RECORDS:

The records at issue consist of a large number of e-mails, correspondence, memoranda, reports and other documents relating to the requests.  The appellant and this office have been provided with a copy of an index prepared by the Ministry setting out the records, and parts of records, remaining in dispute.

DISCUSSION:

ADVICE OR RECOMMENDATIONS

General Principles

The Ministry has applied the discretionary exemption in section 13(1) to a significant number of the records, or parts of records.  Section 13(1) states:

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.

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”.  Put another way, the purpose of the exemption is to ensure that:

. . . persons employed in the public service are able to advise and make recommendations freely and frankly, and to preserve the head’s ability to take actions and make decisions without unfair pressure [Orders 24, P-1363 and P-1690].

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 [Orders 118, P-348, P-363, upheld on judicial review in Ontario (Human Rights Commission) v. Ontario (Information and Privacy Commissioner) (March 25, 1994), Toronto Doc. 721/92 (Ont. Div. Ct.); Order P-883, upheld on judicial review in Ontario (Minister of Consumer and Commercial Relations) v. Ontario (Information and Privacy Commissioner) (December 21, 1995), Toronto Doc. 220/95 (Ont. Div. Ct.), leave to appeal refused [1996] O.J. No. 1838 (C.A.)].

In Order P-434 Assistant Commissioner Tom Mitchinson made the following comments on the “deliberative process”:

In my view, the deliberative process of government decision-making and policy-making referred to by Commissioner Linden in Order 94 does not extend to communications between public servants which relate exclusively to matters which have no relation to the actual business of the Ministry.  The pages of the record which have been exempt[ed] by the Ministry under section 13(1) [of the provincial Act] in this appeal all deal with a human resource issue involving the appellant and, in my view, to find that this type of information is exemptible under section 13(1) of the Act would be to extend the exemption beyond its purpose and intent.

This approach has been applied in several subsequent orders of this office (Orders P-1147 and P-1299).

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. [Orders 94, P-233, M-847, P-1709]

The Ministry’s representations

The Ministry has not provided submissions on the application of section 13(1) to the individual records and parts of records remaining at issue.  Rather, it has simply restated the principles set forth above and included the following general statement concerning the application of section 13(1).  It argues that:

In this case, the exemption has been applied to portion[s] of a variety of records, such as emails, briefing notes, hand written notes and minutes/notes of meeting[s] handwritten and electronically created.  An examination of each record shows that it contains advice/recommendation from an employee of the Ministry, its legal counsel or an outside consultant.  This advice or recommendation relates to the development of a Ministry position and course of action relating to the blue racer snake and the proposed quarry development.  The later records provide the type of advice or recommendations within the context of a hearing before the Ontario Municipal Board.  In this regard, the records speak for themselves and clearly set out advice or recommendations.  Accordingly, it is the position of the Ministry that records for which the Ministry has claimed the exemption fall within the ambit of subsection 13(1) when the principles outlined above are applied.

The appellant’s representations

The appellant takes issue with the submissions of the Ministry in a number of ways.  It first points out that the Ministry has failed to consider the specific questions set out in the Notice of Inquiry as they relate to the specific records, and parts of records, to which it has applied section 13(1).  The appellant is also of the view that the Ministry has not set out in “sufficient specificity” its position with respect to the disclosure of the records and that it has been inconsistent in its application of the exemption.

The appellant argues that she has been disadvantaged in not being provided with more information on the Ministry’s position with respect to the application of section 13(1) to a number of records; it is not possible for her to determine why the Ministry has claimed the exemption applies to specific records. 

The appellant points out that, the section 13(1) exemption “was not intended to exempt all communications between public servants (or, by extension, communications between public servants and consultants retained by the Ministry), even though they may be viewed broadly as advice or recommendations. 

