ORDER PO-2250

 

Appeal PA-030125-2

 

Ministry of Health and Long-Term Care

 

NATURE OF THE APPEAL:

 

The Ministry of Health and Long-Term Care (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for access to the following:

 

Any letters, memos, correspondence or documents, including press lines and ministerial briefings and notes to file, about private-public partnerships to build new long-term care facilities in Ontario which discuss in general or specific terms the number of facilities to be built and/or issues of oversupply and undersupply of such facilities and/or options available to the Ministry of Health to deal with the issue from five years ago (October 21, 1997) until the present.

 

The Ministry identified 18 records responsive to the request and granted access to Records 17 and 18.  The Ministry denied access to the16 remaining records on the basis of sections 12(1)(b) and (e) (Cabinet records), 13(1) (advice or recommendations) and/or 22(a) (publicly available) of the Act.  The Ministry also stated that a fee of $812.40 was payable for the 27 hours of search time and 12 pages of photocopying.

 

The requester, now the appellant, appealed the decision, including the fee.

 

During mediation, the Ministry provided the appellant with a copy of the index of records.  As a result of his review of the index, the appellant was able to locate copies of Records 1, 2, and 3 for which the Ministry had claimed section 22(a).  Records 1, 2, and 3 and the section 22(a) exemption are therefore no longer at issue in this appeal.

 

Also during mediation, the Ministry agreed to review its access decision and granted partial access to some of the records that it had previously withheld in full.  The Ministry issued a revised decision letter to the appellant together with a revised index of records reflecting this change.

 

Mediation was otherwise not successful and the appeal was transferred to the adjudication stage. I began my inquiry by sending a Notice of Inquiry to the Ministry setting out the issues on appeal and seeking written submissions.  In its representations, the Ministry raised for the first time the application of section 17 (third party information) to Records 6 and 7.  Because section 17 is a mandatory exemption, I added it as an issue in this appeal.

 

I then sent copies of the Notice of Inquiry to four parties whose interests might be affected by the disclosure of portions of Records 6 or 7 (the affected parties), inviting them to submit representations.  One of the affected parties responded.  That party, whose interests relate only to Record 7, does not object to the release of the portion of Record 7 that pertains to it.

 

I then sent a copy of the Notice of Inquiry to the appellant.  In that Notice I summarized the affected party’s position.  I also enclosed a copy of the Ministry’s representations.  The appellant chose not to make representations.

 

RECORDS:

 

Records 4 through 16 remain at issue in this appeal:

• Record 4 is a Long-Term Care Multi-Year Investment Plan (1998/99 to 2003/04) dated March 23, 1998 and is described in the Index as a Ministry submission to the Cabinet.  The Ministry claims section 12(1)(b) for this record.

 

• Records 5, 6, and 7 are issue notes dated June 15, 2001, June 19, 2001 and April 17, 2002 respectively.  These records are described as having been developed by Ministry staff for the purposes of providing recommendations and advice to the Minister for his decision.  Partial access was granted to these records.  The Ministry claims section 13(1) for the portions that have been withheld.

 

• Record 8 consists of briefing material dated September 6, 2002 developed by ministry staff for the purpose of providing recommendations and advice to the Minister.  Access to this record was denied in full under section 13(1).

 

• Record 9 is a submission made to Management Board of Cabinet dated October 10, 2002, developed by Ministry staff for the purposes of providing recommendations and advice to the Cabinet Committee.  Access to Record 9 was denied in full under section 12(1)(b).

 

• Records 10 and 11 are records dated September 24, 2002 and May 2, 2002, and were developed by Ministry staff for the purposes of providing recommendations and advice to the Minister.  Both records have been denied in part.  The Ministry claims sections 12(1)(e) and 13(1) for Record 10 and section 13(1) for Record 11.

 

• Records 12, 13, 14, 15, and 16, each consist of slide presentations developed by Ministry staff for the purpose of providing recommendations and advice to the Minister.  The records are dated respectively, July 31, 2002, September 11, 2002, September 26, 2002, October 7, 2002 and October 24, 2003.  Access to Records 12, 13, and 14 was denied in part.  Access to Records 15 and 16 was denied in full.  The Ministry claimed section 13(1) for the information that was denied for all five records.

 

DISCUSSION:

 

FEES

 

Sections 48(1)(c) and 57(1) require an institution to charge fees for requests under the Act; and section 57(4) provides for the waiver of fees in certain circumstances.  More specific provisions regarding fees and fee waivers are found in sections 6 through 9 of Regulation 460.  Section 57(5) provides that the Commissioner’s Office may review the amount of a fee or fee estimate, or the institution’s decision not to waive a fee.

