Section 69: Cabinet confidences

Preliminary Matters

The Access to Information Act, R.S.C. 1985, c. A-1, (the Act) gives any Canadian citizens or permanent resident within the meaning of the Immigration Act and any individual or any corporation present in Canada a right (of access) to most records under the control of the Federal Government. More specifically, our Act provides for access to all information in records controlled by government institutions listed in Schedule I of the Act unless there is a specific provision in the Act that permits or requires the head of the government institution to refuse to disclose the information, or unless the records (or part thereof) are excluded under section 68 or 69.

Section 69 is an exclusion requiring a two step process. First, the Head must determine that the record or part thereof contains certain information which falls within the class enunciated in the exclusion. Then, the Head must determine whether either of the exceptions contained in subsection 69(3) apply.

The Test

At the present time, there have been only a few decisions from the Federal Court of Canada on the criteria to be met in order for this provision to apply.

Subsection 69(1) is an exclusion applying to confidences of the Queen’s Privy Council for Canada. Consequently, once the Head determines that a record or part thereof contains certain information which falls within the class enunciated in the exclusion, he or she can then refuse to grant access to the requested information unless either of the exceptions in subsection 69(3) applies.

The history of Cabinet confidences generally begin with the House of Lords decision in Duncan and Another v. Cammell, Laird & Co. Ltd. The House of Lords held in that case that an affidavit of a Minister stating that disclosure of documents would harm the public interest was taken as absolute, without review by the courts. The Duncan and Another case described the common law position until 1968 when the House of Lords revised the common law with the Conway v. Rimmer and Another decision. In that case, the Court held that it could examine documents which the Minister claimed would injure the public if disclosed. The Court held that while deference should be shown to the Minister's position, the final decision should lie with the courts.

After the Conway v. Rimmer decision, Parliament enacted subsection 41(2) of the Federal Court Act. Subsection 41(2) followed the position of the House of Lords in Duncan and Another. In other words, all that was required was an affidavit that the document came within one of these categories and the Court was precluded from examination of the document.

The Access Act was enacted in 1982, repealing subsection 41(2) of the Federal Court Act. Section 69 of the Access Act and s. 39 of the Canada Evidence Act formed part of the same Bill and were enacted together. These two provisions have similar effects, s. 69 excludes from the application of the Access Act documents and records which are considered Cabinet confidences, and s. 39 excludes from the application of the Canada Evidence Act information which is considered a Cabinet confidence.

The Cabinet Paper System evoluted since the passage of the Access Act. When the Access Act was first passed in 1982, the Cabinet Paper System produced two records: the Memorandum to Cabinet and the "discussion paper" containing background explanations, analyses of problems and policy options. In 1983, an Official of the PCO, was asked to propose reforms to the Cabinet Paper System. The Official of the PCO recommended that supporting background information and analysis be put in appendices to the Memorandum to Cabinet, and that "discussion papers" be understood as papers prepared by government departments as part of a planned communications strategy. The Cabinet Paper System recommended by the Official of the PCO was adopted by the PCO in early 1984.

The format of the Memorandum to Cabinet was changed slightly in 1986 and remains in place today. The Memorandum to Cabinet is now divided into two sections: the ministerial recommendations section and the analysis section. The analysis section now contains the background information and analysis formally found in "discussion papers" as understood when the Access Act was first passed in 1982.

The determination as to whether section 69 applies to requested information is a multi-step process. Each step should be followed carefully in order to avoid undesirable mistakes. The following will summarize the steps you should follow:

1) Step I:

Determine whether the requested information constitutes confidences of the Queen’s Privy Council of Canada for the purpose of the Access to Information Act. To do so, you must determine whether the requested information consist of:

(a) memoranda the purpose of which is to present proposals or recommendations to Council;

(b) discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;

(c) agenda of Council or records recording deliberations or decisions of Council;

(d) records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;

(e) records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d);

(f) draft legislation; and

(g) records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f).

The examples of confidences of the Queen’s Privy Council for Canada contained in section 3 of the Access to Information Act is not exhaustive. The sections includes 7 examples of what could constitute confidences of the Queen’s Privy Council. These specific examples are not in any way exhaustive and only serve to illustrate the principal types of material the legislator had in mind when creating the provision. It is very important to remember that these paragraphs are examples only and do not in any way guarantee that the information is necessarily confidences of the Queen’s Privy Council.

