The Representations of the Management Board

Management Board submits:

Record # 44 includes a copy of a briefing note prepared for the Chair of the Management Board of Cabinet by the manager of the Access and Privacy Office at MBS.  The information redacted from the briefing note informs the Chair about the nature and status of a policy initiative or initiatives that will be the subject of a Cabinet submission.  In this regard, the information redacted from Record # 44 qualifies for exemption under the plain meaning of subsection 12(1)(e) because it is contained in a record, that was prepared to brief a minister, in relation to a matter that is proposed to be brought before the Executive Council or its committees.

Record # 41 is an e-mail between staff members in two ministries that refers to the same policy initiative or initiatives reflected in Record # 44.  MBS respectfully submits that disclosure of this information will reveal the subject matter of records that are currently being prepared for submission to the Executive Council and one of its committees.  In addition, the Chair of the Management Board of Cabinet, as the minister responsible for MBS, will be provided with, and briefed on the submissions before they are submitted to the Executive Council.

Previous Orders of the Commissioner have restricted the application of subsection 12(1)(e) to only those records actually prepared to brief a minister [Orders 131, P-946]. While Record # 44 would qualify for exemption based on the Commissioner’s interpretation of section 12(1)(e), MBS respectfully submits that a purposive interpretation of subsection 12(1)(e) is required to ensure that information that would reveal information, or give an accurate inference of information, contained in records prepared to brief a minister in the circumstances contemplated by subsection 12(1)(e) is not disclosed. …

Accordingly, MBS respectfully submits that the information redacted from Record # 41 qualifies for exemption under subsection 12(1)(e), as it would reveal information that will be included in a record prepared to brief the Chair of the Management Board of Cabinet in relation to matters that are proposed to be brought before the Executive Council and the Management Board of Cabinet committee.

[Emphasis in Original]

Management Board also advises that:

Counsel in the MBS Services Branch has communicated with the Director of the MBS Corporate Policy Branch to confirm if the policy initiative or initiatives referred to in both records remain subject to the mandatory section 12 exemption.  The Director has confirmed in writing, [referring to a letter attached to the Ministry’s representations] that the MBS Corporate Policy Branch is currently preparing a Cabinet submission on the policy initiative or initiatives referred to in the records at issue in this appeal.  The Director expects that the submission will be provided to the Chair of the Management Board of Cabinet in early 2005, and will then be submitted to the Management Board of Cabinet, and subsequently the entire Executive Council, pending approval, shortly thereafter.

The letter that was referred to by the Management Board in their submissions, sets out the following:

I confirm that the policy initiative or initiatives referred to in the documents identify the subject matter of a policy submission the MBS Policy Branch is currently preparing for submission to the Management Board of Cabinet

It is expected that the submission will be provided to the Chair of the Management Board of Cabinet in early 2005, and subject to his approval, will be submitted to the Management Board of Cabinet shortly thereafter.  If the Management Board of Cabinet approves the submission, it will then be submitted to the Executive Council.

The Representations of the Appellant

In his notice of appeal, after requesting disclosure of Records number 41 and 44 in their entirety, amongst other things, the appellant states:

These documents, I believe, are doubly important.  Despite significant public demand, and despite its own advertised commitment to transparency, the current government is apparently refusing even to consider including universities under FIPPA.  Just as the public should have access to information about how universities use the two billion dollars of public funds they receive from the government, so the public should be informed as to why their government is now refusing to afford them that access.  These documents might well shed some light on the latter, offering a glimpse of the reasons behind the government’s intransigence, and, thus, some clear indication of how best to proceed to render the universities accountable.

The accountability of the universities, in short, presupposes the accountability of the government.

In his representations, amongst other things, the appellant states with respect to Management Board’s submissions that:

The reasoning of the MBS counsel is remarkable, and alarming, in that it argues that access to a record can be denied on the basis of unknown and unknowable possible future events, which can neither be demonstrated nor disproved.  Such a claim should be rejected because it renders impossible any refutation of a government claim to exemption and provides in effect a blanket exemption for any and all government records, utterly undermining FIPPA.

According to the MBS counsel’s argument, all that need be asserted by the government is that a subject matter identified in a record may at some future time become a matter considered in a policy initiative which may at some other future time become a matter for Cabinet deliberation.  Again, this could apply to almost any record and there would be no way an applicant, or adjudicator, could assess or deny it, human beings not being blessed with knowledge of the future.

With respect to the correspondence from Management Board describing the current status of the information, the appellant states:

… First, it indicates only that the subject matter identified in the redacted records at hand is now the subject matter of a policy submission which the MBS Corporate Policy Board is “currently preparing for submission to the MBC.” There is no indication that such an initiative was in preparation, or was even anticipated, at the time of the request when the exemption was claimed.  Second, whereas the counsel repeatedly uses the word “will” in referring to prospective events, the … submission uses only language appropriately speculative and conditional, eg. “It is expected that;” “subject to his approval;” “If the Management Board of Cabinet approves.”  Despite the prophetic pretensions of the MBS counsel future events remain in the realm of the unknown, and that is the problem here.

[Emphasis in Original]

Analysis and Finding

I am satisfied that, based on my review of Records 44 and 41 and the factual and legal submissions filed, that Record number 44 is a copy of a briefing note prepared for the Chair of the Management Board of Cabinet by the manager of the Access and Privacy Office at Management Board with respect to a matter before or proposed to be brought before the Executive Council or one of its committees and that information severed from the e-mail (Record 41) would permit the drawing of accurate inferences with respect to this matter, the information severed from the records is exempt under section 12(1)(e) of the Act.  The content of the Management Board’s representations that the appellant finds objectionable, simply confirms that the policy will be the subject of a submission prepared for the Management Board. 

As I have found that these records qualify for exemption under section 12(1)(e), it is not necessary to consider other grounds raised by Management Board to deny access to the information. 

Section 12(2)(b): 

In its representations, Management Board also addressed the application of section 12(2)(b) of the Act, in explaining what steps were taken before it was decided to rely on the section 12 exemption.  Section 12(2)(b) provides that despite the application of mandatory exemptions set out in section 12(1), a record may be disclosed if the Executive Counsel for which the record has been prepared consents to access being given.

Management Board explains:

The head of MBS, when determining that the mandatory section 12 exemption applied to records at issue in this appeal, considered the issue of whether to seek the approval of the Executive Council to release the records.  After giving the matter careful consideration, the head has exercised her discretion not to seek the Executive Council’s approval.

The head has based her decision on the fact that the information redacted from the records is not known to the public, and that the matter(s) referred to in the records have not yet been submitted to the Executive Council, but will be in the near future.  Consequently, the head determined that it would not be appropriate to seek the consent of the Executive Council to release information Cabinet has not yet had a chance to deliberate and consider.

I am satisfied that the steps taken by the head satisfy any requirements that may be contained in section 12(2)(b).

The Application of Section 23 of the Act

In the notice of appeal the appellant refers to the public interest in the disclosure of the information, which, in some circumstances would raise the possible application of the “public interest override” set out at section 23 of the Act.  However, section 23 does not apply in this appeal because section 12 is not included on the list of exemptions that may be overridden.

ORDER:

I uphold the decision of the Management Board.

Original Signed by:                                                                                January  21, 2005                                       

Steven Faughnan