ORDER PO-3613

Appeals PA14-250 and PA14-308

Ministry of Agriculture, Food and Rural Affairs

May 26, 2016

Summary: The appellant submitted two requests to the Ministry of Agriculture, Food and Rural Affairs for records relating to a transfer payment program to benefit cattle, hog and horticulture farmers. The ministry granted the appellant partial access to responsive records. The ministry withheld access to the remaining records claiming that they qualified for exemption under the mandatory exemption at section 12 (cabinet records) and discretionary exemption at section 13(1) (advice or recommendations). The adjudicator upholds the ministry’s decision in applying the exemptions to withhold the records from the appellant. The adjudicator also finds that the ministry properly exercised its discretion and that the public interest override at section 23 does not apply to the record withheld under section 13(1). The appeal is dismissed.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 , as amended, sections 12(1), 13(1) and 23.

Cases Considered: Orders PO-2422 and 2542.

OVERVIEW:

[1]  The appellant submitted two requests under the Freedom of Information and Protection of Privacy Act  (the Act ) to the Ministry of Agriculture, Food and Rural Affairs (the ministry) for records relating to the government of Ontario Cattle Hog and Horticulture Payment (OCHHP) program. The OCHPP was a past initiative where the government made financial payments to eligible cattle, hog and horticulture farmers.

[2]  The first request sought access to an “order in council” or any other document relating to the government’s commitment to fund the OCCHP program. In response, the ministry located seven responsive records but claimed that the records were exempt under section 12(1)(cabinet records).

[3]  The second request sought access to:

…

any order in council, program authorities, program guidelines and/or provincial guidelines and/or any documents pertaining to direction from OMAF, the government and/or Treasury Board in regards to the Ontario Cattle Hog and Horticulture Payment or OCHHP. If there was a handbook for OCHHP I request a copy of that as well. If OCHHP “fell” under a larger program or was “attached” to other spending I would like any documents that make reference to the guidelines of the OCHHP that includes orders in councils, program authorities and program guidelines or provincial guidelines pertaining to the requested information on OCHHP.

[4]  In response to the second request, the ministry located six responsive records. The ministry granted the appellant partial access to these records but withheld the portions it claimed qualified for exemption under sections 12(1) (cabinet records) and 13(1) (advice to government).

[5]  The appellant appealed the ministry’s decisions to this office and two appeal files were opened and a mediator was assigned to the files to explore settlement.

[6]  During mediation of the first appeal, the ministry issued a supplemental decision letter advising that it has located an eighth record but that it also qualifies for exemption under section 12 (cabinet records). The ministry’s supplemental decision letter also specified that it relies on section 12(1)(a), (b), (c) and (d) to deny the appellant access to the records in addition to the introductory wording in section 12. The ministry also claimed that some of the records contain information not responsive to the request. Finally, the ministry confirmed that it does not have in its custody or control the orders in council requested by the appellant. At the end of mediation, the appellant confirmed that she continued to seek access to the information the ministry claims is not responsive or constitutes a cabinet record for the purposes of section 12. However, the appellant confirmed that she was no longer interested in pursuing access to the orders in council records from the ministry. As a result, the issue of whether or not the ministry has custody or control of those records was removed from the scope of this appeal.

[7]  During mediation of the second appeal, the mediator identified that two of the four records located were duplicates of records in the first appeal which the ministry claims qualify for exemption under section 12(1)(cabinet records). The appellant took the position that the public interest override at section 23 applies to the circumstances of this appeal. The ministry revised its position regarding an agreement it previously withheld and disclosed the withheld information to the appellant. Accordingly, this record is no longer at issue. At the end of mediation, the appellant confirmed that she continues to seek access to the duplicate records withheld under section 12(1) and a memorandum withheld under section 13(1).

[8]  The issues remaining in dispute at mediation were transferred to the adjudication stage of the appeals process, in which an adjudicator conducts an inquiry under the Act . During the inquiry, I joined the appeals and sent a Notice of Inquiry to the parties inviting their representations. The parties’ representations were exchanged in accordance with this office’s confidentiality criteria.

[9]  In its representations, the ministry submits that portions of the draft Information Note (Record A2) and Cabinet Minute (duplicated as Record A9 and B6) contain information which does not reasonably relate to the request. [1] In support of its position, the ministry submits that the records contain information regarding a government initiative with an entirely different scope and purpose. The ministry explains that it appears that the non-responsive information was included in the record as a result of a clerical error.

