CBC filed a freedom of information request for the 23 mandate letters following 2018 election
Ontario Premier Doug Ford’s 2018 cabinet mandate letters are protected from disclosure by the cabinet records exemption in the Freedom of Information and Protection of Privacy Act (FIPPA), the Supreme Court of Canada found this morning.
In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4, the court balanced the public’s right to know about the workings of government and the “confidentiality the executive requires to govern effectively.” Section 12(1) of FIPPA protects records that would reveal the “substance of deliberations” of cabinet or its committees. In a unanimous ruling, the court found that exemption includes the cabinet mandate letters Ontario refused to disclose to a CBC reporter following the 2018 election.
Justin Safayeni, who represented CBC in the case, says the SCC’s ruling makes the cabinet records exemption broader than how the Information and Privacy Commissioner of Ontario (IPCO) has interpreted it for more than 30 years. He says the reasons also suggest that reviewing courts will afford less deference to IPCO decisions interpreting and applying the exemption.
“Both developments will further restrict public access to cabinet records, which are already one of the hardest categories of information to obtain,” says Safayeni, a partner at Stockwoods LLP. “That is a disappointing development for those in favour of greater public transparency when it comes to cabinet records specifically and the inner-workings of government in general.”
The Canadian Civil Liberties Association (CCLA) intervened in the case and argued that s. 12(1) should be interpreted narrowly. The purpose freedom-of-information legislation is to allow the media and the public access to the information that is necessary to hold government accountable, says Iris Fischer, counsel for the CCLA and a partner at Blake, Cassels & Graydon LLP. CCLA submitted that s. 12(1) should exempt from disclosure only documents that would reveal who said what during the cabinet deliberative process. But the SCC interpreted the “substance of deliberations” as “covering a broad sweep of Cabinet discussions, ending only when a final decision on a policy issue is formulated and publicly announced,” she says.
“The CCLA is concerned that this approach will result in many more government records being withheld from the public than was previously the case,” says Fischer. “Decades ago, Canada was a leader in freedom of information legislation, but that time has long since passed. Unfortunately, today’s decision represents the continuation of a trend where courts pay lip service to the important transparency goals of FOI legislation, while continuing to incrementally expand the scope of exemptions.”
In the reasons, Justice Andromache Karakatsanis wrote that the legislative context showed that the exemption “was a critical part of the balance the legislature struck between public access to information and necessary spheres of government confidentiality.” Aside from the legislation, she said, cabinet confidentiality is protected “as a matter of constitutional convention.”
CBC filed a freedom of information request for 23 mandate letters that Ontario Premier Doug Ford sent his cabinet ministers following the 2018 election. The letter’s outlined the government’s objectives and priorities for the next term. Ontario said the letters were protected under the s. 12(1)’s exemption and refused access.
The IPCO disagreed and ordered the cabinet office to release the letters to the CBC. A unanimous Divisional Court denied Ontario’s judicial review application and a split Court of Appeal confirmed that ruling. Ontario then appealed to the SCC.
Karakatsanis said the IPCO had an “overly narrow” interpretation of s. 12(1) because it did not engage meaningfully with “constitutional conventions and traditions surrounding cabinet confidentiality and cabinet’s decision-making process, including the role of the Premier.” The IPCO had deemed the contents of the mandate letters “topics” and “outcomes” of the deliberative process and non-exempt. This interpretation was unreasonable, she said, because it ignored “the broader context of the cabinet’s deliberative process” in which the letters represent the premier’s policy priorities and “mark the initiation of a fluid process of policy formulation within cabinet.”
The confidentiality of cabinet deliberations is necessary for responsible government, which is a fundamental principle of Canada’s system because it allows for collective ministerial responsibility, said Karakatsanis. The collective responsibility of cabinet members requires their ability to “speak freely when deliberating without fear that what they say might be subject to public scrutiny.” She said this promotes executive accountability by permitting ministers to disagree in private but “stand together in public, and be held responsible as a whole, once a policy decision has been made and announced.” Karakatsanis added that cabinet confidentiality also promotes efficiency in the collective decision-making process.
Whether the mandate letters comprised an aspect of cabinet’s "deliberative process" was the central factor in the case. Karakatsanis said the process involves “discussion, consultation, and policy formulation between the Premier, individual ministers, and cabinet as a whole — informed by the advice of civil servants every step along the way.” As head of the cabinet, the premier has “extensive powers” in the deliberative process, and “in many regards, the role and activities of the premier are inseparable from cabinet and its deliberations.”
Professor James Turk, director of the Centre for Free Expression at Toronto Metropolitan University, says he is “quite troubled” by the decision.
“I think they’ve drawn a really long bow and dramatically increased the zone of discretion that governments have with regard to what they release.”
While the public does not have a right to know about the debates occurring within cabinet, they have a right to know the government’s priorities and whether they have acted on them, he says. He adds that the “net effect” of the ruling will be more difficulty for journalists and the public in accessing information that would have been forthcoming under a more traditional, narrower reading of the exemption.
The SCC did not determine the applicable standard of review because it found the IPCO’s interpretation and application of s. 12(1) was unjustified on a standard of correctness, as well as on the more deferential standard of reasonableness.
Justice Suzanne Côté disagreed that it was unnecessary to resolve the question of the applicable standard of review. On the overall result, she would have come to the same conclusion as the majority. But she disagreed that that finding would follow either a reasonableness or correctness review.
Côté said the IPCO’s reasons were “intelligible and transparent and a number of relevant factors weigh in favour of the Commissioner’s interpretation of s. 12(1),” and its rationale is not unreasonable because the majority would have concluded otherwise. But the “scope of cabinet privilege is a question of central importance to the legal system as a whole,” requiring a correctness review to solve. The IPCO’s interpretation was incorrect, she said.