In a recent decision, the Ontario Court of Appeal has permitted Ontario’s Minister of Finance to withhold draft policy option memos from disclosure in response to an access to information request. The requester sought records relating to the decision of the Ministry of Finance to proposed amendments to section 2 of the Corporations Tax Act (Ontario) that were intended to be retroactive in effect. The result of the retroactive amendment was to close a perceived tax loophole.
Pursuant to subsection 13(1) of the Freedom of Information and Protection of Privacy Act (Ontario) (“FIPPA”), the Minister of Finance had discretion to refuse to disclose documents if (among other things) the disclosure would reveal advice or recommendations of a public servant.
The records in issue were prepared by civil servants and formed part of the internal budget briefing process of the Ministry of Finance at the level of the Assistant Deputy Minister, Deputy Minister and Minister of Finance. The adjudicator of the Information and Privacy Commissioner took the position that in order to qualify as advice or recommendations, a record must reveal a suggested course of action that will ultimately be accepted or rejected by the recipient of the record during a deliberative process. Under this formulation of the test for the application of subsection 13(1) of FIPPA, the advice must set out a course of action and be communicated to the person who is entitled to make the decision in the deliberative process. The Divisional Court found the adjudicator’s analysis was reasonable.
The Ontario Court of Appeal disagreed. The court held that the adjudicator’s approach to subsection 13(1) of FIPPA was too narrow. In particular, the court held that in order for section 13(1) to apply:
It is not necessary to demonstrate that the documents are final versions or that the documents were delivered to the final decision-maker.
The discretion to withhold the record is available when the information would permit the drawing of accurate inferences regarding the nature of the advice and recommendations and the documents are part of the deliberative process.
The records need not set out a single course of action that is to be adopted or rejected by the decision-maker.