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Document
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P-22
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File #
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Appeal 880008
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Institution/HIC
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Management Board of Cabinet This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act, 1987 (the "Act") which gives a person who has made a request for access to a record under subsection 24(1) of t
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Summary
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Order are as follows: On January 6, 1988, the Management Board of Cabinet (the "institution") received a request from the appellant for: "All records pertaining to the decision to extend government financing to separate schools from June, 1983 to June, 1985 including: - reviews of the financial, political, educational and social impact of extension of government financing; and - any polls which included a question or questions dealing with extension of (sic) separate schools; and - correspondence with other ministries". On January 28, 1988, the institution advised the requester by letter that it did not have any polls in its custody which included a question or questions dealing with the extension of funding to separate schools. In addition, the institution informed the requester that it did not have any records containing reviews of the political, educational and social impact of extension of financing. Accordingly, access was denied on the basis that the records did not exist. The institution further stated that the request for correspondence with other ministries had been transferred to the Ministry of Education pursuant to section 25 of the Act , and the portion of the request concerning financial impact was transferred in part to the Ministry of Treasury and Economics pursuant to the same section of the Act . Access to the institution's record concerning the financial impact of extension of government financing was denied under subsection 12(1)(e) of the Act . On February 7, 1988, the requester wrote to me appealing the institution's denial of access. Notice of the appeal was sent to the institution. Between February 7, 1988 and April 13, 1988, the records in question were examined by representatives of my office, and efforts were made by an Appeals Officer to settle the case. By April 13, 1988, it was clear that settlement was not possible, and I gave notice on that date to the institution and the appellant that I was conducting an inquiry to review the decision of the head. Representations were invited from each party. On May 5, 1988, written representations were received from the institution. By letters dated June 10, 1988 and June 13, 1988 to the institution and appellant respectively, I advised the parties that an oral inquiry would be held in order to further address the issues raised in the appeal. On June 30, 1988, I held an oral inquiry which was attended by the appellant, his counsel, and a representative for the institution. It should be noted at the outset that the purpose of the Act as defined in subsection 1(a) is to provide a right of access to information under the control of institutions in accordance with the principles that information should be available to the public and that necessary exemptions from the right of access should be limited and specific. Further, section 53 of the Act provides that the burden of proof that the record or a part of the record falls within one of the specified exemptions in the Act lies with the head. The issues arising in this appeal are as follows: A. Whether the record in question falls within the subsection 12(1)(e) mandatory exemption. B. Whether the institution has a duty under subsection 12(2)(b) to seek the consent of the Executive Council before denying access to a record where an exemption is being claimed under subsection 12(1). C. Whether the severability requirements of subsection 10(2) apply to the record in question. ISSUE A: Whether the record in question falls within the subsection 12(1)(e) mandatory exemption. Subsection 12(1)(e) reads as follows: A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of an Executive Council or its committees, including ... (e) a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committees, or are the subject of consultations among ministers relating to government policy;... (emphasis added) The institution submits that the record in question, dated June 29, 1985, is a document prepared to brief the Chairman of Management Board of Cabinet on matters that were proposed to be brought before Management Board, a committee of Cabinet, and the Executive Council. In the institution's view, the record contains matters that were the subject of consultation between the Chairman of Management Board and the Minister of Education relating to a government decision and the formulation of government policy. These matters were in fact brought before the Management Board of Cabinet on September 10, 1985, and it is acknowledged by the institution that the record in question will not be used again. The institution argues that disclosure of the record at this time would reveal the substance of deliberations of Management Board with respect to the financial implications of the extension of separate school funding, and as such falls within the definition of Cabinet records under subsection 12(1) of the Act . It is further submitted that disclosure would reveal the government's decision with respect to the timing for review of the financial implications of the decision by Management Board, and as such the record should be protected from release. The appellant submits that the exemption provided by subsection 12(1)(e) is temporary in nature and expires after the record has been presented and dealt with by Cabinet. In the opinion of the appellant, the use of the present tense in subsection 12(1)(e) precludes its application to a record which has already been presented to Cabinet. In his view, had the Legislature intended the exemption to continue after consideration by Cabinet, the proper tense would have been used. I accept the appellant's argument, and find that the record at issue does not fall within the exemption provided by subsection 12(1)(e). The use of the present tense in the subsection precludes its application to a record that has already been presented to and
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Legislation
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FIPPA
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10(2)
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12(1)
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12(1)(e)
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12(2)(b)
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Subject Index
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Signed by
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Sidney Linden
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Published
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Oct 21, 1988
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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