In its decision letter, the Ministry advised the appellant that it was charging a fee of $812.40.  The amount payable was itemized as follows in a fee statement enclosed with the decision letter:

 

Search time                 $30.00 per hour                       27 hours                      $810.00

Photocopy charges      $00.20 per page                       12 pages                      $    2.40

 

TOTAL                                                                                                           $812.40

 

In my Notice of Inquiry, I asked the Ministry to provide detailed responses to a number of questions aimed at determining whether the fees charged to the appellant complied with the various statutory and regulatory provisions.  The Ministry chose not to respond to the fees issue in its representations.  Although not clear, it is possible that the absence of representations is intended to imply a waiver of fees on the Ministry’s part. 

 

As noted above, section 57(5) of the Act provides requesters with a right to ask the Commissioner to review the amount of a fee charged by an institution.  Although there is no burden of proof specified in the Act with regard to fees, the burden of proof in law generally requires the person who asserts a position to establish it and, in my view, an institution seeking to impose a fee bears the onus of demonstrating that it is permitted by the statutory and regulatory requirements set in the Act.  Evidence to establish how a search fee has been determined must be provided in order for me, as a delegate of the Commissioner, to discharge my review responsibilities under section 57(5).  To find otherwise would require me to simply accept an institution’s statement without any evidence to support it, which clearly cannot have been the intent of the fee regime set out in the statute.

 

Accordingly, if the search fees have not been waived, I find that there is no basis for me to uphold the fees based on the evidence before me, and I find that these search fees cannot be charged.

 

As far as the photocopy charges are concerned, I will include a provision in this order permitting the Ministry to charge the per-page photocopy rate for all pages of records ordered disclosed.

 

CABINET RECORDS

 

The Ministry claims sections 12(1)(b) and (e) as the basis for denying access to Records 4 and 9, and section 12(1)(e) as the basis for denying access to portions of Record 10.

 

These sections read as follows:

 

12(1) A head shall refuse to disclose a record where the disclosure of the deliberations or decision of the Executive Council or its committees, including,

 

(b) a record containing policy options or recommendations submitted, or prepared for submission, to the Executive Council or its committees;

(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 decisions or the formulation of government policy;

 

 

Section 12(1)(b)

 

In order for Records 4 and 9 to qualify for exemption under section 12(1)(b), the Ministry must establish that:

 

1.      the records contain policy options or recommendations; and

 

2.      the records were submitted or prepared for submission to Cabinet or its committees.

 

The Ministry submits:

 

[The Ministry] submits that Records at issue were prepared by [the Ministry] for recommendation to Cabinet on the issues and information shown as discussed and considered therein.  [The Ministry] further submits that there is prima facia evidence that the Records are subject to this exemption.  Several previous [Commissioner’s Office] decisions have consistently found that submissions to Cabinet and its Committees qualify for the exemption in section 12(1)(b) [Orders P-1034, P-1312, P-1327].  The information and recommendations contained in the Records were received and deliberated at such meetings.  Cabinet would have considered the information and recommendations in the Records and deliberated on the issues presented.  There is also evidence in the substance of the Records that provides evidence that these Records provided supporting material indicating that these Records formed a part of the supporting material and were prepared for the same purposes.  It is a common part of submissions to the Minister to supply supplemental information to support the proposals or to provide more detail in answer to follow up questions on the deliberation of the proposals. …

 

Record 4 is titled “Long-Term Care Multi-Year Investment Plan (1998/99 to 2003/04)”.  The Ministry’s index identifies Record 4 as a “submission to Cabinet” containing “recommendations on a multi-year investment plan for the Long-Term Care sector”.  Having reviewed Record 4, I accept that it contains policy options and recommendations and that it was prepared for submission to Cabinet or a committee of Cabinet and therefore qualifies for exemption under section 12(1)(b).  Even if Record 4 was itself not brought before Cabinet or one of its committees, based on the content of other records at issue in this appeal, it is clear that disclosing it would either reveal the substance of deliberations of Cabinet or would permit the drawing of accurate inference with respect to these deliberations, thereby bringing Record 4 within the scope of the introductory wording of section 12(1).

 

Record 9 is a “Management Board Submission” titled “Occupancy Protection for Older Long-Term Care Facilities”.  It is clear from the format and substance of Record 9 that it was prepared by Ministry staff for the purpose of providing policy options and recommendations about the administration of long-term care sector, and was presented to Management Board, a committee of Cabinet, in October of 2002.  Therefore, I find that Record 9 also qualifies for exemption under section 12(1)(b).

 

Section 12(1)(e)

 

Previous orders have held that section 12(1)(e) of the Act is prospective in nature.  The use of the present tense in this section precludes its application to matters that have already been considered by Cabinet or its committees.  [Orders P-22, P-40, P-946 and P-1182]

 

To qualify for an exemption under 12(1)(e), the Ministry must establish that the record itself has been prepared to brief a Minister in relation to matters that are either:

 

(a)        before or proposed to be brought before Cabinet or its committees; or

 

(b)        the subject of consultations among ministers relating to government decisions or the formulation of government policy.

