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Exemption from disclosure: advice, accounts, positions and plans

Contents

Requirements: subsection 21(1)

Subsection 21(1) is a discretionary exemption that aims to protect information about the inner decision-making processes of government. It allows institutions to refuse to disclose the following:

  • advice or recommendations developed by or for a government institution or a minister;
  • accounts of consultations or deliberations in which government employees, ministers or members of a minister’s staff took part;
  • positions or plans developed for negotiations by or on behalf of the Government of Canada; and
  • plans related to institutions’ personnel management or administration when these plans have yet to be put into operation.

The onus is on institutions to establish that the exemption applies to the records. The Office of the Information Commissioner (OIC) will examine the records at issue and analyze the representations provided by the parties to assess whether the institution has properly claimed this exemption.

Note that, unlike some exemptions (e.g. paragraph 16(1)(c)), paragraphs 21(1)(a), (b), (c) and (d) do not contain an injury requirement. This means that it is not necessary to determine that disclosure of the information could cause harm in order for the exemption to apply. 

If the exemption has been properly claimed, the OIC will assess whether the institution reasonably exercised its discretion to refuse to release the information.

Limitations to subsection 21(1)

Subsection 21(1) does not apply in the following situations:

  • where the records are more than 20 years old;
  • where the records are the types described in subsection 21(2)

When the above described conditions are met, there is no need for further analysis. The information in the records cannot be exempted under subsection 21(1).

1. Were the records created more than 20 years before the access request was made?

Subsection 21(1) allows institutions to refuse to disclose any record that contains information described under paragraphs 21(1)(a) to (d) if the requested records were created less than 20 years before the access request was made.

Thus, if the records are more than 20 years old, institutions may not rely on subsection 21(1), and further analysis of this exemption is unnecessary. 

2. Does the information fall under subsection 21(2)?

Subsection 21(2) specifically prohibits institutions from relying on subsection 21(1) to refuse to release the following:

  • records that contain reasons for, or accounts of, decisions that affect the rights of a person made by an institution when exercising discretionary powers or carrying out adjudicative functions (paragraph 21(2)(a)); and
  • reports prepared by consultants or advisers who were not directors, officers or employees of an institution or members of a minister’s staff at the time (paragraph 21(2)(b)).

Subsection 21(2) is therefore an exception to the application of subsection 21(1).

Whether the records contain reasons for, or accounts of, decisions that affect the rights of a person made by an institution when exercising discretionary powers or carrying out adjudicative functions

Paragraph 21(2)(a) applies to decisions made by an institution or its head when exercising its discretionary powers or adjudicative functions that affect the rights of a person.

Since the government makes many decisions that affect the rights of a person, paragraph 21(2)(a) ensures that the public has access to certain decisions and the reasons for them.

“Rights” is not defined in the Act; however, based on principles of statutory interpretation, this term must be interpreted broadly. The relevant case law also provides some guidance as to how this term should be interpreted and applied.

In Telezone I, the Federal Court of Appeal indicated that the word “rights” in paragraph 21(2)(a) meant “legal rights.” In this case, Telezone argued that, pursuant to paragraph 21(2)(a), it was entitled to obtain any records that could be characterized as an account, or statement of reasons, for the Minister of Industry’s licensing decision. The Federal Court of Appeal explained that Telezone, as an applicant for a licence, had no “legal right" to be granted a discretionary licence. In other words, the granting of the licence through a bidding process was simply a benefit that was within the discretion of the decision-maker and, therefore, paragraph 21(2)(a) did not apply.

The Information and Privacy Commissioner of Ontario, when interpreting similar provisions in that province’s freedom of information legislation, described a “legal right” as one “…drawn from…common law or statute law,” in contrast to “a non-legal right based solely on moral or ethical grounds” (see, for example, Cobourg (Town)). While this interpretation is not binding on the OIC or the courts, it provides some guidance on the scope of the term “legal rights.”

Paragraph 21(2)(a) specifies that it applies to “an account of a decision” and/or “statement of reasons for a decision.” Therefore, background material, advice and recommendations used in making the decision affecting a person’s rights are normally not subject to the exception found in paragraph 21(2)(a), unless the decision-maker has incorporated this information into their decision. In Canadian Radio-television and Telecommunications Commission, the Federal Court clearly distinguished the preparatory notes and communications between Commission members from the reasons for the decision, indicating that only the reasons for the decision fall within the exception set out in paragraph 21(2)(a).

