ORDER PO-3714

Appeal PA13-531-3

Ministry of Municipal Affairs and Housing

March 29, 2017

Summary: The appellant made a request to the Ministry of Municipal Affairs and Housing for access to any information related to the TTC Presto file/issue from the years 2010 and 2011. The ministry identified and disclosed responsive records however it withheld portions of the records pursuant to section 12 (cabinet records) and section 13(1) (advice or recommendations). The appellant appeals the ministry’s decision and also claims that it is in the public interest to release the withheld records. This order finds that the section 12 and 13 exemptions apply and that there is no public interest in releasing the record withheld under section 13(1). Accordingly, 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, 13(1), 23.

BACKGROUND:

[1]  The Ministry of Municipal Affairs and Housing (the ministry) received a request under the Freedom of Information and Protection of Privacy Act  (the Act ) for access to “any information related to TTC Presto file/issue from years 2010 to 2011”.

[2]  After locating responsive records, the ministry issued a decision to the requester, granting him partial access to them. The ministry advised the requester that portions of the records were denied under the mandatory exemption in section 12 (cabinet records) and the discretionary exemptions in sections 13(1) (advice or recommendations) and 19 (solicitor client privilege) of the Act . The ministry also withheld portions of the records as not responsive to the request.

[3]  The requester, now the appellant, appealed the ministry’s decision. In his appeal, the appellant claimed that it is in the public interest to release the information the ministry withheld from disclosure, thereby raising the possible application of the public interest override in section 23  of the Act .

[4]  During mediation, the appellant confirmed that he pursues access to the information withheld in records 3, 4, 5 and 18, only. As a result, the information withheld under the exemption in section 19  of the Act  or identified as not responsive is no longer at issue in this appeal. The appellant also maintains that the public interest override in section 23  of the Act  should apply to the information at issue.

[5]  As no further mediation was possible, the appeal was transferred to the adjudication stage of the appeals process where an adjudicator conducts an inquiry on the issues. I commenced the inquiry by inviting the parties to provide representations on the issues in dispute. Representations were received and shared in accordance with section 7 of IPC’s Code of Procedure and Practice Direction 7.

[6]  In this order, I find that the sections 12 and 13(1) exemptions apply to the withheld portions of the records and that there is no public interest in disclosure of the record withheld pursuant to section 13(1).

RECORDS:

[7]  The records at issue are identified in the ministry’s index of records as document numbers 3, 4, 5 and 18.

[8]  Records 3 and 4 consist of emails between employees at the Ministry of Transportation and the ministry, record 5 is a slide deck presentation, and record 18 contains an internal ministry email. Portions of each record were withheld pursuant to section 12, and a different part of record 3 was withheld pursuant to section 13.

ISSUES:

1. Does the mandatory exemption at section 12 apply to the records?
2. Does the discretionary exemption at section 13(1) apply to the portion of Record 3 for which it was claimed?
3. Did the institution exercise its discretion under section 13? If so, should this office uphold the exercise of discretion?
4. Is there a compelling public interest in disclosure of the records that clearly outweighs the purpose of the section 13 exemption?

DISCUSSION:

A:  Does the mandatory exemption at section 12 apply to the records?

[9]  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.

[10]  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.

[11]  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). [1]

[12]  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. [2]

[13]  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. [3]

Representations of the parties

[14]  The ministry in its representations states that section 12 applies to portions of each of the records at issue in this appeal. It indicates that records 3 and 4 consist of emails which refer to a pending policy proposal related to the integration of the presto card by the Toronto Transit Commission (TTC). The proposal was sent to the ministry for their comments before the meeting. The representations indicate that the ministry was being consulted by the lead ministry, the Ministry of Transportation (MOT). The ministry notes that records 3 and 4 indicate that the policy proposal would be discussed at a meeting consisting of staff from the ministry, cabinet office and other government officials.