[10]  The appellant responded that she is not interested in pursuing access to information contained in the record which relates to a “completely different and unrelated subject matter”.

[11]  I have reviewed the records and am satisfied that the portions of Record A2 and Records A9/ B6 contain information which do not relate the OCHHP initiative which is the subject-matter of the appellant’s requests. Accordingly, I have removed the portions of these records the ministry identified as not responsive from the scope of this appeal.

[12]  In this order, I uphold the ministry’s decision to withhold the records under sections 12(1) or 13(1). I also find that the ministry properly exercised its discretion in applying section 13(1) and that the public interest override at section 23 does not apply in the circumstances of this appeal.

RECORDS:

[13]  The records at issue are described in the following table:

 

 

Note: Records A1-A9 relate to records 1-9 identified in the Index of Records the ministry provided with its decision letters in the first appeal (PA14-250). Records B4, B5 and B6 relate to records 4, 5 and 6 described in the Index of Records the ministry provided with its decision letter in the second appeal (PA14-308). The portions of Records A2 and A9/B6 I found not responsive to the requests have been removed from the scope of the appeals.

ISSUES:

1. Does the mandatory exemption under section 12 apply to the records the ministry identified as cabinet records?
2. Does the discretionary exemption under section 13(1) apply to Record B4?
3. Did the ministry properly exercise its discretion under section 13(1)?
4. Is there a compelling public interest in disclosure of Record B4 that clearly outweighs the purpose of the section 13(1) exemption?

DISCUSSION:

A.  Does the mandatory exemption under section 12 apply to the records the ministry identified as cabinet records?

[14]  Section 12(1) reads:

A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including,

(a)  an agenda, minute or other record of the deliberations or decisions of the Executive Council or its committees;

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

(c)  a record that does not contain policy options or recommendations referred to in clause (b) and that does contain background explanations or analyses of problems submitted, or prepared for submission, to the Executive Council or its committees for their consideration in making decisions, before those decisions are made and implemented;

(d)  a record used for or reflecting consultation among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;

(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; and

(f)  draft legislation or regulations.

[15]  Section 12(2) provides exceptions to section 12(1), it reads:

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

(a)  the record is more than twenty years old; or

(b)  the Executive Council for which, or in respect of which, the record has been prepared consents to access being given.

[16]  The use of the term “including” in the introductory wording of section 12(1) means that any record which would reveal the substance of deliberations of an Executive Council (Cabinet) or its committees (not just the types of records enumerated in the various subparagraphs of section 12(1)), qualifies for exemption under section 12(1). [2]

[17]  A record that has never been placed before Cabinet or its committees may qualify for exemption under the introductory wording of section 12(1), where disclosure of the record would reveal the substance of deliberations of Cabinet or its committees, or where disclosure would permit the drawing of accurate inferences with respect to these deliberations. [3]

[18]  In order to meet the requirements of the introductory wording of section 12(1), the institution must provide sufficient evidence to establish a linkage between the content of the record and the actual substance of Cabinet deliberations. [4]

Representations of the parties

[19]  The ministry submits that disclosure of the records would reveal or permit the drawing of accurate inferences regarding the substance of deliberations of its Treasury Board of Cabinet. The ministry advises that one of the records is an 8-page Report to the Treasury Board of Cabinet (Records A5/ B5) which was placed before the Treasury Board of Cabinet at a March 27, 2008 meeting. The ministry states that:

… [i]t is clear on the face of Records A5 and B5 that these records were prepared with the clear and specific intention that they be placed before a Cabinet Committee. This is evidenced by the title of the [r]ecords, the fact that they are specifically marked as “Confidential Advice for Cabinet”, and the content of the Records. Records A5 and B5 are identical submissions made to a Cabinet Committee for its consideration, deliberation and approval.

[20]  The ministry takes the position that disclosure of the remaining records for which it claims the section 12 exemption would also reveal or permit the drawing of accurate inferences regarding Cabinet’s deliberations at their December 13, 2007 or March 27, 2008 meetings, taking into consideration the content of these records. The ministry submits that the remaining records contain information which identifies the same issues or requests contained in the Cabinet Report, or records Cabinet’s deliberations. In support of its position, the ministry submits that:

