Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

Specific Exemptions/Exclusions

Deliberative Processes of Government

The deliberative and decision-making process of government is protected under two sections of the Act: Section 69, which excludes Cabinet confidences from the application of the Act, and Section 21, which exempts advice to Ministers and the deliberative processes of institutions. These provisions are interrelated and should be looked at together.

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Section 69 - Cabinet Confidences

Section 69 states that the Act does not apply to confidences of the Queen’s Privy Council for Canada – which includes Cabinet and Cabinet committees. The Act does not define such confidences, but provides a list of examples including: Cabinet memoranda, agendas, records of decisions; communications between Ministers on matters relating to the making of government decisions or the formulation of government policy; pre-Cabinet briefings of Ministers and draft legislation.

Since the Act does not apply to Cabinet confidences, a decision of the head of a government institution that a record contains a confidence is final. The record concerned cannot be reviewed by the Information Commissioner or the Federal Court, unless it can be challenged on other grounds.

Section 69 has been the subject of strong criticism.

The convention of Cabinet confidentiality, which is protected under Section 69, is fundamental to collective ministerial responsibility under the Canadian system of parliamentary and Cabinet government. Essentially, it is designed to ensure that Ministers can deliberate in confidence. The convention is actively observed in the day-to-day workings of government. All Ministers take an oath to give their advice freely and to safeguard the secrecy of all matters they discuss amongst themselves. When Ministers leave office, their Cabinet and related papers are sealed and are not accessible to a new government.

Moreover, Canada has a statutory regime that governs matters relating to the convention of Cabinet confidentiality in court proceedings. The Canada Evidence Act (CEA) sets out the rules governing witnesses and evidence in all criminal proceedings, as well as in civil and other proceedings over which Parliament has jurisdiction. Section 39 of the CEA provides for the exclusion of Cabinet confidences from production in relation to such proceedings. The definition of confidences in that provision is essentially the same as in the Access to Information Act. The Task Force recognizes that any changes to Section 69 of the Act must go forward together with changes to Section 39 of the Canada Evidence Act (and Section 70 of the Privacy Act).

The fundamental role of Cabinet in a Westminster parliamentary system of government such as ours is widely recognized, as is the need to protect the process of Cabinet decision-making. The issue is whether the need to protect Cabinet confidences justifies their absolute exclusion from the Act. Could confidences not be protected adequately in other ways? We believe that they could. Other Westminster-style jurisdictions, in Canada and abroad, provide strong protection for Cabinet confidences without excluding them from the scope of their legislation.

Our review shows that, in most jurisdictions, Cabinet confidences are protected by a mandatory class exemption. We believe this approach would be appropriate in the Canadian context as well. The Australian Law Reform Commission best expressed the rationale for choosing a mandatory exemption over a discretionary one: "It is not in the public interest to expose Cabinet documents to the balancing process contained in most other exemptions or to risk undermining the process of collective Cabinet decision-making."³

A related issue is which records warrant this protection. We noted earlier that the Act does not define Cabinet confidences but provides a list of examples. Many people believe that this allows for an overly broad interpretation of the meaning of Cabinet confidence. By contrast, the legislation in most of the jurisdictions we studied focuses on protecting the substance of Cabinet deliberations. We believe this is the better approach.

Not all material prepared for the consideration of Cabinet Ministers needs the strong protection required for the deliberations of Cabinet. The background material, factual information and analyses of issues provided to Ministers should be accessible, subject of course to other exemptions in the Act. However, this change would require that a new format be developed for Cabinet documents. It would also require that directives be given to public servants on the proper separation of facts from advice and recommendations in documents prepared for Cabinet. Irish officials told us that they were working on an electronic format for Cabinet documents that could allow for easy severance of factual information. The Canadian government should consider adopting this approach.

Similar provisions in other jurisdictions limit the protection for background explanations and analyses until the related decision is made public or five years have passed. It is our view that a protective period of five years is appropriate where the decision has not been made public.

Cabinet confidences are now accessible under the Act only after 20 years. The 1986 Parliamentary Committee and the Information Commissioner recommended that such confidences be protected by an exemption for 15 years. We think this is reasonable.

Any number is somewhat arbitrary: the jurisdictions we studied protect Cabinet confidences for time periods ranging from five to 30 years. As noted by the 1986 Parliamentary Committee, a 15-year period represents the life of at least three Parliaments. However, to the extent that Cabinet confidences are covered by other exemptions (e.g. harm to conduct of international affairs), they may be protected for longer than 15 years.