Finally, the decision must affect the rights of a person. The word “person” in paragraph 21(2)(a) not only individual human beings, but also corporations (see, for example, Telezone I).

Whether the reports were prepared by consultants or advisers who were not directors, officers or employees of an institution or members of a minister’s staff at the time.

Paragraph 21(2)(b) provides that subsection 21(1) does not apply in respect of a report prepared by a consultant or an adviser who was not, at the time, a director, officer or employee of the institution, or a member of a minister’s staff.

The term “report” is not defined in the Act. The courts have therefore used the ordinary meaning of “report” in analyzing paragraph 21(2)(b).

In Ponts Jacques Cartier et Champlain, the Federal Court relied on the definition found in the Petit Larousse and the Petit Robert dictionaries to establish the meaning of the word “report.”

“Report" is defined as an account of something, or the action of reporting, giving an account of something seen or heard or what is reported, a more or less official account;

The Court noted that the firm that prepared the document had completed its work and submitted its recommendations in the form of a report. The Court also added that even if the institution intended to implement the report at some later stage, this did not change the fact that the record was a report as opposed to a plan, within the meaning of paragraph 21(1)(d).

To determine whether an individual is a consultant or adviser, it is necessary to ascertain whether the individual had the mandate to provide advice, whether they had the ability and experience to provide advice, and whether they were compensated for providing the advice. 

Determining when and how the consultant or adviser was appointed, how they were compensated and whether they were independent, should help to determine whether the individual is a consultant or adviser within the meaning of paragraph 21(2)(b). In general, if there is no apparent employment or subordinate relationship between the individual and the institution or minister, this would usually indicate that the individual is not a director, officer or employee of the institution or a member of a minister's staff.

In Ponts Jacques Cartier et Champlain, the Court concluded that an internal audit report prepared by a private firm fell within the scope of paragraph 21(2)(b).

Requirements of each paragraph

Paragraph 21(1)(a): advice or recommendations

Paragraph 21(1)(a) allows institutions to refuse to release advice or recommendations developed by or for a government institution or a minister. The records that contain the information must have been created less than 20 years before the access request was made.

To claim this exemption, institutions must then show the following:

  • the information is advice or recommendations; and
  • the information was developed by or for a government institution or minister.

Rationale for this exemption

The rationale for this exemption was described by the Federal Court in the Canadian Council of Christian Charities decision. The Court explained that, despite the importance of governmental openness, governments must be allowed a measure of confidentially in the policy-making process, since it often involves false starts, dead ends, wrong turns, changes of mind, soliciting and rejecting advice, re-evaluating priorities and reconsidering the relative importance of relevant factors as an issue is studied more closely. Disclosure of such information could undermine government credibility and effectiveness.

The Supreme Court of Canada subsequently endorsed this explanation in John Doe, a decision made pursuant to Ontario’s Freedom of Information and Protection of Privacy Act. The Supreme Court added that public servants would be less likely to provide full, free and frank advice and recommendations if they knew that their work could be subject to public scrutiny. The Court noted that a decision-maker might also be reluctant to seek written advice and recommendations concerning a controversial subject if they knew that the information could be disclosed.

1. Whether the information is advice or recommendations

Meaning of “advice” and “recommendations”

Paragraph 21(1)(a) is not intended to exempt all communications between public servants. The purpose of the communication must be to give “advice” or to make “recommendations.” 

The words “advice” and “recommendations” are not defined in the Act. However, courts have repeatedly held that “advice” has a distinct and broader meaning than “recommendations.” For example, the Federal Court of Appeal in Prime Minister stated that it would appear that a “recommendation” indicates a suggested course of action, which may or may not be accepted. In contrast, “advice” does not necessarily urge a specific course of action, but may encompass a range of options with pros and cons. See also the Federal Court of Appeal’s Telezone I decision and the Supreme Court’s John Doe decision, both of which make this distinction.