 

[Order 131]

 

ADVICE OR RECOMMENDATIONS

 

The Ministry claims section 13(1) as the basis for denying access to the withheld portions of Records 5, 6, 7, 10, 11, 12, 13 and 14, and for Records 8, 15, and 16 in their entirety.  Because I have determined that the withheld portions of Record 10 qualify for exemption under section 12(1)(e), I will not consider the record in my section 13(1) discussion.

 

General principles

 

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.

 

The purpose of section 13 is to ensure that persons employed in the public service are able to freely and frankly advise and make recommendations within the deliberative process of government decision-making and policy-making. The exemption also seeks to preserve the decision maker or policy maker's ability to take actions and make decisions without unfair pressure [Orders 24, P-1398, upheld on judicial review in Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner) (1999), 118 O.A.C. 108 (C.A.)].

 

"Advice" and "recommendations" have a similar meaning.  In order to qualify as "advice or recommendations", the information in the record must suggest a course of action that will ultimately be accepted or rejected by the person being advised.

 

Advice or recommendations may be revealed in two ways:

 

• the information itself consists of advice or recommendations
• the information, if disclosed, would permit one to accurately infer the advice or recommendations given
  
  [Orders PO-2028, PO-2084, upheld on judicial review in Ontario (Minister of Northern Development and Mines) v. Ontario (Information and Privacy Commissioner) (January 19, 2004), Toronto Docs. 433/02, 25/03 (Ont. Div. Ct.)]

Record 11 In Order PO-2028 to support my interpretation of the words “advice and recommendations” I quote from Public Government for Privacy People: The Report of the Commission on Freedom of Information and Individual Privacy 1980, vol. 2 (Toronto: Queen’s Printer, 1980) (The Williams Commission).  The following quotations is instructive here:

 

A second point concerns the status of material that does not offer specific advice or recommendations, but goes beyond mere reportage to engage in analytical discussion of the factual material or assess various options relating to a specific factual situation.  In our view, analytical or evaluative materials of this kind do not raise the same kinds of concerns as do recommendations.  Such materials are not exempt from access under the U.S. act, and it appears to have been the opinion of the federal Canadian government that the reference to “advice and recommendations” in Bill C-15 would not apply to material of this kind [16].

Similarly, the U.S. provision and the federal Canadian proposals do not consider professional or technical opinions to be “advice and recommendations” in the requisite sense.  Clearly, there may be difficult lines to be drawn between professional opinions and “advice.”  Yet, it is relatively easy to distinguish between professional opinions (such as the opinion of a medical researcher that a particular disorder is not caused by contact with certain kinds of environmental pollutants, or the opinion of an engineer that a particular high-level bridge is unsound) and the advice of a public servant making recommendations to the government with respect to a proposed policy initiative.  The professional opinions indicate that certain inferences can be drawn from a body of information by applying the expertise of the profession in question.  The advice of the public servant recommends that one of a possible range of policy choices be acted on by the government.

 

With one exception, I find that disclosing the withheld portions of Records 12-16 would not reveal advice or recommendations, and they do not qualify for exemption under section 13(1).  The exception is page 17 of Record 13.  This page lists potential mitigation strategies that are being presented for consideration by the Minister.  I find that these strategies represent recommended actions of a public servant that can be accepted or rejected by the Minister, and therefore qualify for exemption under section 13(1).  In my view, disclosing the rest of the withheld information in Records 12-16, would not reveal advice or recommendations within the meaning of section 13(1) as those terms have been interpreted and applied in previous orders.

 

Because of my findings relating to Records 6 and 7, it is not necessary for me to consider the section 17(1) exemption as it relates to these records.

 

ORDER:

 

1.                  I do not uphold the Ministry’s search fee.  I uphold the Ministry’s photocopy fee in the amount of $21.20, which represents the per-page allowable fee for all 106 pages of records ordered disclosed.

 

2.                  I order the Ministry to disclose Records 12, 14, 15 and 16; all portions of Record 13 with the exception of page 17; page 1 of Record 8; and all portions of Records 5, 6, 7, 10 and 11 that the Ministry agreed to disclose in its revised decision letter.  Disclosure under this provision is to be made to the appellant by March 31, 2004.  I have attached a highlighted version of Records 5, 6, 7, 10 and 11 with the copy of this order sent to the Ministry, identifying the portions of these records that should not be disclosed.

3.                  I uphold the Ministry’s decision to deny access to Records 4 and 9; pages 2-10 of Record 8; page 17 of Record 13; and all portions of Records 5, 6, 7, 10 and 11 not covered by Provision 2.

 

4.                  In order to verify compliance with this order, I reserve the right to require the Ministry to provide me with a copy of the information disclosed to the appellant pursuant to Provision 2, upon request.

 

 

 

 

 

 

 

Original signed By:                                                                             March 10,2004                                             

Tom Mitchinson