A fundamental principle of the Act enshrined in Section 2 is that decisions on disclosure of government information should be reviewed independently of government. Cabinet confidences are not currently subject to independent review as they are excluded from the Act. Recognizing the special role that Cabinet plays in our parliamentary form of government, the 1986 Parliamentary Committee concluded that a special framework was needed to review Cabinet confidences. The Committee recommended that only a judge of the Federal Court be empowered to carry out this review. We endorse this recommendation.

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Section 21 – Operations of Government

The need to provide some protection for the internal decision-making processes of government is well-recognized. This need is reflected in the access to information regimes of all of the jurisdictions that the Task Force examined. The challenge is to protect what needs to be protected in the public interest, and no more.

Section 21 of the Act is a discretionary exemption allowing the head of a government institution to refuse to disclose a record containing:

• advice or recommendations developed by or for a government institution or a Minister;
  
  
• an account of consultations or deliberations involving officers or employees of a government institution, a Minister, or a Minister’s staff;
  
  
• positions or plans developed for the purposes of negotiations, and considerations related thereto; and
  
  
• personnel management or administrative plans that have not yet been put into effect.

The exemption cannot be claimed for:

• an account of or statement of reasons for, a decision made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; or
  
  
• a report prepared by a consultant or an adviser who was not, at the time the report was prepared, an officer or employee of a government institution or a member of a Minister's staff .

The Access to Information Guidelines set out how this exemption should be invoked. The Guidelines urge institutions exercising their discretion under Section 21 to consider whether disclosing the information will result in injury or harm to the processes for providing advice or recommendations or carrying on consultations and deliberations.

Section 21 is the third most frequently claimed exemption. Requesters and commentators have criticized it for being too broad, and too broadly applied. No one disputes the need for government to conduct some deliberations in private and for ministers to receive the full and frank advice needed for effective policy-making. The issue is how to strike the right balance in the legislation, and in practice, between the principle of openness and the need for some confidentiality. We believe several changes should be made to improve this balance.

A first improvement would be to restrict the scope of Section 21. A wide class of documents prepared for the purposes of the deliberative process within government can obviously be made public, without harming the public interest. Several provinces provide a list of the kind of information not covered by the exemption. This approach has the added benefit of clarifying the nature of the information the exemption is meant to protect.

Draft briefing notes separating policy advice from background facts to allow for easy severance.

There is, of course, a danger that listing the types of information that are not protected might lead officials to protect any information not on the list. On balance, however, we believe that amending Section 21(2) of the Act to extend the list of unprotected records is a good idea.

Records subject to Section 21 can be protected for up to 20 years. The 1986 Parliamentary Committee and the Information Commissioner have both recommended that this period be reduced to 10 years. We agree with this suggestion. In our view, reducing the protective period from 20 to 10 years is unlikely to compromise the frankness or candour of advice being provided to the government, the convention of ministerial responsibility, or the authority of Ministers.

Protection for a government institution’s personnel management and administrative plans ceases once they have been implemented. The point has been made that if plans are rejected, or no decision relating to them is taken, they can stay protected for the full period specified for the exemption (now 20 years). This seems excessive to us. It is our view that the head of a government institution should have the discretion to protect such plans for a reasonable period of time, during which their status may change (e.g. work may cease and recommence a number of times) – but not longer than five years.

We believe that one additional amendment is required to modernize the scope of this exemption. Section 21 does not apply to reports from consultants. The practice of using consultants in government work has changed considerably in the past 20 years. They are now often involved in the policy development process, side by side with public servants, and are asked to provide critical strategic and policy advice to institutions and to Ministers. It is our view that the confidentiality of their advice or the deliberative process itself warrants protection in these cases. In other words, if the nature of the consultants' work is comparable to work done by public servants, it should be treated as such. This is the approach taken by the House of Commons in relation to a response to a Notice of Motion for Production of Papers.⁴ Finally, the majority of jurisdictions we examined extend protection to consultants’ advice and recommendations.

It should be made clear, however, that most consultants’ reports would not qualify as advice or recommendations under this section.

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³Australian Law Reform Commission Report 77, “Open government: a review of the federal Freedom of Information Act 1982,” Commonwealth of Australia 1995, paragraph 9.8.
http://www.austlii.edu.au/au/other/alrc/publications/reports/77/ALRC77.html
⁴The guidelines followed by the House of Commons in determining if government papers or documents should be exempted from production differentiate between consultant studies comparable to the kind of investigation of public policy for which the alternative would be a Royal Commission and which should be produced, and consultant studies “comparable to work that would be done within the Public Service which should be treated as such when consideration is being given to their release.” See Journals, March 15, 1973, p.187.