2) Step II:

Determine whether the requested information falls within subsection 69(3) of the Access to Information Act. This subsection excludes from the exclusion information where:

• Confidences of the Queen’s Privy Council for Canada that have been in existence for more than twenty years; or
• Discussion papers described in paragraph b) have been made public or
• The decision have not been made public, if four years have passed since the decisions were made.

Before excluding information pursuant to subsection 69(1) of the Act, the institution Head must first make the determination as to whether any of the conditions enumerated in subsection 69(3) are present. Once any of these conditions are fulfilled, the head of the government institution is required to disclose the requested information.

The Head of a government institution has the duty to determine whether these conditions are present (determining whether the confidences has been in existence for more than twenty years or the decisions to which the discussion papers relate have been made public or if four years have passed since the decisions were made). In a case involving a consent override in the Privacy Act (section 19(2) Privacy Act section 13(2) Access to Information Act)), for example, the Federal Court of Appeal stated that the request for information itself “includes a request to the head of a government institution to make reasonable efforts to seek the consent of the third party which provided the information.” The Court noted that the evidentiary burden lies on the government institution to show that the exception in subsection 19(2) of the Privacy Act (subsection 13(2) Access to Information Act) for consent does not apply given the inability of the requester to know who to ask for consent or what the withheld information consists of. The test enunciated by the Court with respect to the application of the consent override in subsection 19(2)(a) (subsection 13(2)(a) of the Access to Information Act) was whether the government institution has made reasonable efforts to seek the consent of the other government or institution. See: Ruby v. Canada (Solicitor General) (2000) 3 F.C. 589, [2000] F.C.J. 779, 187 D.L.R. (4th) 675, 256 N.R. 278, 6 C.P.R. (4th) 289, leave to appeal to the Supreme Court allowed, [2000] S.C.C.A. No. 353 (S.C.C.) The same criteria applies with regard to subsection 69(3) of the Act.

Procedures for Departments:

When the relevant documents have been identified in response to a request, and departmental officials with expertise in the subject matter consider records or portions of records to contain cabinet confidences, these records will be recorded as being so on a schedule.

The ATIP Coordinator for the government institution will send the documents in question, along with a covering letter and a schedule which outlines the explanations as to why certain records or portions thereof should be excluded under Section 69 to Legislation and House Planning / Counsel to the Clerk of the Privy Council. Government policy requires that government institutions consult with LHP/Counsel in all instances where information may qualify as a Cabinet Confidence.

With respect to administering requests, which entail the processing of records of Cabinet, Departmental ATIP officials are guided by Treasury Board Implementation Reports as well as the Treasury Board Guidelines for interpreting the Access to Information Act. Appendix D of Chapter 3-4 of these Guidelines stipulates that the Schedule of Cabinet documents should contain certain elements as follows:

Document Description and Proposal

1. Letter to:

From:

Date:

Proposal: Exclude 69(1)

2. Treasury Board Submission

Date:

Proposal: Exclude 69(1)(a)

3. Briefing Note to:

From:

Date:

Proposal: e.g. sever

Page & paragraph

69(1)( )

Exclude page() 69(1)(a)

Types of Documents:

Subsection 69 of the Act contains a list of types of documents which fall within the broad group referred to as confidences of the Queen’s Privy Council for Canada. The following are some examples organized by subject. The list identified by subsection 69(1) is outlined in greater detail further below:

Subject Document

Accommodation Treasury Board Submissions

including major capital construction projects

Acts and Legislation Draft Legislation

Cabinet Documents Cabinet Memorandum

Cabinet Decisions

Cabinet Agenda

Cabinet Material

Committees Agenda, notices, minutes and

Reports of Cabinet Committees

Briefing notes to a Minister on

Cabinet Committees

Estimates and Budgets Treasury Board Submissions

Informatics Treasury Board Submissions

Policies, Plans and TB Submissions for Reference

Programs levels for future planning

Staffing Restraints Resource planning information for inclusion in TB Submissions

TB Submissions and Drafts, précis, decision letters,

Aide-Mémoire briefing notes, memoranda and correspondence directly related to a TB submission and aide-mémoire.

69(1)(a) Memoranda

Paragraph 69(1)(a) refers to records the purpose of which is to present proposals or recommendations to Cabinet. Generally, a memorandum presenting proposals to Cabinet will be signed by the minister recommending the action, but it may also be signed by the secretary to the Cabinet or the Secretary to a Committee of Cabinet.

Draft memoranda are also confidences. Thus, draft memoranda that are created but never presented to Cabinet are confidences. Equally, final memoranda that are not presented to Cabinet are also confidences.

