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Document
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PO-1824
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File #
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PA-000002-2
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Institution/HIC
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Ministry of Northern Development and Mines
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Summary
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NATURE OF THE APPEAL: The Ministry of Northern Developments and Mines (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to the following: all correspondence, memoranda, briefing notes, analyses, e-mails and commentaries received by the [Ministry] regarding the development of the Mining Act Part VII Regulation and Mine Rehabilitation Code, between January, 1996 and the date of the receipt of this request from the following Ontario government agencies: the Ministry of the Environment (and Energy); the Ministry of Natural Resources; the Ministry of Labour; the Ministry of Finance. The Ministry located 19 responsive records comprising 57 pages. These records consist of letters, memoranda, notes, e-mail messages and facsimile transmissions. The Ministry granted full access to ten records, partial access to one record, and denied access to the remaining eight records. The Ministry claimed section 13(1) (advice and recommendations) as the basis for exempting all remaining records or partial records, and section 17(1) (third party information) as an additional exemption claim for Records 29 and 57. The requester (now the appellant) appealed the Ministry's decision, and also claimed that there is a compelling public interest in the disclosure of the records pursuant to section 23 of the Act . During mediation, the appellant agreed not to pursue a number of issues, and narrowed the scope of his request to: The statement of the Ministry of Finance of its position on the issue of financial assurances for mine closures. Things that indicate that the Ministry of Finance has a problem with the way that [the Ministry] is approaching the question of financial assurances for mine closure. The appellant is seeking "clear expressions of concern" by the Ministry of Finance on this issue. As a result, six records remain at issue in this appeal: Records 2, 6-7, 29, 30-31, 48 and 57. All of these records deal with information received by the Ministry from the Ministry of Finance (Finance). I sent a Notice of Inquiry initially to the Ministry and three organizations mentioned in certain records, whose interests might be affected by the outcome of this appeal (the affected parties). Only the Ministry responded. I then sent the Notice to the appellant, along with the non-confidential portion of the Ministry's representations. The appellant submitted representations in response. RECORDS: The remaining six records consist of memoranda, e-mail messages and a letter, all addressed to the Ministry from Finance. DISCUSSION: Advice and Recommendations Section 13(1) reads as follows: A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution. Section 13(1) is subject to the exceptions listed in section 13(2). A number of previous orders have established that advice or recommendations for the purpose of section 13(1) must contain more than mere information. To qualify as "advice" or "recommendations", the information contained in the records must relate to a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process [Order P-363, upheld on judicial review in Ontario (Human Rights Commission) v. Ontario (Information and Privacy Commissioner) , Toronto Doc. 721/92 (Ont. Div. Ct.)]. Information that would permit the drawing of accurate inferences as to the nature of the actual advice or recommendation given also qualifies for exemption under section 13(1) of the Act (Order P-233). In Order 94, former Commissioner Sidney B. Linden commented on the purpose and scope of this exemption. He stated that it "... purports to protect the free-flow of advice and recommendations within the deliberative process of government decision-making and policy-making". The Ministry explains that the records were produced in the context of recent changes to the Mining Act and the accompanying regulation dealing with financial assurances. These changes came into force on June 30, 2000. Under the regulation, mine operators must file a mine closure plan with the Ministry, accompanied by financial assurances with respect to rehabilitation of a mine site if an operator is unable to complete the mine closure plan. In developing this new regulation, the Ministry consulted with Finance, and the records at issue in this appeal all relate to Finance's position on the issue of modified financial assurances for mine closures. As far as Record 6-7 is concerned, the Ministry states that it is clearly marked as a "draft" memorandum from the Deputy Minister of Finance to the Deputy Minister of Northern Development and Mines. The fax cover page attached to this record, which has been disclosed to the appellant, makes it clear that the record is in draft form, which has not yet been approved by senior officials at Finance. The Ministry submits: This record, in its entirety, very clearly constitutes a recommended reply to [the Ministry] that the ADM [Assistant Deputy Minister] and Deputy [Minister] of Finance can accept or reject as part of the deliberative process. This Office has previously determined that "draft" documents do not inherently constitute advice and recommendations (see, for example, Order P-493). In Order P-324, I made the following statement on the question of draft documents: In my view, it is possible for a draft document prepared by a public servant to qualify as "advice" under section 13(1), provided that the institution can establish that the draft contains a suggested course of action which will ultimately be accepted or rejected by the recipient during the deliberative process (Order 161). I find Record 6-7 meets this requirement. It consists of a recommended course of action that may or may not be taken by Finance in providing its advice to the Ministry on the issue of financial assura
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Legislation
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Oct 17, 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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