The appellant also relies on the mandatory exceptions to the section 13(1) exemption which are set out in sections 13(2)(d) and (h), which read:

Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record that contains,

(d)       an environmental impact statement or similar record;

(h)        a report containing the results of field research undertaken before the formulation of a policy proposal;

Findings

First request

The Ministry’s representations are very general in nature, and provide me with little assistance in applying the exemption to specific records.  However, I have carefully reviewed all of the records at issue under this exemption and I make the following findings, by category.

Briefing Note

Record 3 is a briefing note prepared by Ministry staff on March 15, 2001.  This note outlines the Ministry’s position with respect to the manner in which it intends to present evidence at the upcoming hearing before the Ontario Municipal Board (the OMB).  In my view, this record qualifies for exemption under section 13(1) as it contains specific advice to a decision maker within the Ministry regarding the presentation of its evidence at the hearing. 

Emails

I find that Record 128 (which is identical to Record 226) is exempt under section 13(1) as it contains details of a communications plan to be undertaken by the Ministry and suggests a course of action to be followed.  Similarly, Records 275-276, 290 and 291-292 contain specific advice as to how the Ministry will approach a specific problem.  As a result, I find that these records qualify for exemption under section 13(1).

I do not, however, agree with the Ministry’s contention that the remainder of the email messages to which it has applied the section 13(1) exemption qualify under that section.  Records 11, 79, 81, 231-234, 288, 299 and 304 express the “concerns” of the authors about the contents of other records or make suggestions for the amendment of drafted documents but do not contain specific “advice or recommendations” within the meaning of section 13(1).  In addition, I find that Records 26, 94, 95, 96 and 293 do not contain any information which meets the criteria expressed above for exemption under section 13(1).  As no other exemptions have been claimed and no mandatory exemptions apply to these records, I will order that they be disclosed to the appellant.

Notes

Records 86 (handwritten notes) and 87-88 contain specific advice and recommendations concerning the Ministry’s conduct and presentation of its evidence at the hearing before the OMB which is discussed in Record 3.  For the same reasons expressed in my discussion of Record 3, I also find that these records qualify for exemption under section 13(1).

Record 286 however, does not contain or reveal any specific advice or recommendations and is not exempt under section 13(1). 

Report

Record 108-113 is a critique prepared by a biologist retained by the Ministry of a scientific study undertaken by a biologist retained by the operator of the quarries on Pelee Island.  The paper makes a number of comments and criticisms of the research undertaken by the operator’s biologist but does not contain any specific advice or recommendations regarding a course of action to be followed by the Ministry.  Rather, it simply comments on the information gathered and analyzed by the biologist in order to inform the Ministry as to how the conclusions reached in the paper may be rebutted.  I find, accordingly, that the section 13(1) exemption has no application to Record 108-113.

Agenda/Minutes of Meetings

The undisclosed portions of Record 133 describe in detail the results of a “strategy session” involving Ministry staff regarding its approach to the presentation of its evidence and arguments before the OMB.  I find that the undisclosed portions of Record 133 describe in detail the recommended course of action to be followed by the Ministry and that this information qualifies for exemption under section 13(1).

Records 178-180 are minutes of a meeting held on January 20, 1992 by Ministry staff for the purpose of canvassing a number of options and determining a course of action to be undertaken.  I find that this record sets forth a suggested course of action and that this information qualifies as “advice or recommendations” within the meaning of section 13(1).

Records 239 to 242 represent handwritten notes taken at the same meeting of Ministry staff on January 20, 1992.  Similarly, as the information contained in this document is substantially the same as that in Records 178-180 and 184-186, I find that they also qualify for exemption under section 13(1).

Record 175 is a letter to the Minister dated January 21, 1992 reporting on the results of the meeting on January 20, 1992.  I find that this record also is subject to the section 13(1) exemption as it contains a specific course of action that was recommended by the staff persons attending the meeting.

By way of summary, I find that the undisclosed portions of Records 3, 11, 86-88, 128, 133, 175, 178-180, 184-186, 226 and 239-242 are exempt from disclosure under section 13(1).  I find that none of the information contained in these records falls within the categories of information listed in the exceptions to section 13(1) which are included in sections 13(2) or (3).