Given that both the words "advice” and “recommendations" feature in paragraph 21(1)(a), a wide range of documents produced as part of an institution's internal policy process can be exempted under this paragraph. In essence, most internal documents that identify a problem or a question, that present a range of possible options or solutions (with arguments for and against) and, in some cases, provide a specific recommendation(s) are covered by paragraph 21(1)(a).

Courts have, however, distinguished between providing “advice” within the meaning of paragraph 21(1)(a) and “advising” someone of a fact. For example, “advice” may be given during a meeting; however, “advising” someone that a meeting will take place is not “advice” (National Defence at paragraph 114).

In Telezone I, the Federal Court of Appeal stated:

I would include within the word “advice”, an expression of opinion on policy-related matters, but exclude information of a largely factual nature, even though the verb “advise” is sometimes used in ordinary speech in respect of a communication that is neither normative, nor in the nature of an opinion. Thus, a police officer may say that she advised the suspect of his legal rights or, when the person in custody asked her the time, the officer advised him that it was two o’clock.

Factual information

The exemption does not extend to objective material or factual information on which the advice or recommendation is based.

Specifically, courts have repeatedly held that information of a factual or statistical nature, or that explains the background to a current policy or legislative provision, may not fall under this exemption.

This means that institutions should disclose factual information, unless the facts are inextricably linked to the advice and recommendations, or would reveal them. Thus, a review of any records containing an account of advice or recommendations is necessary to determine if there is any information that can be severed and disclosed.

In the Prime Minister decision, the Federal Court of Appeal found that the records at issue contained factual information that could reasonably be severed from the advice or recommendations and disclosed without directly or indirectly revealing the exempt information. The Court explained why it was of the view that different parts of the memorandum at issue could reasonably be severed. For example, the Court noted that the second bullet of the memo did not contain any hint of the writer’s opinion regarding what the Clerk should do and that the advice or recommendations was fully set out in the third bullet.

In contrast, in Telezone I, the Federal Court of Appeal found that the institution’s weightings in evaluating licence applications did not constitute factual information. Telezone argued that the documents were no more than a factual account of how the working group evaluating the applications had performed its task. However, the Court found that the content of the documents contained advice, not merely factual information. The reason for the working group's informing the selection panel, and ultimately the Minister, of the basis of its evaluations was to suggest to the Minister the appropriate rankings of the applications, not just to give an account of how it had gone about its work.

Final decisions

A record that, when it was developed, was considered to be “advice or recommendations” within the meaning of paragraph 21(1)(a) does not cease to be such solely because the decision-maker has approved it and used it as the basis of a decision.

The Federal Court of Appeal found this to be the case in two Telezone decisions (Telezone I and Telezone II). However, in both decisions, the Court noted that it might be a different situation if, after receiving advice or recommendations, a separate document containing the decision and reasons were developed. In that case, the Court speculated that such a document might not contain “advice” within the meaning of paragraph 21(1)(a).

The Federal Court’s Public Safety and Emergency Preparednessdecision is an example of a case in which a document, specifically a protocol, was developed based on both legal and policy advice. The Federal Court found that the protocol itself did not contain advice as it was an agreement between institutions, and that it would be impossible to know whether or not the protocol actually reflected the advice received. On this basis, the court held that paragraph 21(1)(a) could not apply. Note that at the Federal Court of Appeal, the court reversed this finding with regards to a small portion of the record which, it was found, did reveal the substance of legal advice provided.

2. Whether the information was developed by or for a government institution or a minister

“Government institution” is defined at section 3 of the Act as

(a) any department or ministry of state of the Government of Canada, or any body or office, listed in Schedule I, and

(b) any parent Crown corporation, and any wholly-owned subsidiary of such a corporation, within the meaning of section 83 of the Financial Administration Act.

While the information must have been developed by or for a government institution or minister, it does not have to have been communicated to someone within the institution in order to be exempt from disclosure.

Courts have found that early drafts of advice that were not communicated to the decision-maker (as opposed to later versions that were) nonetheless constituted advice (John Doe). Courts have also held that a record used to assist public servants in formulating advice or recommendations that were integral to the process by which policy advice was developed constituted advice, despite its not being communicated as advice to the ultimate decision-maker (Telezone I). 