[15]  The ministry states that record 5 is a slide deck prepared by the MOT which contains the proposal discussed in records 3 and 4. The slide deck was prepared for the purpose of briefing on the policy options contained in the slide deck. The ministry states that record 18 is an internal ministry email containing comments on the presto card proposal referenced in records 3, 4 and 5.

[16]  The ministry submits that the introductory wording to section 12(1) uses the word “including” which means that the types of records covered by the Cabinet exemption are broader that just the exemptions enumerated by the clauses of section 12(1). It refers to Order PO-2186-F to support that a record can meet the enumerated clauses of section 12(1) if “it can be established that the disclosing of the record would reveal the substance of the deliberations of Cabinet or its committees or permit the drawing of accurate inferences with respect to the Cabinet deliberations.”

[17]  The ministry submits that by releasing the records, it would reveal the substance of the Treasury Board’s deliberations on this issue because the records would reveal the decision requested by the MOT which was submitted to the Treasury Board.

[18]  The ministry states that it had not asked Cabinet for permission to release the records, in reference to section 12(2)(b). In making the decision not to contact Cabinet, the ministry indicates that it considered that the release of the records would reveal the substance of Treasury Board deliberations on the issues contained in the records. The ministry also states that it considered the fact that the MOT has refused to release the same or similar records in similar freedom of information requests made by the appellant to the MOT.

[19]  In his representations, the appellant notes that the ministry stated that the emails refer to a pending policy proposal. The appellant states that “[p]olicy refers only to legislation e.g. Metrolinx Act and not operational decisions e.g. integration of the Presto Card.”

[20]  In its reply representations, the ministry notes that the word “policy” is not defined in the Act and therefore the rule of statutory interpretation is to interpret the word based on the ordinary meaning within the context of the Act . The ministry referred to a number of IPC orders that held that the section 12 Cabinet records exemption is not restricted to legislative policy decisions made by Cabinet (Orders PO-3393, PO-3359).

Analysis and finding

[21]  In order for the exemption in section 12(1)(b) to apply to a document, the record in question must contain policy options or recommendations and it must have been submitted or prepared for submission to the Executive Council or its committees.

[22]  In his representations, the appellant states that the word “policy” in section 12(1)(b) refers only to legislation, without providing any authority for this statement. In examining section 12(1), I note that (f) specifically lists “draft legislation or regulations.” I do not agree with the appellant that section 12(1)(b) pertains to legislation only, particularly when (f) specifically lists legislation. I accept the ministry’s submission that since “policy” is not defined in the Act , the ordinary meaning within the context of the Act  should be applied. The legislative context of section 12 does not support that the word “policy” used in section 12(1)(b) is intended to only apply to Cabinet decisions related to legislation or statutory matters. The Provincial Cabinet, as pointed out by the ministry, makes policy decisions on other issues that do not directly involve legislation. If the Legislature meant that “policy” only refers to legislation, it would have stated so specifically, especially since it refers to draft legislation or regulations in section 12(1)(f). Further, prior orders of the IPC have not made the distinction argued by the appellant and I reject his submission.

[23]  After reviewing the withheld portions of the records, I agree with the ministry that they contain policy options and recommendations concerning the TTC presto card integration. The portion of record 3 withheld pursuant to section 12 and the withheld portion of record 4 contain similar advice and recommendations concerning the possible implementation of the presto card across the TTC. Portions of record 5, which consist of a slide deck, were also withheld pursuant to section 12 and contain advice by way of a recommended approach with regard to the presto card including rationale and next steps, along with recommendations. The entirety of record 18 was also withheld pursuant to section 12 and is an internal email chain containing advice and recommendations concerning the Presto card.

[24]  On my review of the records at issue and the representations of the parties, I am satisfied that the records are exempt under the introductory wording of section 12(1). The evidence confirms that the records were submitted to Treasury Board, a Committee of Cabinet. Based on my review of the records and the representations of the ministry, I am satisfied that disclosure would reveal the substance of deliberations of Treasury Board. Accordingly, I conclude that the portions of all four of the records for which the section 12(1) exemption was claimed are exempt under the introductory wording in section 12(1).

