain Cabinet’s
approval.
The records at issue in this appeal relate to the meetings of two inter-provincial
committees: the Federal, Provincial and Territorial Co-ordinating Committee on
Genetics and Health (now known as the Co-ordinating Task Group on Genetics
and Health, the ‘CTGH’) and the Interprovincial Health Insurance Agreements
Coordinating Committee (IHIACC) formerly known as the Co-ordinating
Committee on Reciprocal Billing).
The CTGH’s overall objective is to assist jurisdictions across Canada in
developing a comprehensive, co-ordinated framework in respect of genetic issues
such as Patent Reforms, Genetic Technology, Genetic Health Human Resources,
and the management of personal genetic information. It presently reports through
the Advisory Committee on Information and Emerging Technologies (ACIET) to
the Conference of Deputy Ministers and to Premiers, and its mandate includes
providing advice to inform Deputies’ decisions on the policy and practical
implications of current and potential developments in genetics, and to develop and
implement a cross-jurisdictional framework and strategy for genetics. To this
end, it co-ordinates and exchanges information and insures linkages with relevant
genetic and health bodies. It meets quarterly and its membership consists of one
representative each from the federal, provincial and territorial (FPT) governments.
The IHIACC is an inter-provincial structure that oversees the application of interprovincial
health insurance agreements in accordance with the Canada Health
Act. Decisions made by the Committee concern eligibility for health insurance
coverage and reciprocal billing of insured hospital and physician services as
defined under federal and provincial health insurance legislation. IHIACC
members and contacts share information through regular liaison via conference
calls, written communications and face-to-face meetings, with members soliciting
and reflecting views of contacts on all issues. Members meet three times a year;
- 4 -
[IPC Order PO-2247/February 27, 2004]
the meetings provide a forum for both information sharing and collaborative
problem-solving.
The meetings of both committees are held in camera and the proceedings are not
made available to the public.
The FPT members attending these meetings engage in frank and open discussions
with a clear expectation of confidentiality. If members knew that the meetings
would not remain confidential, they would be less inclined to discuss matters
candidly or attend at all. Therefore, disclosing these records - - which were
generated under the assumption that they would in fact remain confidential - -
would undercut the value of future meetings and would have a potentially
negative impact on the quality of advice provided to senior government officials
on issues related to the mandates of the two committees.
With respect to the application of the first part of the test under section 15(a), the Ministry
submits that the relations are intergovernmental for the following reasons:
It is clear on the face of all 25 records that the relations at issue are
intergovernmental because the meetings they refer to were intergovernmental and
were attended by representatives of the FPT governments across Canada.
In Orders P-170 and PO-1927-I, the IPC defined “intergovernmental relations” as
being the “formal and informal discussions and exchanges of information as the
result of joint projects, planning and negotiations between various levels of
government”. The MOHLTC submits that this definition applies to the 25 records
at issue. They all relate to formal discussions and exchanges of information
regarding joint projects undertaken by FPT governments in respect of issue of
common concern.
The CTGH records document the FPT governments’ work on a coordinated
approach to various complex genetic health issues. Its very mandate is to
implement a cross-jurisdictional framework and strategy for genetics.
Similarly, the IHIACC records reflect the views and information shared by its
members regarding the application of inter-provincial health insurance
agreements, and decisions about the eligibility of certain hospital and physician
services for insurance coverage and reciprocal billing.
With respect to the second part of the test under section 15(a), the Ministry relies on the
decisions in Orders P-1137 and PO-1891-I which held that the disclosure of the contents of
certain records relating to meetings involving representations of the federal, provincial and
territorial governments could reasonably be expected to prejudice intergovernmental relations
under section 15(a). The Ministry submits that the same principles expressed in these decisions
apply to the meeting minutes that comprise a portion of the records at issue in the present appeal.
In support of this position, it relies on an explicit statement contained on page 4 of Record 2
- 5 -
[IPC Order PO-2247/February 27, 2004]
where the confidentiality of the minutes of meetings of the CCRB “must be considered
confidential material and therefore not be distributed to the general public.”
The Ministry points out that the Minutes of the meetings of both Committees are quite detailed,
recording what each representative said, reported or undertook to do. Therefore, the Ministry
suggests that their disclosure “would effectively reveal the actual proceedings and discussions
that took place on many highly sensitive issues.” In its confidential representations, the Ministry
provides some examples of the types of specific actions and issues under discussion at the
meetings of these Committees and why, in its view, their disclosure could reasonably be
expected to prejudice the conduct of inter-governmental relations.
With respect to the meeting agendas, the Ministry submits that:
They were generated for or relate to the formal and informal discussions and
exchanges of information among the FPT governments in the context of the
CTGH and IHIACC meetings. The Agenda topics themselves reflect the fact that
governments are exploring the identified issues and are perhaps giving them
policy consideration. Since the policy development in respect of these topics may
in fact be at a very early stage, or may in the future be abandoned altogether, their
disclosure in the Agendas would be premature and could, out of context, be
misinterpreted. Given that one of the goals of these meetings is to provide a
confidential forum for exploring and exchanging ideas and nascent policies, the
disclosure of even the Agendas alone would undermine this goal.
Findings
With respect to the first part of the test under section 15(a), I have no difficulty in finding that the
relations reflected in the subject matter of the records at issue are intergovernmental in nature.