Paragraph 21(1)(b): accounts of consultations or deliberations

Paragraph 21(1)(b) allows institutions to refuse to release accounts of consultations or deliberations in which government employees, ministers or members of a minister’s staff took part. The records that contain the information must have been created less than 20 years before the access request was made.

To claim this exemption, institutions must then show the following:

  • The information is an account—that is, a report or a description.
  • The account is of consultations or deliberations.
  • At least one of an institution’s directors, officers or employees, a minister or a member of a minister’s staff was involved in the consultations or deliberations.

Rationale for this exemption

The rationale for this exemption is the same as for paragraph 21(1)(a), and was described by the Federal Court in Canadian Council of Christian Charities.

Just as public servants may be less likely to provide full, free and frank advice or recommendations if they know their work could be subject to public scrutiny (21(1)(a)), they may be equally less inclined to express their views openly during consultations or deliberations if they know that the accounts of these exchanges could be disclosed. The purpose of paragraph 21(1)(b) is thus to protect views given during consultations or deliberations in order that they continue to be expressed frankly. 

1. Whether the information is an account

The term “account” is not defined in the Act.

Courts have given it its ordinary meaning, referring to the definition in the Treasury Board Manual: “a particular statement or narrative of an event or thing; a relation, report or description.” (See, for example, Toronto Port Authority at paragraph 85.)

Therefore, to qualify for exemption, the information must be a report or description of consultations or deliberations.

2. Whether the account is of consultations or deliberations

The account must be of either consultations or deliberations. As with “account,” the Act does not define “consultations” or “deliberations.” Courts have agreed that these terms should be given their ordinary meaning as set out in the Treasury Board Manual. 

The Treasury Board Manual defines “consultation” and “deliberation” as follows:

Consultation means:

  • the action of consulting or taking counsel together: deliberation, conference;
  • a conference in which the parties (for example, lawyers or medical practitioners) consult and deliberate.

Deliberation means:

  • the action of deliberating (to deliberate: to weigh in mind; to consider carefully with a view to a decision; to think over); careful consideration with a view to a decision;
  • the consideration and discussions of the reasons for and against a measure by a number of councillors.

Given these definitions, only information describing the consultations undertaken, the deliberations held, the advice provided or the exchange of views leading to a particular decision qualifies as an account under paragraph 21(1)(b). This means that, as is the case with paragraph 21(1)(a), documents containing information of a factual or statistical nature or providing an explanation of the background to a current policy or legislative provision do not fall within the exemption.

This also means that institutions should disclose factual information, unless the facts are inextricably linked to the account of consultations or deliberations, or would reveal the content of the consultations or deliberations held. Thus, a review of any records containing an account of consultations or deliberations is necessary to determine if there is any information that can be severed and disclosed.

In Canadian Council of Christian Charities, the Federal Court noted that it is difficult to avoid the conclusion that the combined effect of paragraph 21(1)(a) and (b) is to exempt a very wide range of records generated in the course of the government institution’s internal policy processes. Thus, most records that identify a problem, explore ranges of solutions and provide recommendations for change are likely to be covered by either paragraph 21(1)(a) or (b).

Canadian Radio-television and Telecommunications Commission is an example of a decision in which the Federal Court upheld the use of paragraph 21(1)(b) to refuse to disclose excerpts of records relating to certain meetings of the Commission’s Executive Committee. The Court noted that it is absolutely essential that communications between Committee members during the preparation of a decision remain confidential and that paragraph 21(1)(b) provides a specific exemption from disclosure that is entirely appropriate.

In Newfoundland Power, the Federal Court found that a memorandum signed by two institutional officials containing analysis of various strategic and legal alternatives was protected under paragraph 21(1)(b). The Court also found that any recommendation made by managers or employees regarding the position that the Minister of National Revenue should take on a taxpayer’s notice of objection was similarly protected.

However, in Toronto Port Authority, the Federal Court found that the fact that a committee member had proposed changes to the draft minutes of a previous meeting did not reflect a “consultation” or “deliberation.” The Court explained that while minutes of an executive committee meeting normally report “consultations” and “deliberations,” this does not mean that these documents are automatically exempt in their entirety. In this case, the information did not identify a problem, purport to analyze or consider an issue, canvass solutions or contain recommendations. It was simply a factual statement indicating that a committee member had proposed changes to the draft minutes. This statement did not reflect any discord, nor did it betray the content of consultations or deliberations, that may have occurred previously or in the course of the meeting.