[25]  With respect to the exceptions in section 12(2), it is clear that section 12(2)(a) does not apply, given the age of the records. In its representations, the ministry addressed the factors which it considered in exercising its discretion to not seek Cabinet consent for disclosure of the record. Based on its representations, I am satisfied that the ministry has exercised its discretion under section 12(2)(b), and has considered relevant factors in doing so. 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. [4] In the circumstances, I am satisfied that the ministry’s evidence demonstrates that it considered the possibility of seeking consent under section 12(2)(b) but decided against it. I accept the ministry’s exercise of discretion, as outlined in its representations, with respect to whether to seek Cabinet’s consent under section 12(2)(b).

[26]  As the public interest override does not apply to the section 12 exemption, I am not able to consider the application of section 23 to the portion of the records withheld pursuant to section 12.

B:  Does the discretionary exemption at section 13(1) apply to the portion of Record 3 for which it was claimed?

[27]  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.

[28]  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.

[29]  “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.

[30]  “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.

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

[32]  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.

[33]  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

[34]  In its representations, the ministry notes that it claimed an exemption under section 13(1) for part of the contents of record 3. It submits that the relevant portion of this record contains the ministry’s employee’s recommendation and advice concerning the implications of the TTC Presto card integration.

[35]  The ministry submits that many orders of the IPC have found that the purpose of the section 13(1) exemption is to allow public servants to advise and make recommendations freely and frankly and to preserve the head’s ability to take action and make decisions without unfair pressure (Orders P-1693, PO-2186).

[36]  The ministry submits that the term “recommendation” has been found by IPC adjudicators to mean “information related to a suggested course of action that will be ultimately accepted or rejected by its recipient during the deliberation process.” [5] It also noted that the term “advice” has been found to include, “policy options of alternative courses of actions.” The ministry also points out that in the referenced Orders, the adjudicators distinguished recommendations or advice from factual information which is not exempted under section 13(1).

[37]  The ministry notes that within the record, the ministry employee specifically used the word “recommendation” and the recommendation made outlined a course of action for the ministry to consider. The ministry submits that the email also contains advice related to the presto card proposal and possible policy implication that would occur if the proposal was implemented.

[38]  Finally, the ministry submits that none of the exceptions in section 13(2) or 13(3) is relevant to the part of record 3 claimed for the exemption.

[39]  In his representations, the appellant states that the purpose of the section 13(1) exemption can be achieved by redacting the names and job titles of the individuals giving advice.

[40]  In its reply representations, the ministry refers to the Supreme Court of Canada decision in John Doe v. Ontario (Finance) [6] where the court referred to a federal court decision that explained the rationale for the exemption for advice given by public servants, where it was stated:

To permit or to require the disclosure of advice given by officials, either to other officials or to ministers, and the disclosure of confidential deliberations within the public service on policy options, would erode government's ability to formulate and to justify its policies.

It would be an intolerable burden to force ministers and their advisors to disclose to public scrutiny the internal evolution of the policies ultimately adopted. Disclosure of such material would often reveal that the policy-making process included false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the re-weighing of the relative importance of the relevant factors as a problem is studied more closely. ln the hands of journalists or political opponents this is combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness.

[41]  The ministry refers to two other Supreme Court of Canada decisions to support that the “advice and recommendations provided by a public servant who knows that his work might one day be subject to public scrutiny is less likely to be full, free and frank, and is more likely to suffer from self-censorship.” [7] Further, it submits that a decision maker may hesitate to even request advice or recommendations in writing concerning a controversial matter if they know the resulting information might be disclosed.

[42]  The ministry argues that section 13 allows “both the public servant and the elected officials the ability to consider a wide range of policy alternatives without being concerned that the policy recommendations may be released.”

