The “Advice or Recommendations” Exemption (FIPPA s.13 / MFIPPA s.7)

Of all of the exemptions available to provincial and municipal institutions under Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) and its Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), the “Advice to Government” / “Advice or Recommendations” exemption stands out as being applicable to potentially the widest variety of correspondence and general records retained by institutions.

The language of the exemption is similar in both FIPPA and MFIPPA.  In section 13(1) of FIPPA, the exemption is set out as follows:

Advice to government

13 (1) A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution.

Exception

(2) Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record that contains,

(a)  factual material;

(b)  a statistical survey;

(c)  a report by a valuator, whether or not the valuator is an officer of the institution;

(d)  an environmental impact statement or similar record;

(e)  a report of a test carried out on a product for the purpose of government equipment testing or a consumer test report;

(f)  a report or study on the performance or efficiency of an institution, whether the report or study is of a general nature or is in respect of a particular program or policy;

(g)  a feasibility study or other technical study, including a cost estimate, relating to a government policy or project;

(h)  a report containing the results of field research undertaken before the formulation of a policy proposal;

(i)  a final plan or proposal to change a program of an institution, or for the establishment of a new program, including a budgetary estimate for the program, whether or not the plan or proposal is subject to approval, unless the plan or proposal is to be submitted to the Executive Council or its committees;

(j)  a report of an interdepartmental committee task force or similar body, or of a committee or task force within an institution, which has been established for the purpose of preparing a report on a particular topic, unless the report is to be submitted to the Executive Council or its committees;

(k)  a report of a committee, council or other body which is attached to an institution and which has been established for the purpose of undertaking inquiries and making reports or recommendations to the institution;

(l)  the reasons for a final decision, order or ruling of an officer of the institution made during or at the conclusion of the exercise of discretionary power conferred by or under an enactment or scheme administered by the institution, whether or not the enactment or scheme allows an appeal to be taken against the decision, order or ruling, whether or not the reasons,

(i)  are contained in an internal memorandum of the institution or in a letter addressed by an officer or employee of the institution to a named person, or

(ii)  were given by the officer who made the decision, order or ruling or were incorporated by reference into the decision, order or ruling.

Idem

(3) Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record where the record is more than twenty years old or where the head has publicly cited the record as the basis for making a decision or formulating a policy. 

For municipal institutions, the exception is set out in section 7 of MFIPPA and is similar to the FIPPA version, except the exemption is entitled “Advice or recommendations” (rather than “Advice to government”) and there is no equivalent to section 13(2)(e) in the MFIPPA version.  Additionally, there is no requirement in the MFIPPA version that the institution disclose a record “where the head has publicly cited the record as the basis for making a decision or formulating a policy” as found in the latter half of section 13(3) of FIPPA.

Advice or Recommendations

At its most basic, this exemption states that an institution may refuse to disclose a record whose disclosure would reveal advice or recommendations to the institution.  The exemption is worded broadly, stating it applies to advice or recommendations of public servants, but also to any other person employed in the service of an institution or a consultant retained by an institution.  In other words, the source of the advice is of little relevance, although the language of the exemption does not appear to be broad enough to cover advice and recommendations received from the public, whether such advice or recommendations are received via public consultations, or as unsolicited advice.

Purpose of the exemption

The Supreme Court of Canada gave guidance on the purpose of this exemption in its unanimous decision delivered by Justice Rothstein in John Doe v. Ontario (Finance), 2014 SCC 36:

[43] The purpose of exempting advice or recommendations within government institutions […] is to preserve an effective and neutral public service so as to permit public servants to provide full, free and frank advice. The [Williams Commission] report discussed the concern that failing to exempt such material risks having advice or recommendations that are less candid and complete, and the public service no longer being perceived as neutral. Although the report suggested that some of these concerns were exaggerated, it acknowledged that “it is difficult to weigh accurately the force of these arguments and predict with confidence the precise results of greater openness with respect to the deliberative decision-making processes of government” (pp. 289-90). […]