Similarly, in Rubin, the Court considered the blanket application of paragraph 21(1)(b) over the agendas and meeting minutes of the Canada Mortgage and Housing Corporation’s Board of Directors. Based on a cursory review of the records, the Court held that the exemption did not apply, commenting that many of the matters discussed at the meetings, and detailed in the records, in no way constituted an account of consultations or deliberations.

3. Whether at least one of an institution’s directors, officers or employees, a minister or a member of a minister’s staff was involved in the consultations or deliberations

The final requirement of paragraph 21(1)(b) concerns the identity of the individuals who must have participated in the consultations or deliberations. For this requirement to be met, it is only necessary that one of the following individuals participated:

  • a director of a government institution
  • an officer of a government institution
  • an employee of a government institution
  • a minister
  • a member of a minister’s staff.

Paragraph 21(1)(b) does not require a representative of the institution claiming the exemption to have participated in the consultations or deliberations. Rather, the requirement is that a director, officer or employee of a government institution, a minister or a member of a minister’s staff must have participated. However, the participation is key: the individual must have taken part in the consultations or deliberations for the exemption to apply.

Paragraph 21(1)(c): positions or plans developed for negotiations

Paragraph 21(1)(c) allows institutions to refuse to release positions or plans developed for negotiations by or on behalf of the Government of Canada. The records that contain the information must have been created less than 20 years before the access request was made.

To claim this exemption, institutions must then show the following:

  • the information consists of positions or plans developed for negotiations or related considerations; and
  • the negotiations are being, or are to be, carried on by or on behalf of the Government of Canada.

1. Whether the information consists of positions or plans developed for negotiations or related considerations

The terms “position” and “plan” are not defined in the Act and should therefore be given their ordinary meaning. The Treasury Board Manual defines these terms as follows:

Position: “attitude or opinion, stand; a way of regarding situations or topics; an opinion that is held in opposition to another in an argument or dispute.”

Plan: “a formulated and especially detailed method by which a thing is to be done; a scheme or method of acting or proceeding developed in advance; an intention or proposed proceeding; an outline, drawing or diagram.”

Paragraph 21(1)(c) also extends its protection to considerations relating to the positions or plans developed for negotiations. 

The Act does not define the term “consideration.” The Treasury Board Manual defines it as follows:

Consideration: “the act of considering; careful thought; a fact or a thing taken into account in deciding or judging something”

Thus, a record describing the facts, circumstances or factors considered in formulating positions or plans developed for negotiations could also fall within the scope of this exemption. The considerations must relate directly to the positions or plans. 

2. Whether the negotiations are being, or are to be, carried on by or on behalf of the Government of Canada.

Paragraph 21(1)(c) protects positions or plans to the extent that they are developed for the purposes of negotiations. At the time paragraph 21(1)(c) is applied, these negotiations may be ongoing, upcoming or have already taken place. The wording of paragraph 21(1)(c) is notably broad. 

The Treasury Board Manual provides the following examples of the type of information that might be covered by the paragraph 21(1)(c): positions, plans or related considerations developed by government negotiators for the purposes of negotiations related to labour, financial and commercial contracts.

Finally, the negotiations must be by or on behalf of the Government of Canada. As indicated in the Treasury Board Manual, this means that the negotiations must be with parties outside the federal government and do not include negotiations carried on or to be carried on among federal government institutions.

The Information and Privacy Commissioner of Ontario, when interpreting similar provisions in that province’s freedom of information legislation (Order PO-2064), found that the exemption was intended to apply in the context of financial, commercial, labour, international or similar negotiations, as opposed to discussions with various stakeholders when developing policy with a view to introducing new legislation. While this interpretation is not binding on the OIC or the courts, it provides some guidance on the interpretation of paragraph 21(1)(c).

Paragraph 21(1)(d): plans related to personnel management or administration

Paragraph 21(1)(d) allows institutions to refuse to release plans related to institutions’ personnel management or administration when these plans have yet to be put into operation. The records that contain the information must have been created less than 20 years before the access request was made.