• Record A1 is a 2007 Memorandum prepared a few days before the Treasury Board’s meeting and refers to the specific result set out in the Cabinet Report;
• Record A2 is a draft 2007 Information Note, if disclosed would reveal the substance of or would allow accurate inferences of the Treasury Board’s deliberations;
• Record A3 is an Issues Note which summarizes what approvals and requests the ministry sought from the Treasury Board, thus identifying the information Cabinet was asked to deliberate on. The ministry also submits that the record was created prior to its submissions to Cabinet and “either sets out practically verbatim or paraphrases some of the information in the Cabinet Report”;
• The content of Record A4 “refers to and is intended to be attached to and read with [the Cabinet Report]”;
• Record A6 is an internal ministry document which summarizes the Treasury Board’s decision after its consideration of the Cabinet Report. The record also contains “either identical wording or paraphrases/ uses similar wording to that used in [the Cabinet Report]”;
• Record A7 is a record prepared for the Office of the Provincial Comptroller, Ministry of Finance. Disclosure would reveal or would allow accurate inferences to be made regarding the substance of the Treasury Board’s deliberations; and
• Records A8 and A9/B6 are documents printed on the Treasury Board’s stationary and marked “Confidential Cabinet Document”. They were signed by the Chair of the Committee at the time of signing and “specifically sets out the decision/results of the deliberations of [the Treasury Board’s December 13, 2007 or March 27, 2008 meeting].

[21]  The appellant’s representations did not specifically address the ministry’s evidence on whether the exemption at section 12(1) applies to the records. However, the appellant submits that the exception at section 12(2)(b) could apply and that the ministry should make inquiries with the cabinet committee to determine whether it would consent to the release of the records.

[22]  The ministry responded that the exception at section 12(2)(b) does not create a mandatory requirement for it to make inquiries about whether the Cabinet is prepared to consent to the release of the records. In any event, the ministry takes the position that it would be inappropriate to seek the Cabinet committee’s consent in the circumstances of this appeal as the board has been reconstituted with new members. The ministry also submits that Orders PO-2422 and PO-2542 support its position that section 12(2)(b) does not contemplate the disclosure of cabinet records through the consent of a “new” board.

Decision and analysis

[23]  I have reviewed the records along with the submissions of the parties and am satisfied that Records A1, A2, A3, A4, A5/B5, A6, A7, A8 and A9/B6 are subject to the mandatory exemption under section 12(1).

[24]  The Treasury Board is a cabinet committee of the Executive Council. [5] Having regard to the content of the records I find that disclosure of the withheld information would reveal the substance or would allow accurate inferences of the Treasury Board’s deliberations made at its December 13, 2007 and March 27, 2008 meetings. Accordingly, I find that the requirements of the introductory wording of section 12(1) has been met.

[25]  I also accept the ministry’s submission that the exception at section 12(2)(b) does not apply and am satisfied that no other exception could apply. In making this decision, I note that section 12(2)(b) does not impose a requirement on institutions to seek the consent of the Cabinet committee to release the relevant record. What the section requires, at a minimum, is that the head turn his or her mind to this issue. [6] In the circumstances, I am satisfied that the ministry considered the possibility of seeking consent under section 12(2)(b) and that this exception does not apply.

Does the discretionary exemption under section 13(1) apply to Record B4?

[26]  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.

[27]  The purpose of section 13 is to preserve an effective and neutral public service by ensuring that people employed or retained by institutions are able to freely and frankly advise and make recommendations within the deliberative process of government decision-making and policy-making. [7]

[28]  “Advice” and “recommendations” have distinct meanings. “Recommendations” refers to material that relates to a suggested course of action that will ultimately be accepted or rejected by the person being advised, and can be express or inferred.

[29]  “Advice” has a broader meaning than “recommendations”. It includes “policy options”, which are lists of alternative courses of action to be accepted or rejected in relation to a decision that is to be made, and the public servant’s identification and consideration of alternative decisions that could be made. “Advice” includes the views or opinions of a public servant as to the range of policy options to be considered by the decision maker even if they do not include a specific recommendation on which option to take. [8]

[30]  “Advice” involves an evaluative analysis of information. Neither of the terms “advice” or “recommendations” extends to “objective information” or factual material.

[31]  Advice or recommendations may be revealed in two ways:

• • the information itself consists of advice or recommendations

• • the information, if disclosed, would permit the drawing of accurate inferences as to the nature of the actual advice or recommendations. [9]

[32]  The application of section 13(1) is assessed as of the time the public servant or consultant prepared the advice or recommendations.