The records relate directly to matters involving the relationship between the Province of Ontario
and its federal, provincial and territorial counterparts. The records directly address matters of
common interest and concern between these entities and are, accordingly, intergovernmental in
their scope.
The second part of the section 15(a) test requires that the Ministry provide “detailed and
convincing evidence” in support of its argument that the disclosure of the records could
reasonably be expected to result in harm to the conduct of those intergovernmental relations.
In Interim Order PO-1891-I, Senior Adjudicator David Goodis provided the following analysis
of previous decisions of the Commissioner’s office respecting the application of section 15(a) to
records dealing with discussions between representatives of the Province of Ontario and their
federal, provincial and territorial counterparts. He stated:
In previous orders, this office has found that disclosure of records generated in the
context of discussions among the federal government and/or its provincial and
territorial counterparts could reasonably be expected to prejudice the conduct of
intergovernmental relations within the meaning of section 15(a) of the Act. For
- 6 -
[IPC Order PO-2247/February 27, 2004]
example, in Order P-1137, Assistant Commissioner Tom Mitchinson found that
this exemption applied to records relating to a conference of provincial and
territorial deputy ministers of health, concerning the question of financial
assistance to persons infected with HIV via the blood system. In that order, the
Assistant Commissioner stated:
These records consist of communications exchanged directly
between Ontario and the other provinces and/or territories, as well
as correspondence between these other parties which was copied to
Ontario. Some of these records were created by the Ministry for
internal use and incorporate the information received from the
other provinces and/or territories.
As part of its submissions, the Ministry has provided an overview
of the context in which the [Multi-Provincial and Territorial
Assistance Plan (MPTAP)] discussions between the provinces and
territories were conducted. The Ministry indicates that, from the
outset, the provinces and territories were encouraged to discuss any
issues in an open and candid manner. The Ministry states that
these discussions and supporting documentation were shared on an
explicitly confidential basis.
It is the position of the Ministry that disclosure of such information
could reasonably be expected to inhibit any further co-operative
ventures among the provinces and territories, not only with respect
to MPTAP, but also with respect to other issues requiring national
cooperation and consultation . . .
All of the provinces and territories which submitted representations
support the Ministry’s characterization of the discussions and
negotiations leading to the development of the MPTAP, their
expectations of confidentiality with respect to communications
provided to Ontario and their concerns about the reasonable
expectation of prejudice to their relationships with Ontario that
could occur upon disclosure of the records.
Senior Adjudicator Goodis then went on to discuss the application of the section 15(a) exemption
by Assistant Commissioner Mitchinson in Order P-1137 to records relating to a
provincial/territorial ministers’ meeting on social services issues. In that decision, the Assistant
Commissioner found:
In support of its position with respect to both sections 15(a) and (b), the
Ministry’s representations provide an overview of the context in which
discussions between provinces and territories are conducted at P/T Ministers’
Meetings. The Ministry indicates that disclosure of the type of records which are
at issue in this appeal would call into question long standing practices and
- 7 -
[IPC Order PO-2247/February 27, 2004]
understandings reached among the provinces and territories concerning meetings,
exchange of information, preparation of common briefing notes, and exchange of
documents. The Ministry states that supporting documentation prepared for P/T
Ministers’ Meetings is always shared on a confidential basis. According to the
Ministry, if the records at issue in this appeal are disclosed, this would severely
prejudice relations with other provincial and territorial governments and inhibit
Ontario’s ability to participate in future interprovincial/territorial meetings and
exchanges of information and documents.
. . . . .
The Ministry’s representations point out that all of the records concern relations
between the Ontario government and its provincial, territorial and federal
counterparts. I agree, and find that the first requirement of the section 15(a)
exemption claim has been established.
The Ministry also submits that the process of P/T Ministers’ Meetings has
allowed the development of practices that encourage interprovincial/territorial cooperation
and information-sharing which benefits all participants. According to
the Ministry, the understandings and practices have helped to generate a sense of
confidence and trust among provincial and territorial officials and Ministers
which has gone beyond the P/T Ministers’ Meetings themselves, and resulted in
the opening of channels of communication which operate throughout the year.
The Ministry has provided detailed representations regarding the context of each
record and reasons why it feels that prejudice to the conduct of intergovernmental
relations would result from disclosure. Having reviewed these representations
and the records, I find that the Ministry has provided sufficient evidence to
establish that disclosure of the exempt portions of Records 18, 19, 22, 30 and 40,
and all of Records 21, 28, 29, 31, 32, 34, 40, 44, 45, 50 and 51 could give rise to
a reasonable expectation of prejudice to the conduct of intergovernmental
relations. Therefore, I find that these records qualify for exemption under section
15(a) of the Act.
Senior Adjudicator Goodis concluded his discussion of section 15(a) as follows:
Based on the approach taken to section 15(a) in similar circumstances in these
earlier orders, as well as the representations of the Ministry and the records
themselves, I am satisfied that disclosure of the vast majority of the records at
issue under section 15 could reasonably be expected to prejudice the conduct of
intergovernmental relations by the Government of Ontario. In my view, the
Ministry has provided detailed and convincing evidence to establish a reasonable
expectation of probable harm, under section 15(a), to the conduct of relations
between the Government of Ontario and the federal government and the other
provinces and territories participating in discussions concerning amendments to
the hate crime provisions of the Criminal Code. I am satisfied that disclosure of
- 8 -
[IPC Order PO-2247/February 27, 2004]
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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 27, 2004
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Type
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Order
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