Ontario CA opens up the advice and recommendation exemption

25 Feb

Today the Court of Appeal for Ontario took a significant step to clarify the scope of the “advice and recommendation exemption” in Ontario access-to-information legislation. It held that the Information and Privacy Commissioner/Ontario erred in applying an extremely restrictive interpretation of two 2005 Court of Appeal decisions.

The Court first affirmed the meaning of “advice” and “recommendations” it articulated in 2005. “Advice” is “material that permits the drawing of inferences with respect to a suggested course of action.” A “recommendation” actually suggests a preferred course of action. Background facts that support advice and recommendations are not exempt from disclosure.

The Court then made two important clarifications.

First, the Court clarified that the entire deliberative process is protected. The IPC erred, it held, by imposing a requirement that exempt information must go to the final decision maker. In doing so, it quoted Justice Evans of the Federal Court of Appeal, who said “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.”

Second, the Court clarified that the presentation of a range of options may be properly withheld. The IPC erred, it held, by imposing a requirement that exempt information identify a single course of action.

The advice and recommendation exemption is a very important exemption that has always been interpreted extremely narrowly by the IPC. This decision breathes life into the exemption in a manner that will please institutions which, quite legitimately, crave a healthy zone of privacy in which to deliberate so they can make optimal decisions about policy and other matters.

Ontario (Finance) v. Ontario (Information and Privacy Commissioner), 2012 ONCA 125.

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