Canada: Supreme Court Finds Premier's Cabinet Mandate Letters Exempt Under Freedom Of Information Laws

When can Cabinet shield records from public disclosure? In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4, the Supreme Court of Canada decided that the exemption for Cabinet records under Ontario's Freedom of Information and Protection of Privacy Act applied to prevent the public from accessing the Premier's mandate letters to his Cabinet ministers. In its decision, the Court interpreted the Cabinet confidentiality exemption broadly, holding that doing so was necessary to promote good government and preserve the constitutional convention of Cabinet confidentiality.

What you need to know

• Cabinet exemption under freedom of information legislation interpreted broadly.The Supreme Court concluded that the Cabinet confidentiality exemption must be applied broadly, as the sphere of confidentiality around Cabinet deliberations is a constitutional convention that is essential for ministerial responsibility and therefore responsible government.
• Mandate letters are a part of Cabinet's deliberative process.The Court held that the Premier's mandate letters to his Cabinet ministers are not "endpoints" in Cabinet's deliberative process. Rather, they are a crucial part of Cabinet's deliberative process and are exempt from disclosure.
• Government institutions may increasingly claim Cabinet and government-related exemptions. Because the Supreme Court interpreted the Cabinet exemption expansively, institutions and government agencies may increasingly rely on Cabinet and government advice exemptions when responding to access records. But the Cabinet exemption is unique, so it remains to be seen whether the privacy commissioners will extend the Supreme Court's reasoning to other exemptions.
• Supreme Court applies interventionalist administrative law approach.The Supreme Court's decision is also another application of its revamped framework governing judicial reviews. While the majority stated that it was applying reasonableness review to the administrative decision, its interventionalist approach led the concurring judge to accuse the majority of applying disguised correctness review.

Background

The access request

In 2018, a CBC journalist made a freedom of information request under Ontario's Freedom of Information and Protection of Privacy Act (FIPPA) to Ontario's Cabinet Office for copies of the mandate letters that Premier Doug Ford provided to his Cabinet ministers.

The Premier gave a mandate letter to each of the 23 Cabinet ministers following the 2018 provincial election. These letters set out the Premier's approach to translating party values and policy priorities into government action plans for each ministry.

Procedural history: IPC, Divisional Court and Court of Appeal

The Cabinet Office refused the request and denied access to the letters in full. In 2019, the CBC appealed this decision to the Information and Privacy Commissioner of Ontario (IPC). On appeal, the Cabinet Office argued that it did not release the letters because of section 12 of FIPPA, which prohibits a public body from disclosing a record where disclosure "would reveal the substance of deliberations" of Cabinet.

The IPC rejected this reasoning and ordered that the letters be released in full to the CBC (Order PO- 3973). The letters, in the Commissioner's view, did not reveal communications within the deliberative process of the Cabinet itself, which section 12 is aimed at protecting. Rather, they constituted the "endpoint" of the Premier's deliberations regarding his government's plans, policies, and values. Because the letters themselves contained no actual deliberations, they were not exempt from disclosure.

The Ontario government applied to the Ontario Divisional Court for judicial review of the IPC's decision. The Court dismissed the application on the basis that the IPC's decision was reasonable and was owed deference (2020 ONSC 5085). The Ontario Court of Appeal denied the government's appeal, also concluding that the IPC's approach to the section 12 exemption was reasonable (2022 ONCA 74).

Supreme Court applied broad interpretation of Cabinet exemption

The Supreme Court unanimously held that the mandate letters are covered by section 12 and are therefore exempt from disclosure to the CBC. Justice Karakatsanis, writing for the majority, held that the IPC unreasonably interpreted the section 12 Cabinet exemption too narrowly and unreasonably applied it to the mandate letters. Justice Côté agreed in the result but disagreed with the majority's approach on the standard of review.

The majority found that the IPC's interpretation of section 12 was unreasonable because it failed to consider the wider context and purpose of the Cabinet exemption in FIPPA—which is primarily to protect Cabinet confidentiality, described as a "constitutional convention" by the Court. Allowing Cabinet deliberations to exist in a sphere of confidentiality gives the executive the latitude to govern in an effective manner and promotes collective ministerial responsibility, making Cabinet confidentiality "essential for good government".

The Court further held that the mandate letters were mischaracterized by the IPC. In determining that the mandate letters were simply "endpoints" of the deliberative process, the IPC did not consider the nature of the Cabinet decision-making process or the Premier's role as head of Cabinet within that process. The Court explained that the role and activities of the Premier form an inseparable part of Cabinet and its deliberations, and that the Premier's agenda-setting is a crucial part of the decision-making process. The IPC's decision mischaracterized the letters by inappropriately separating the Premier's deliberations from the rest of Cabinet's. The IPC also did not consider that granting control over the timing and manner of the public announcement of policy decisions to the executive government forms a crucial part of Cabinet confidentiality.

In characterizing Cabinet deliberations as "dynamic and fluid" and a "continuum", the Court held that the IPC's focus on linking the mandate letters to specific Cabinet meetings was unreasonable. In so doing, the IPC failed to consider the crucial context that, if the Premier's policy priorities—which are inherently subject to change through the deliberative process before being implemented—are disclosed early on in the process, it would eventually reveal the substance of the Cabinet deliberations when comparing the policy priority in the mandate letters to the eventual corresponding government action.

Practical implications: access requests and administrative law

More claims to government exemptions?The Supreme Court's robust defence of Cabinet confidentiality may lead governments across the country to increasingly rely on the section 12 exemption (and its equivalents in other provincial freedom of information legislation). Privacy commissioners across the country are likely to follow the Supreme Court's expansive approach to section 12, so requesters will presumably face significant challenges in gaining access to any records that fit within the scope of Cabinet confidentiality. Government institutions may also rely on the Supreme Court's decision in claiming other government exemptions, such as the exemption for records revealing advice to government.

But given the unique nature of section 12, and its basis in Cabinet confidentiality, the Supreme Court's analysis of section 12 does not naturally extend to other exemptions under FIPPA. Because the Supreme Court did not discuss or address the application of other exemptions to public disclosure, it remains to be seen whether the privacy commissioners will take any direction from the Supreme Court's decision in interpreting other exemptions.

More criticism of access to information law?In recent years, media members and other organizations have alleged that Canada's freedom of information laws are not working. The Supreme Court's expansive approach to exempting Cabinet records may add further fuel to campaigns to overhaul freedom of information legislation.

Dispute over standard of review.From an administrative law perspective, the Supreme Court's decision provides an interesting application of the Court's revamped framework governing judicial reviews. The majority and concurrence disagreed on the approach, with Justice Côté criticizing the majority for applying its own interpretation of section 12 instead of deferring to the IPC. It will be worth monitoring whether lower courts rely on the majority's decision to take more interventionalist approaches on judicial reviews.

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