Representations of the parties

[33]  The ministry states that Record B4 is a memorandum “prepared by public servants (as evidenced by the titles of the signatories) to brief the Assistant Deputy Minister at the time, in order to obtain a decision from the [ADM] regarding OCHHP”. The ministry submits that a portion of the memorandum under the heading “Recommendations” refers to two specific courses of action proposed to the ADM for approval. The ministry also submits that the remainder of the memorandum refers the ADM to information which would assist him “…in deciding whether to accept or reject the “Recommendations””. In support of its position, the ministry states:

If the information preceding the “Recommendations” were to be disclosed to the appellant, the appellant would be able to infer the “Recommendations”.

…

In fact, the disclosure of these portions of the Record would permit the reader to draw accurate inferences with respect to the substance of the suggested course of action under “Recommendations”, even if those severed portions do not in themselves expressly make a specific recommendation or give advice.

[34]  Finally, the ministry submits that none of the exceptions to the exemption under section 13(1) apply.

[35]  The appellant’s submissions did not specifically address the ministry’s evidence on whether the exemption at section 13(1) applies to the records.

Decision and analysis

[36]  I have reviewed the memorandum the ministry withheld under section 13(1) and am satisfied that it contains advice or recommendations for the purposes of that section. In my view, the memorandum recommends suggested courses of action for the ADM’s consideration. It is clear from the record that specific recommendations were made to the ADM by ministry staff [10] . In making their recommendations to the ADM, ministry staff identified an issue and provided advice as to whether the issue could be resolved by the suggested courses of action identified in the “Recommendations” section of the memorandum. In my view, if these portions of the memorandum were disclosed, it would permit the drawing of accurate inferences as to the nature of the actual advice or recommendations set out in the memorandum. Accordingly, I find that the entire record qualifies for exemption under section 13(1) subject to my review of the ministry’s exercise of discretion.

C.  Did the ministry properly exercise its discretion under section 13(1)?

[37]  The section 13(1) exemption is discretionary, and permits an institution to disclose information, despite the fact that it could withhold it. An institution must exercise its discretion. On appeal, the Commissioner may determine whether the institution failed to do so.

[38]  In addition, the Commissioner may find that the institution erred in exercising its discretion where, for example,

• • it does so in bad faith or for an improper purpose

• • it takes into account irrelevant considerations

• • it fails to take into account relevant considerations.

[39]  In either case this office may send the matter back to the institution for an exercise of discretion based on proper considerations. [11] This office may not, however, substitute its own discretion for that of the institution [section 54(2)].

[40]  The ministry submits that it properly exercised its discretion in applying section 13(1) to the memorandum at issue. In support of its position, the ministry submits that it considered the wording of the exemption, the nature of the information and the extent to which it is significant and/or sensitive, along with the fact that numerous records relating to the OCHHP program have been disclosed to the appellant through freedom of information requests.

[41]  The appellant submits that the ministry “… could have an improper reason for not wanting records released as the [OCHHP] program did not provide value for taxpayer money as per the government’s directive or follow it”. In support of her position, the appellant states:

… any information through FOI records needs to be uncovered for the public and for those affected to allow insight as to how this problematic OCHHP program was allowed to happened in the first place, why the [ministry] chose to let the injustice continue for the amount of years it has for those affected.

[42]  I have considered the parties’ submissions and find that the ministry properly exercised its discretion in the circumstances of this appeal. I am satisfied that the ministry took into account relevant considerations in applying section 13(1). In making my decision, I took into consideration the appellant’s submission that information relating to the expenditure of public funds should be available to the public.

[43]  However, I also took into account the wording of the exemption and the interests it seeks to protect, namely to preserve an effective and neutral public service by ensuring that people employed or retained by institutions are able to freely and frankly advise and make recommendations within the deliberative process of government decision-making and policy-making. In my view, evidence that the ministry has been subject to public criticism relating to the OCHHP program fails to demonstrate on its own that the ministry applied the discretionary exemption at section 13(1) in bad faith or for an improper purpose.

[44]  Having regard to the parties’ submissions, I find that the ministry exercised its discretion in good faith and took into account relevant considerations. I am satisfied that the ministry’s submissions demonstrate that it balanced the purpose of the exemption and the interests it seeks to protect with a consideration of whether disclosure would increase public confidence.

[45]  For the reasons above, I find that the ministry properly exercised its discretion in applying section 13(1).

D.  Is there a compelling public interest in disclosure of Record B4 that clearly outweighs the purpose of the section 13(1) exemption?