To claim this exemption, institutions must then show the following:

  • the information consists of plans;
  • these plans relate to the institution’s personnel management or administration; and
  • these plans have not yet been put into operation.

1. Whether the information consists of plans

The term “plan” is not defined in the Act and should therefore be given its ordinary meaning. The Treasury Board Manual defines “plan” as follows:

Plan: “a formulated and especially detailed method by which a thing is to be done; a scheme or method of acting or proceeding developed in advance; an intention or proposed proceeding; an outline, drawing or diagram.”

2. Whether these plans relate to the institution’s personnel management or administration

Paragraph 21(1)(d) allows institutions to protect from disclosure plans relating to the internal management of the government institution.

The Treasury Board Manual provides the following examples of records that could fall under this exemption: plans about the relocation or reorganization of a government institution or the management of personnel, and plans to abolish positions or programs.

3. Whether these plans have not yet been put into operation

Unlike paragraph 21(1)(c), paragraph 21(1)(d) is an exemption that is only temporarily available to institutions; once a plan is put into operation, information about it can no longer be protected under this exemption.

Following an OIC investigation, the Information Commissioner determined that a plan should be considered to have been put into operation once it has been formally approved, notice has been given by a final authority of the plan’s existence and the implementation of that plan has begun. The Commissioner found that there is nothing in the Act that indicates that the plan must be fully implemented in order for it to be considered to have been put into operation.

However, while a final plan that has been put into operation cannot be protected under paragraph 21(1)(d), options that were considered prior to deciding on the plan, and which were never put into operation, can benefit from this exemption.

Exercise of discretion

Subsection 21(1) is a discretionary exemption. Therefore, in all instances in which information qualifies for exemption under subsection 21(1), institutions are required to reasonably exercise their discretion to decide whether to disclose it.

The exercise of discretion should be evaluated with deference to the institution. Deference means restraint and respect for the institution in evaluating a decision that the Act empowers the institution to make. 

When evaluating the exercise of discretion, the following issues should be determined:

  • whether the institution turned its mind to the exercise of discretion
  • whether the institution considered all relevant factors in the exercise of discretion
  • whether the institution’s decision on the exercise of discretion is justified, transparent and intelligible.

1. Whether the institution turned its mind to the exercise of discretion

The OIC must be satisfied that the institution understood that it had discretion and then exercised that discretion. This determination is to be made on the evidence and representations before the OIC. 

2. Whether the institution considered all relevant factors in the exercise of discretion

Relevant factors that must be considered include the following:

  • the purpose of the Act
  • the purpose of the exemption claimed
  • the public interest in disclosure
  • the risk of harm from disclosure.

This list is not exhaustive; the existence of other relevant factors will depend on the circumstances of each case.

The OIC must be satisfied, based on the evidence and representations before it, that all relevant factors were considered. This requires more than a boilerplate declaration by the institution that all relevant factors were considered, but it need not require a detailed analysis of each and every factor and how they were weighed against each other (Federal Court of Appeal in Prime Minister).

Put another way, the institution does not have to explain in full detail that it considered factors x, y and z, assigned particular weighting to each factor and then exercised its discretion by deciding whether to disclose. 

Instead, the OIC may infer from the evidence before it that the institution considered relevant factors even if it did not expressly discuss them in its representations.

Apart from relevant factors, no irrelevant or improper factors can be considered in an exercise of discretion, including potential embarrassment to an institution.

3. Whether the institution’s decision on the exercise of discretion is justified, transparent and intelligible

It is possible to determine by inference whether the institution’s decision on the exercise of discretion is justified, transparent and intelligible, based on the evidence and representations before the OIC. Justification, transparency and intelligibility notably require the following:

  • discernible, rational and logical in the circumstances reasoning behind the exercise of discretion
  • evidence on who exercised discretion and their authority to do so
  • factors considered
  • reasons for the decision, as found by the Federal Court of Appeal in Prime Minister.

The decision of the institution is to be evaluated as a whole, including its rationale and outcome.

References

See also, the Commissioner’s decisions on the OIC website.

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