Material appended to a memorandum presented to Cabinet will not necessarily be a confidence. For example, memoranda to Council may include as appendices such items as newspaper clippings, statistical tables, and reports prepared for use within the department, etc. These records in their original state are not confidences.

Records that contain advice or recommendations developed by or for a government institution or a Minister of the Crown as outlined by paragraph 21(1)(a) of the Act must be distinguished from records described by paragraph 69(1)(a) of the Act by examining the purpose for which they were prepared. It should be noted that Memoranda to Cabinet are prepared for the purpose of presenting recommendations or proposals to Cabinet.

69(1)(b) Discussion papers

Paragraph 69(1)(b) refers to records the purpose of which is to present background explanations, analyses of problems or policy options to Cabinet for consideration by Cabinet in making decisions.

Pursuant to paragraph 69(3)(b), once a decision to which a discussion paper relates has been made public, that paper is no longer considered to be a confidence. Also if the decision to which the discussion paper relates is not made public, but four years has passed since the decision was made, then the discussion paper is no longer considered to be a confidence. Note that where no decision has been made, paragraph 69(3)(b) does not apply.

69(1)(c) Agenda and Records of Cabinet Deliberations

Paragraph 69(1)(c) refers to agenda of cabinet and records recording the deliberations and decisions of Cabinet. This type of record includes agenda of meetings of Cabinet and Cabinet committees, the minutes of any meetings of Cabinet and the records of the decisions made in such meetings. While the substance of the Cabinet decision is often made public, the formal Record of Decision remains a confidence.

69(1)(d) Records of Communications between Ministers

Paragraph 69(1)(d) refers to records used for or reflecting communications between Ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy.

These records may be a letter from one minister to another setting out the minister’s opinions or decisions. This category can also include notes taken during informal discussions between ministers and any record prepared for the use of a minister in discussion with a colleague or colleagues.

Records of communications between ministers that were not used to or do not reflect discussions relating to the making of government decisions or the formulation of government policy do not fall under this category.

69(1)(e) Records to Brief Ministers

Paragraph 69(1)(e) refers to records the purpose of which is to brief Ministers of the Crown in relation to matters that are before, or are proposed to be brought before Cabinet. It also refers to records the purpose of which is to brief ministers in relation to matters that are to be the subject of communications or discussions between ministers concerning the making of government decisions or the formulation of government policy.

69(1)(f) Draft Legislation

Paragraph 69(1)(f) refers to draft legislation. This provision relates to any drafts of proposed legislation and it is not relevant whether the legislation was ever introduced into the House or the Senate or seen by Cabinet.

Draft legislation includes draft Bills, draft regulations and draft Orders in Council. Draft legislation remains a confidence even after the final version is introduced in the House of Commons, subject to paragraph 69(3)(a) of the Act.

69(1)(g) Records Containing Information about

Confidences

Paragraph 69(1)(g) refers to records that contain information about the contents of any record specifically listed in paragraphs 69(1)(a) through 69(1)(f). This paragraph does not cover records which simply contain information that is listed in 69(1)(a) through 69(1)(f). In order for the paragraph to apply, the record must connect the information provided to the collective decision-making and policy formulation processes of ministers.

Severability is more readily applied with this exclusion.

CASE LAW

1) 69(1) - Generally

Gogolek v. Canada ( Attorney General) [1996], 107 F.T.R. 123 (T.D.)

• Section 69(1) states that "[t]his Act does not apply to confidences of the Queen's Privy Council for Canada", which includes the documents and material set out in ss. 69(1)(a) to (g). There is no discretionary power vested in a governmental department that would allow that department to make such confidences accessible to the public. See contra.Babcock v. Canada (Attorney General), [2002] S.C.C. 57

2) 69(1)b):

Canada (Information Commissioner) v. Canada (Minister of the Environment) [2001] F C T 277 (T.D.)

• When the Access Act was passed in 1982, a drafter's manual was prepared for government officials. This manual was to serve as a guideline on the preparation of Cabinet papers. The manual described "discussion papers" as follows:

Normally a department or agency wishing to initiate a policy proposal will begin with the preparation of a Discussion Paper. That paper will describe the problem or issue and, where relevant, contain a full discussion of the alternatives for dealing with it. It will not contain recommendations or the political or other sensitive considerations and argumentation bearing on or leading to them.

The purpose of the discussion paper is to present a thorough discussion of the issue and the alternatives for dealing with it. The originating minister's conclusion about what needs to be done, his reasons for reaching that conclusion, and any specific recommendations that might flow from it are to be presented in the separate Memorandum to Cabinet. However, it is good form to close the discussion paper with a recapitulation of the main points and, where applicable, a statement of the decision required.

