SCC Says "Policy Options" Is "Advice" – and Exempt From Access to Information Requests

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SCC Says “Policy Options” Is “Advice” – and Exempt From Access to Information Requests

May 12, 2014

By David Fraser, at McInnes Cooper

On May 9, 2014 the Supreme Court of Canada decided that policy options that public servants provided to the provincial government are exempt from disclosure as “advice or recommendations” under freedom of information legislation.

The SCC’s decision is based on the interpretation of the words “advice or recommendations” for the purposes of exemption from disclosure in Ontario’s freedom of information and protection of privacy legislation. Since laws in all four Atlantic Provinces include similar – though differently-worded – exemptions, the SCC’s decision will likely influence how public bodies and courts beyond those in Ontario will interpret information access requests.

In the particular case, Ontario’s Ministry of Finance amended a provincial statute. John Doe made an access to information request under Ontario’s provincial freedom of information legislation, seeking the Ministry’s records about certain issues related to the amendments. Under the legislation, “advice or recommendations” are exempt from disclosure. The Ministry refused disclosure on the basis the records were “advice or recommendations” of a public servant. The Supreme Court of Canada agreed with the Ministry:

“Advice” vs. “Recommendations”. “Advice or recommendations” does not mean advice on a suggested or recommended course of action. The words “advice” and “recommendations” are distinct and don’t have the same meaning: “advice” is intended to be broader than simple “recommendations”.
Policy Options. The records present public servants’ opinions about alternative effective dates of legislative amendments and served the Ministry in deciding between the dates, and are thus policy options.
“Advice”. These policy options, whether communicated or not to anyone, are “advice” within the meaning of the relevant section of the legislation – and are exempt from disclosure.

Access to information laws are intended to force transparency on government operations. The SCC’s decision, however, will likely broaden the scope of information exempted from public access – and shield government policy development and decision-making from public scrutiny.

Click here to read the SCC’s decision in John Doe v. Ontario (Finance), 2014 SCC 36.

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Privacy Law Team to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2014. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at publications@mcinnescooper.com to request our consent.

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