[43]  Section 13(2) describes the type of documents containing advice or recommendations that must be released despite section 13(1). The ministry states that the record at issue does not contain the type of information that subsection 13(2) indicates must be released, and that record 3 is subject to the exemption in section 13(1) since it is a recommendation of a ministry employee.

[44]  Finally, the ministry submits that the overarching purpose of section 13(1) is to prevent disclosure of records that would reveal the advice or recommendation of a public servant. Given the wording of the employee’s email, the ministry suggests that it is clear that the email provides recommendations. The ministry says that redacting the name of the employee would not prevent the disclosure and therefore reveal the advice or recommendations of an employee.

Analysis and finding

[45]  I have reviewed the portion of the record for which the ministry is claiming section 13(1) and the representations submitted of the ministry. I have also considered the subject matter being discussed. I find that all of the relevant portion of record 3 contains advice or recommendations for the purposes of section 13(1). I accept the ministry’s representations that this record contains the ministry’s employee’s recommendation and advice on the implications of the TTC Presto card integration. In the record, the employee specifically refers to their recommendation on the issue and sets out a course of action for the ministry to consider. The email also contains advice related to the presto card proposal which relates to possible policy implications if the proposal was implemented. I find that the withheld portion of the record constitutes the actual recommendation and advice of the employee. Accordingly, I find that section 13(1) applies to exempt the withheld portion of the record from disclosure, subject to my review of the ministry’s exercise of discretion below.

[46]  I reject the suggestion that the section 13(1) exemption can be achieved by redacting the name of the employee. I agree with the ministry that disclosing the record with the employee’s name redacted would still disclose the advice or recommendation, defeating the purpose of the exemption.

C:  Did the institution exercise its discretion under section 13? If so, should this office uphold the exercise of discretion?

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

[48]  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.

[49]  In either case this office may send the matter back to the institution for an exercise of discretion based on proper considerations. [8] This office may not, however, substitute its own discretion for that of the institution [section 54(2)].

[50]  In view of the fact that I have upheld the ministry’s decision that the information qualifies for exemption under section 13(1), I must also consider whether the ministry properly exercised its discretion to withhold the information under the discretionary exemption.

[51]  The ministry submits that it properly exercised its discretion in applying section 13(1) to the email at issue. In support of its position, the ministry submits that it considered releasing the record but had concerns relating to the interests that section 13 seeks to protect.

[52]  With regard to the part of record 3 withheld pursuant to section 13(1), the ministry states that it considered exercising its discretion and releasing the record but there was general concern in releasing the information. These concerns related to the interests which section 13 seeks to protect. The ministry states that if it released some policy recommendations or advice, it “could have a chilling effect on the nature of the advice the Ministry receives from its employees.” The ministry states that if employees thought it likely that the ministry would routinely release the information otherwise subject to section 13, then they may provide different policy options, or not provide more extreme or unpopular policy options. The ministry also commented that had the Legislature wished to establish a new category of records that could be released under section 13(2) with the employees’ name redacted, it could have made this change to the Act .

[53]  The appellant’s submission regarding the ministry’s exercise of discretion cites section 53 (burden of proof). The appellant states that the ministry does not state how releasing the emails written many years ago would impact the implementation of the presto card. The appellant also states that since the ministry had already implemented the program there was no longer any implementation risk.

[54]  I have considered the ministry’s submission on the factors it took into consideration in exercising its discretion to not disclose the portion of the record, for which it claimed exemption under section 13(1). I have also considered the circumstances of this appeal, including the ministry’s other disclosures in response to the request. The evidence before me is sufficient to support a finding that the ministry exercised its discretion regarding disclosure of records responsive to the appellant’s access request in good faith and that it considered relevant factors in doing so. Based on the manner in which the ministry applied the exemptions, I am satisfied that it took into account all relevant factors and did not take into account irrelevant factors. On the whole, I see no basis for interfering with the ministry’s exercise of discretion.