Records 26, 79, 81, 94-96, 108-113 and 231-234 do not qualify for exemption under this section.  As no other exemptions have been claimed for Records 26, 79, 81, 94-96 and 231-234 and no mandatory exemptions apply to them, I will order that they be disclosed to the appellant.

Second request

The undisclosed portion of Record 75, a handwritten memorandum dated December 23, 1992, contains a suggested course of action to be undertaken by the Ministry with respect to an environmental issue.  Accordingly, I find that this portion of Record 75, consisting only of the final sentence, is exempt from disclosure under section 13(1).

The undisclosed portion of Record 77 does not, however, contain advice or recommendations on a specific course of action.  Rather, it simply describes a set of facts relating to the proposed dock facility.  This record does not qualify for exemption under section 13(1).

The sentence at the bottom of Record 107 which begins “District actively. . .” contains a suggested course of action to be undertaken by the Ministry and thereby qualifies for exemption under section 13(1).

Page 149 contains a lengthy outline of a suggested course of action to be followed by the Ministry.  The memorandum includes very detailed recommendations on the manner in which the Ministry ought to proceed in its dealings with the operator of the quarry.  I find that this information qualifies for exemption under section 13(1).

The Ministry has claimed the application of section 13(1) to the second last paragraph of Record 150, which is the same as Record 184.  I find that it does not contain “advice or recommendations” within the meaning of section 13(1) and will order that these records be disclosed.

Record 152 is a memorandum setting out the results of a telephone conference call between those Ministry staff involved in the Pelee Island quarry discussions.  The Ministry has claimed the application of section 13(1) to that portion of the record that outlines the specific course of action to be followed by the Ministry in the months following the conference call.  I find that this information qualifies as “advice or recommendations” and is exempt from disclosure under section 13(1).

Record 180-182 is a summary of the comments and suggestions regarding the “Blue Racer Briefing Note” which were made by Ministry staff in late 1997 and early 1998.  I find that this record sets forth the suggested course of action to be undertaken by the Ministry according to each of the individuals who provided comments.  This document qualifies for exemption under section 13(1).

The undisclosed portion of Record 186 contains very explicit instructions from one Ministry staff person to another regarding a specific course of action to be followed.  I find that this record qualifies for exemption under section 13(1).

The undisclosed information contained in Record 189-190 also outlines a recommended course of action to be followed by the Ministry.  I find that this information also qualifies for exemption under section 13(1).

Records 207-208 contain the same information as Records 215-216.  Again, the undisclosed portions of these documents set out a specific set of recommendations for a course of action to be undertaken by the Ministry.  I find that this information qualifies for exemption under section 13(1).

Similarly, Records 221-222 and 223-224 contain detailed recommendations of a suggested course of action to be undertaken by the Ministry.  I find that these records also qualify for exemption under section 13(1).

In summary, I find that the final sentence of Record 75 and the undisclosed portions of Records 107, 149, 152, 180-182, 186, 189-190, 207-208, 215-216, 221-222 and 223-224 qualify for exemption under section 13(1).  Records 77, 150 and 184 are not exempt under this section, however.

ECONOMIC AND OTHER INTERESTS

General principles

The Ministry has claimed the application of the discretionary exemption in section 18(1)(e) to a number of the records, and portions of records still at issue.  This section reads:

A head may refuse to disclose a record that contains,

positions, plans, procedures, criteria or instructions to be applied to any negotiations carried on or to be carried on by or on behalf of an institution or the Government of Ontario;

In order to qualify for exemption under subsection 18(1)(e), the Ministry must establish the following:

1.         the record must contain positions, plans, procedures, criteria or instructions; and

2.         the positions, plans, procedures, criteria or instructions must be intended to be applied to negotiations; and

3.         the negotiations must be carried on currently, or will be carried on in the future; and

4.         the negotiations must be conducted by or on behalf of the Government of Ontario or an institution.