Canada (Information Commissioner) v. Canada (Minister of the Environment) [2001] F C T 277 (T.D.)

• The format of the Memorandum to Cabinet was changed slightly in 1986 and remains in place today. The Memorandum to Cabinet is now divided into two sections: the ministerial recommendations section and the analysis section. The analysis section now contains the background information and analysis formally found in "discussion papers" as understood when the Access Act was first passed in 1982.

Canada (Information Commissioner) v. Canada (Minister of the Environment) [2001] F C T 277 (T.D.)

• The correct meaning of a "discussion paper" intended in paragraphs 69(1)(b) and 69(3)(b) of the Access Act is information the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions. If this information exists but is included in a Memorandum to Cabinet, the next step is to determine whether this information can be reasonably severed from the Memorandum to Cabinet pursuant to s. 25 of the Access Act. If the information can be reasonably severed, it must be released to the public.

Canada (Minister of the Environment ) v. Canada (Information Commissioner), [2003]

F C A 68

• It is not intended that the person charged with the review of the documents conduct a line by line analysis and identify, for example, information about a background explanation within part of a document which cannot stand alone as a "discussion paper". What is required is that the person determine whether there is within or appended to the documents an organized body or corpus of words which, looked upon on it own, comes within the definition.

3) 69(3) - Generally:

Canada (Information Commissioner) v. Canada (Minister of the Environment) [2001] F C T 277 (T.D.)

• There is a clear tension in s. 69 between the general exclusions listed in paragraphs 69(1)(a) to (g), and the exceptions to the exclusions found in paragraphs 69(3)(a) and (b).

The purpose of the Access Act is to extend the right of access to government information. The exclusions listed in paragraphs 69(1)(a) to (g) of the Access Act should be construed in a way which infringes the stated purpose of the Act, the public's right to access, the least.

The interpretation which infringes the public's right to access the least is one which limits the exclusions in paragraphs 69(1)(a) to (g) as much as possible, and gives full effect to the exceptions to the exclusions in paragraphs 69(3)(a) and (b).

Canada (Information Commissioner) v. Canada (Minister of the Environment) [2001] F C T 277 (T.D.)

• By creating exceptions, Parliament intended that certain types of information be released. The Honourable Francis Fox, the Minister who sponsored Bill C-43, stated the following about Parliament's intention:

«On the question of factual material, it seems to me most, if not all of the factual material, will be included in the discussion papers which are to be released, and I do not see why there should be a different rule for factual material that may surround draft legislation. It would come out in the discussion paper...

And it seems to me that the general principle here of saying that the discussion papers are going to be made public after the decision is made public is a clear indication of the desirability of this coming out... Also there is the indication that we want discussion papers to come out; that we want the factual basis on which decisions are taken to be made public».

By enacting the exceptions in paragraph 69(3)(b) of the Access Act and paragraph 39(4)(b) of the Canada Evidence Act, Parliament intended that information containing background explanations, analyses of problems or policy options be released to the public, in order to increase government accountability to the public.

Canada (Minister of the Environment ) v. Canada (Information Commissioner), [2003]

FCA 68

• If the override applies the Minister should be given an opportunity to claim any exemption that might apply, while the case law suggests that a government institution ought to claim the relevant exemptions at the initial stage; at least insofar as non-mandatory exemptions are concerned (see Davidson v. Canada, [1989] 2 F.C. 341 and Canada (Information Commissioner) v. Canada (Minister of National Defence), [1999] F.C.J. No. 522 (Q.L.)).

4) 69(3)b):

Canada (Information Commissioner) v. Canada (Minister of the Environment) [2001] F C T 277 (T.D.)

• When the Access Act was passed in 1982, a drafter's manual was prepared for government officials. This manual was to serve as a guideline on the preparation of Cabinet papers. The manual described "discussion papers" as follows:

Normally a department or agency wishing to initiate a policy proposal will begin with the preparation of a Discussion Paper. That paper will describe the problem or issue and, where relevant, contain a full discussion of the alternatives for dealing with it. It will not contain recommendations or the political or other sensitive considerations and argumentation bearing on or leading to them.

The purpose of the discussion paper is to present a thorough discussion of the issue and the alternatives for dealing with it. The originating minister's conclusion about what needs to be done, his reasons for reaching that conclusion, and any specific recommendations that might flow from it are to be presented in the separate Memorandum to Cabinet. However, it is good form to close the discussion paper with a recapitulation of the main points and, where applicable, a statement of the decision required.

