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P-1623

Document		P-1623


File #		P_9800122


Institution/HIC		Management Board of Cabinet


Summary		NATURE OF THE APPEAL: Management Board of Cabinet (the Board) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to records relating to the decision to pursue the privatization of services presently provided by the Ontario Realty Corporation. In particular, the requester sought access to business plans or financial analyses developed internally by senior management or externally by a consultant or consulting firm, related to the decision to privatize. In November, 1995, the government announced a major initiative designed to reduce the costs of internal administration within the Ontario Public Service over the next two years. In this regard, Management Board Secretariat (MBS) produced a framework entitled "Alternative Service Delivery" (ASD) which set out a number of options for the delivery of services traditionally carried out directly by civil servants. The records requested relate to ASD options for services presently provided by the Ontario Realty Corporation. The Board located records responsive to the request and denied access on the basis that section 12(1) (cabinet records) applied. The Board also indicated that section 65(6) (jurisdiction) applied to some of the records. The requester (now the appellant) appealed the decision to deny access. During mediation, the Board withdrew its reliance upon section 65(6) of the Act and granted access to four records. The records that remain at issue consist of 15 records listed and described in an Index of Records prepared by the Board and provided to the appellant and this office. The sole issue to be determined in this appeal is the application of section 12(1) to the records. This office provided a Notice of Inquiry to the appellant and the Board. Representations were received from both parties. DISCUSSION: CABINET RECORDS The Board has claimed the application of sections 12(1)(a), (b) and (c) of the Act , as well as the introductory wording contained in the section, to the records at issue. Section 12(1) provides, in part, as follows: 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. Section 12(1)(a) The Board claims that Records 5 and 9 are exempt from disclosure under section 12(1)(a) because they reveal minutes which contain notification of a Cabinet decision. The Board states that all Alternative Service Delivery initiatives require approval first from the Board before being ratified by Cabinet. I have carefully reviewed Records 5 and 9 and I agree that they form parts of minutes of meetings of Management Board of Cabinet, and disclosure would reveal a decision of the Executive Council or its committees. I find that Records 5 and 9 are properly exempt from disclosure under section 12(1)(a) of the Act . Sections 12(1)(b) and (c) In order for the records to qualify under section 12(1)(b), the Board must satisfy two criteria: 1. the record must contain policy options or recommendations, and 2. the record must have been submitted or prepared for submission to the Executive Council or one of its committees. [Order 73] Previous orders have established the following standard for considering records subject to a section 12(1)(c) exemption claim. For a record to qualify for exemption under this section, the Board must establish that: 1. The record contains background explanations or analyses of problems to be considered; and 2. The record itself was submitted or prepared for submission to the Executive Council or its committees for their consideration in making decisions; and 3. The matter at issue is actively under consideration or is clearly scheduled for consideration by Cabinet or one of is committees; and 4. The decision at issue has not been made or implemented. [my emphasis added here] [Order 60] Having considered this test and the wording of the section, it is my view that it would be more appropriate to restate the section 12(1)(c) test as follows: For a record to qualify under section 12(1)(c), the Board must establish that: 1. the record contains background explanations or analyses of problems to be considered: and 2. the record itself was submitted or prepared for submission to the Executive Council or its committees for their consideration in making decisions; and 3. the matter at issue is actively under consideration or is clearly scheduled for consideration by Cabinet or one of its committees; and 4. the decision at issue either (i) has not been made or (ii) has been made but not implemented. The Board submits that Records 1, 2, 4, 6, 7, 9, 10, 11, 12, 15 and 17 are exempt under sections 12(1)(b) and (c). The Board submits that these records contain policy options and recommendations submitted or prepared for submission to the Executive Council or its committees. The Board states that the records were prepared at various stages in the process, beginning with the business cases and ending with the approval of the alternative service delivery on November 4, 1997. The Board submits that Records 13 and 14 are also exempt under section 12(1)(b) as they contain submissions or recommendations about restructuring, down


Legislation		FIPPA 12(1)(a) 12(1)(b) 12(1)(c)


Subject Index		background explanations or analyses of problems meeting minutes opinions or recommendations


Signed by		Mumtaz Jiwan


Published		Oct 08, 1998


Type		Order


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