[Order P-219]

The Ministry’s initial representations

The Ministry submits that:

Subsection 18(1)(e) applies to records that relate to ongoing or future events.  The provision is not wide enough to encompass negotiations that have not commenced or that are not contemplated.  A ‘vague possibility’ of future negotiations is not sufficient. 

.  .  .  .  .

In this instance there are more than a vague possibility of negotiations.  This matter is to go to the Ontario Municipal Board.  As in any hearing, negotiations will continue to settle the matter or narrow the issue before the board.  The negotiations will be based on the strength of the evidence relating to the presence of the snake.  The records at issue are comments on the strength of the Ministry’s position, positions of the Ministry in term[s] of steps necessary to protect the snake and the proposed quarry development or the Ministry’s position on evidence brought forward by the requester.  They are or will form the position that the Ministry will take in the negotiation to settle the matter or narrow the issues.  The Ministry represents the Government of Ontario.  Accordingly, it is the position of the Ministry that the records clearly fall within section 18(1)(e) of the Act.

The appellant’s representations

The appellant submits that:

. . . the onus is on the Ministry to demonstrate (among other things) that the records contain ‘positions, plans, procedures, criteria or instructions’.  ‘Plan’ as used in section 18(1)(e), has been defined previous IPC orders as ‘a formulated and especially detailed method by which a thing is to be done; a designer scheme’ and the other items in section 18(1)(e) have been considered ‘similarly referable to pre-determined courses of action or ways of proceeding.’  (Orders MO-1199-F, MO-1264, PO-1977)  It is submitted that the records which contain information, comments or recommendations, without also including a detailed plan or method of proceeding, do not qualify under the section 18(1)(e) exemption.  (Order P-603)  According to the Ministry’s submissions, the records in question contain comment, evaluations or information about the Ministry’s positions but are not said to contain any detailed plan or course of action, so as to qualify under section 18(1)(e).

The criteria given on page 19 of the Notice of Inquiry for this section indicates that the negotiations must be carried on currently or will be carried on in the future.

There are several documents that are affected by this section according to the index.  The majority are dated in 1997 and 1998, in the period leading up to a decision to seek to amend the site plan to take away the rights of the licensee.  Some of the records date back to 1993 and 1994.  These records in our view do not satisfy the requirement of currency or future action.

The appellant also suggests that the exception in section 18(2) relating to “records that contain the results of product or environmental testing carried out by or on behalf of an institution” may apply to some of the records or parts of records remaining at issue.

The Ministry’s reply representations

Section 19 of the Act reads:

A head may refuse to disclose a record that is subject to solicitor‑client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.

Section 19 contains two branches.  Branch 1 includes two common law privileges:

•                    solicitor-client communication privilege;  and

•                    litigation privilege. 

Branch 2 contains two analogous statutory privileges that are available in the context of Crown counsel giving legal advice or conducting litigation.

Here, the Ministry relies on solicitor-client communication privilege under both branches.  The Ministry does not rely on litigation privilege under either branch.  I will first consider the application of common law solicitor-client communication privilege under Branch 1.

Solicitor-client communication privilege under Branch 1

General principles

Solicitor-client communication privilege protects direct communications of a confidential nature between a solicitor and client, or their agents or employees, made for the purpose of obtaining or giving professional legal advice [Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 (S.C.C.)].

The rationale for this privilege is to ensure that a client may confide in his or her lawyer on a legal matter without reservation [Order P-1551].

The privilege applies to “a continuum of communications” between a solicitor and client:

. . . Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach [Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.)].

For a record to qualify for exemption under sections 17(1)(a), (b) or (c), the Ministry must satisfy each part of the following three-part test:

1.         the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information;  and

2.         the information must have been supplied to the institution in confidence, either implicitly or explicitly;  and

3.         the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in (a), (b) or (c) of subsection 17(1) will occur.