Canada (Information Commissioner) v. Canada (Minister of the Environment) [2001] F C T 277 (T.D.)

• The format of the Memorandum to Cabinet was changed slightly in 1986 and remains in place today. The Memorandum to Cabinet is now divided into two sections: the ministerial recommendations section and the analysis section. The analysis section now contains the background information and analysis formally found in "discussion papers" as understood when the Access Act was first passed in 1982.

Canada (Information Commissioner) v. Canada (Minister of the Environment) [2001] F C T 277 (T.D.)

• The correct meaning of a "discussion paper" intended in paragraphs 69(1)(b) and 69(3)(b) of the Access Act is information the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions. If this information exists but is included in a Memorandum to Cabinet, the next step is to determine whether this information can be reasonably severed from the Memorandum to Cabinet pursuant to s. 25 of the Access Act. If the information can be reasonably severed, it must be released to the public.

Canada (Information Commissioner) v. Canada (Minister of the Environment) [2001] F C T 277 (T.D.)

• Given that paragraph 69(3)(b) of the Access Act and paragraph 39(4)(b) of the Canada Evidence Act are almost identical, the same logic applies to both sections. The extrinsic evidence points to the existence of information the purpose of which is to provide background explanations, analyses of problems, or policy options within the documents at issue. Such information, therefore, cannot be withheld pursuant to ss. 39(1) of the Canada Evidence Act and should be disclosed since it is excepted pursuant to subparagraph 39(4)(b)(i) of the Act. It follows that a certificate issued under ss. 39(1) of the Canada Evidence Act cannot be invoked to withhold information that is excepted by virtue of subparagraph 39(4)(b)(i).

Canada (Minister of the Environment ) v. Canada (Information Commissioner), [2003]

FCA 68

• It is not intended that the person charged with the review of the documents conduct a line by line analysis and identify, for example, information about a background explanation within part of a document which cannot stand alone as a "discussion paper". What is required is that the person determine whether there is within or appended to the documents an organized body or corpus of words which, looked upon on it own, comes within the definition.

5) Scope of review:

Babcock v. Canada (Attorney General), [2002] S.C.C. 57

• The judgment of the supreme court of Canada in Babcock makes clear that the courts can review decisions which "do not flow from statutory authority clearly granted and properly exercised" and may consider "surrounding evidence" to determine whether statutory power has been properly exercised (see Babcock, at paragraphs 39-41).

Babcock v. Canada (Attorney General), [2002] S.C.C. 57

• With respect to the standard of review to be applied, the standard of correctness is the appropriate standard.

Babcock v. Canada (Attorney General), [2002] S.C.C. 57

• The court, person or body reviewing the issuance of a s. 39 certificate works under the difficulty of not being able to examine the challenged information. A challenge on the basis that the information is not a Cabinet confidence within s. 39 thus will be generally confined to reviewing the sufficiency of the list and evidence of disclosure. A challenge based on wrongful exercise of power is similarly confined to information on the face of the certificate and such external evidence as the challenger may be able to provide.

Babcock v. Canada (Attorney General), [2002] S.C.C. 57

• The supreme court of Canada in this case found that information filed in a public affidavit could not described as cabinet confidence.

Babcock v. Canada (Attorney General), [2002] S.C.C. 57

• The Supreme Court of Canada has confirmed the common law principle that the public interest in disclosure must be weighed against the public interest in retaining confidentiality—even in the context of Cabinet Confidences: Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3, at paragraphs 22, 28.

 

 

 

Table of Authorities

69(1) - Generally

Gogolek v. Canada ( Attorney General) [1996], 107 F.T.R. 123 (T.D.)

69(1)b):

Canada (Information Commissioner) v. Canada (Minister of the Environment) [2001] F C T 277 (T.D.)

Canada (Minister of the Environment ) v. Canada (Information Commissioner), [2003] F C A 68

69(3) - Generally:

Canada (Information Commissioner) v. Canada (Minister of the Environment) [2001] F C T 277 (T.D.)

Canada (Minister of the Environment ) v. Canada (Information Commissioner), [2003] F C A 68

69(3)b):

Canada (Information Commissioner) v. Canada (Minister of the Environment) [2001] F C T 277 (T.D.)

Canada (Minister of the Environment ) v. Canada (Information Commissioner), [2003] F C A 68

Scope of review:

Babcock v. Canada (Attorney General), [2002] S.C.C. 57