[46]  Section 23 states:

An exemption from disclosure of a record under sections 13, 15, 17, 18, 20, 21 and 21.1 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

[47]  For section 23 to apply, two requirements must be met. First, there must be a compelling public interest in disclosure of the records. Second, this interest must clearly outweigh the purpose of the exemption.

[48]  The Act  is silent as to who bears the burden of proof in respect of section 23. This onus cannot be absolute in the case of an appellant who has not had the benefit of reviewing the requested records before making submissions in support of his or her contention that section 23 applies. To find otherwise would be to impose an onus which could seldom if ever be met by an appellant. Accordingly, the IPC will review the records with a view to determining whether there could be a compelling public interest in disclosure which clearly outweighs the purpose of the exemption. [12]

Representations of the parties

[49]  The appellant made extensive submissions in support of her position that there is a compelling public interest in the disclosure of the memorandum which clearly outweighs the purpose of section 13(1). The appellant’s main argument is that the funds paid out of the OCHHP program were mismanaged and that one of the most vulnerable groups, new farmers, were overlooked. The appellant submits that this group’s exclusion from the OCHHP program has resulted in a competitive disadvantage in the farming industry, as those who were deemed eligible for payments under the program now have a competitive advantage. The appellant submits that a compelling public interest exists in the circumstances of this appeal as the records relate to the expenditure of public funds and the management of a government transfer payment program.

[50]  The ministry submits that the interests the appellant has advanced in support of her position are essentially private in nature. The ministry explains that the appellant did not receive a payment from the OCHHP program and that it has met and exchanged correspondence with the appellant and other farmers who also did not receive a payment to discuss new and existing programs which may offer some financial assistance. The ministry also submits that the subject matter of the memorandum withheld under section 13(1) does not address the public interest issues identified by the appellant.

[51]  In its reply representations, the ministry states:

… if there is any current public interest in a long defunct program (which the Ministry expressly disclaims), that interest is not compelling. If there is any current public interest, it has already been amply satisfied by the degree of disclosure already provided by the Ministry informally, in the requests that the appellant has made. The Ministry reiterates that Record B4 will likely be of little interest and importance to the public at large, due to its specific and limited subject matter and content, as well as the fact that it does not speak to any current matters.

Decision and analysis

[52]  In considering whether there is a “public interest” in disclosure of the record, the first question to ask is whether there is a relationship between the record and the Act ’s central purpose of shedding light on the operations of government. [13] Previous orders have stated that in order to find a compelling public interest in disclosure, the information in the record must serve the purpose of informing or enlightening the citizenry about the activities of their government or its agencies, adding in some way to the information the public has to make effective use of the means of expressing public opinion or to make political choices. [14]

[53]  A public interest does not exist where the interest being advanced are essentially private in nature. [15] Where a private interest in disclosure raises issues of more general application, a public interest may be found to exist. [16]

[54]  The word “compelling” has been defined in previous orders as “rousing strong interest or attention”. [17] The existence of a compelling public interest is not sufficient to trigger disclosure under section 23. This interest must also clearly outweigh the purpose of the established exemption claim in the specific circumstances.

[55]  An important consideration in balancing a compelling public interest in disclosure against the purpose of the exemption is the extent to which denying access to the information is consistent with the purpose of the exemption. [18]

[56]  In this order, I found that the discretionary exemption at section 13(1) applied to a memorandum prepared for one of the ministry’s deputy ministers. The appellant takes the position that disclosure of the record would inform or enlighten the public about the ministry’s handling of the OCHHP program and provide insights as to why some farmers were deemed eligible.

[57]  I have reviewed the memorandum at issue and find that it does not respond to the public interest considerations raised by the appellant. I agree with the ministry that the record relates to specific and limited information. Though I recognize that the interests identified by the appellant are not primarily private, I find that there exists no compelling public interest in disclosure of the record at issue given its limited subject-matter.

[58]  Even if I was persuaded that there was a compelling public interest in the circumstances of this appeal, I would not be satisfied that this interest clearly outweighs the purpose of the section 13(1) exemption. As noted above, the purpose of this section is to ensure that people employed at institutions are able to freely and frankly advise and make recommendations within the deliberative process of government decision-making and policy-making. In my view the public interest considerations raised by the appellant do not clearly outweigh the interests section 13(1) seeks to protect.

[59]  Accordingly, I find that the public interest override at section 23 does not apply to the information I found exempt under section 13(1).

ORDER:

I uphold the ministry’s decision to withhold the records under sections 12 and 13(1).

Original Signed By:		May 26, 2016
Jennifer James
Adjudicator