[55]  I do not accept the appellant’s suggestion that the ministry could release the record given its age or that the TTC Presto card integration is complete. The Legislature has already indicated that records older than 20 years can be released and there is no support, in the section, that records can be released if a program has already been implemented.

[56]  I find that the ministry properly exercised its discretion to withhold information under section 13(1) and I uphold the ministry’s exercise of discretion.

D:  Is there a compelling public interest in disclosure of the records that clearly outweighs the purpose of the section 13 exemption?

[57]  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.

[58]  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.

[59]  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. [9]

Representations of the parties

[60]  In its representations, the ministry states that section 23 requires a weighing of the public interest in disclosing the record against the purpose for the exemption and refers to the following from Order PO-1398:

If a compelling public interest is established, it must be balanced against the purpose of any exemptions that have been found to apply. Section 23 recognizes that each of the exemptions listed, while serving to protect valid interests, must yield on occasion to the public interest in access to information that has been requested. An important consideration in this balance is the extent to which denying access to the information is consistent with the purpose of the exemption.

[61]  The ministry indicated that it did not receive any information from the appellant concerning why he wished to receive the record and therefore is not aware of the appellant’s argument as to why the release of the record would be in the public interest. However, it submits that releasing the portion of record 3 would not inform or enlighten the public on the activities of government because it deals with a narrow issue related to a much larger policy question of the TTC integration of the presto card.

[62]  Further, the ministry states that it is aware the appellant has requested similar records from the MOT on the integration of the presto card to the TTC. The ministry submits that MOT is the lead ministry for the presto card issues and suggests that the MOT appeal is the better forum to consider the public interest in releasing similar records.

[63]  The ministry states that section 13  of the Act  is meant to allow for a free flow of recommendations and advice from the ministry employees to the elected officials. This provision recognizes that elected officials require the ministry employees to give them a full policy review of an issue, along with their policy recommendations or advice and releasing this information might make the employees concerned about the type of recommendations or advice they give to the Minister. The ministry submits that record 3 does not raise a compelling public interest and in any event the public interest is outweighed by the purpose of the exemption.

[64]  In his representations, the appellant states that in December 2012 the Ontario Auditor General announced that a specified audit under-reported the presto cost by $600 million. The appellant also refers to possible breaches of section 7 of the Metrolinx Act and the Criminal Code of Canada  (sections 123 , 346(1) , 423(1) (b), 341 , 361(1) , 362(1)  and 380(1) ). The appellant argues that there is a compelling public interest in finding out if there was a reasonable justification for misrepresenting the cost.

[65]  In its reply representations, the ministry submits that the limited content of record 3 would not provide the appellant with the complete justification for the presto card implementation costs. It submits that this ministry had a limited role in the implementation of the card as the MOT was the lead ministry. With regard to a criminal code prosecution, the ministry states that section 64  of the Act  does not affect the authority of a court to require a witness to testify or to compel the production of a document.

Analysis and finding

[66]  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. ^[10] 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. ^[11]

[67]  Based on my review of the portion of record 3 withheld pursuant to section 13(1) and the parties’ representations, I have reached the conclusion that the circumstances of this case are not sufficient to invoke the application of section 23. To begin, the record is from 2011, and consists of some non-binding recommendations about the TTC presto card integration by an employee of the ministry. I find that the information at issue does not respond to the applicable public interest raised by the appellant about the under-reporting of the presto card costs. I agree with the ministry that the record relates to specific and limited information.

[68]  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. [12]

[69]  Even if I had found that the public interest existed in relation to this record, I would not be satisfied that this interest clearly outweighs the purpose of the section 13(1) exemption. As noted above, the purpose of the section 13(1) exemption is to preserve an effective and neutral public service. Generally, it is intended to ensure 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. The public interest considerations raised by the appellant do not clearly outweigh the interests section 13(1) seeks to protect.

[70]  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 dismiss this appeal.

Original Signed by:		March 29, 2017
Alec Fadel
Adjudicator