[Orders 36, P-373, M-29 and M-37]

Where a requester seeks personal information of another individual, section 21(1) of the Act prohibits an institution from releasing this information unless one of the exceptions in paragraphs (a) through (f) of section 21(1) applies.  The only exception that might apply in the present circumstances is section 21(1)(f), which reads:

A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,

if the disclosure does not constitute an unjustified invasion of personal privacy.

Sections 21(2) and (3) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of the personal privacy of the individual to whom the information relates.  Section 21(2) provides some criteria for the institution to consider in making this determination.  Section 21(3) lists the types of information the disclosure of which is presumed to constitute an unjustified invasion of personal privacy.  Section 21(4) refers to certain types of information the disclosure of which does not constitute an unjustified invasion of personal privacy.  The Divisional Court has stated that once a presumption against disclosure has been established, it cannot be rebutted by either one or a combination of the factors set out in 21(2) [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767].

A section 21(3) presumption can be overcome if the personal information at issue falls under section 21(4) of the Act or if a finding is made under section 23 of the Act that a compelling public interest exists in the disclosure of the record in which the personal information is contained which clearly outweighs the purpose of the section 21 exemption.[Order PO-1764]

If none of the presumptions in section 21(3) applies, the Ministry must consider the application of the factors listed in section 21(2), as well as all other considerations that are relevant in the circumstances of the case.

(1) A head may refuse to disclose a record where the disclosure could reasonably be expected to lead to the killing, capturing, injuring or harassment of fish or wildlife that belong to a species at risk or to interference with the habitat of fish or wildlife that belong to a species at risk.

(2) In this section.

“fish” and “wildlife” have the same meanings as in the Fish and Wildlife Conservation Act, 1997

This is the first appeal in which this office has considered the interpretation and application of this exemption.

The institution must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm”.  Evidence amounting to speculation of possible harm is not sufficient [Order PO-1747; Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)].

The institution must provide evidence to establish a reasonable basis for believing that endangerment will result from disclosure.  In other words, the institution must demonstrate that the reasons for resisting disclosure are not frivolous or exaggerated [Order PO-1747; Ontario (Information and Privacy Commissioner, Inquiry Officer) v. Ontario (Minister of Labour, Office of the Worker Advisor) (1999), 46 O.R. (3d) 395 (C.A.)].

ORDER:

1.                  I uphold the Ministry’s decision to deny access to Records 3, 6, 7, 11, 35, 36, 40, 46, 48, the second severance in Record 77, Records 86-88, 128, 130, 133, 175, 178-180, 184-186, 202-204, 226, 239-242, 275-276, 290, 291-292, 334, 335-336, 337-338, 339-340, 360, 369-370, 371, 374, 376, 377, 378, 409, 410, 412, 414, 420, 421, 436, 437-438, 439, 440 and 441 from Request A-2001-00057 and Records 9, 10-15, 21, 22-23, 24, 26-28, 34, 37, 38-45, 46, 47, 49-50, 52-53, 55, 56, 58-60, 70, the final sentence of Record 75, Records 80, 86-87, 88-90, 96, 107, 111, 115, 117, 135, 140-141, 142, 143, 149, 152, 180-182, 186, 189-190, 207-208, 215-216, 221-222 and 223-224 from Request A-2001-00058.

2.         I order the Ministry to disclose Records 26, 64, 65, 68-71, 77 (with the exception of the second severance, Records 79, 81, 94, 95, 96, 108-113, 231-234, 286, 288, 293, 299 and 304 from Request A-2001-00057 and Records 8, 48, 51, 57, 75  (with the exception of the final sentence), Records 77, 101-104, 150 and 184 from Request A-2001-00058 to the appellant by providing her with copies by July 22, 2003 but not before July 17, 2003.

3.         In order to verify compliance with Provision 2, I reserve the right to require the Ministry to provide me with copies of the records which are disclosed to the appellant. 

Original signed by:                                                                                     June 17, 2003                  

Donald Hale