[45] Political neutrality, both actual and perceived, is an essential feature of the civil service in Canada […].  The advice and recommendations provided by a public servant who knows that his work might one day be subject to public scrutiny is less likely to be full, free and frank, and is more likely to suffer from self-censorship. Similarly, a decision maker might hesitate to even request advice or recommendations in writing concerning a controversial matter if he knows the resulting information might be disclosed. Requiring that such advice or recommendations be disclosed risks introducing actual or perceived partisan considerations into public servants’ participation in the decision-making process.

Here, the Court acknowledged that if all advice to government was subject to being disclosed to the public under FIPPA or MFIPPA, people who provided advice to the government may be less open and forthcoming, thus degrading the quality of the advice and recommendations received by the government and its institutions.  Further, there is a perceived risk that the publication of internal advice may lead to the politicization of the public service, who may no longer be perceived as neutral.

That being said, the exemption is a discretionary one, which means that even if an institution determines that it applies to certain requested records, the institution may at its own discretion decide to release the requested records, subject to other exemptions or exclusions under FIPPA/MFIPPA.

What do “Advice”and “Recommendations” mean?

In the John Doe case above, the Supreme Court of Canada explained that the terms “advice” and “recommendations” have distinct meanings, and both kinds of content are covered by the exemption:

[23] […] material that relates to a suggested course of action that will ultimately be accepted or rejected by the person being advised falls into the category of “recommendations” in s. 13(1) [of FIPPA]. 

[24] However, […] the legislative intention must be that the term “advice” has a broader meaning than the term “recommendations”.  Otherwise, it would be redundant. 

The Supreme Court determined that the meaning of the word “advice” in this exemption must be intended to include records which contained “policy options” (see para 35. of the judgment), not merely records which made a specific recommendation regarding how the institution should proceed or what conclusion the institution should reach on an issue.  The Supreme Court helpfully elaborated on what kinds of documents could be considered policy options for the purpose of the exemption:

[27] Records containing policy options can take many forms. They might include the full range of policy options for a given decision, comprising all conceivable alternatives, or may only list a subset of alternatives that in the public servant’s opinion are most worthy of consideration. They can also include the advantages and disadvantages of each option, as do the Records here. But the list can also be less fulsome and still constitute policy options. For example, a public servant may prepare a list of all alternatives and await further instructions from the decision maker for which options should be considered in depth. Or, if the advantages and disadvantages of the policy options are either perceived as being obvious or have already been canvassed orally or in a prior draft, the policy options might appear without any additional explanation. As long as a list sets out alternative courses of action relating to a decision to be made, it will constitute policy options.

Based on the description of “policy options” provided by the Court directly above, it would seem the exemption provided in FIPPA s. 13 (and MFIPPA s.7) can reasonably be applied to an incredibly wide range of correspondence containing suggestions or listing various options for a decision maker to consider.

In the same decision, the Court also clarified that the exemption also applies to draft versions of advice, even if the advice was never actually shared with its intended recipient:

[51] Protection from disclosure would indeed be illusory if only a communicated document was protected and not prior drafts. It would also be illusory if drafts were only protected where there is evidence that they led to a final, communicated version. 

Exceptions to the Advice or Recommendations Exemption

Perhaps because the basic language of the exemption itself can be interpreted so broadly, the exemption contains an unusually high number of explicit “exceptions to the exemption”, which are set out in s.13(2) of FIPPA and s.7(2) of MFIPPA.  Most of these are self-explanatory, however, a few are worthy of emphasis or elaboration.

Perhaps the most significant exception to the exemption is for “factual material” set out in FIPPA s.13(2)(a) / MFIPPA s.7(2)(a).  Although factual material may be extremely helpful for a decision maker considering various policy options, its inclusion in a record is not covered by the “Advice or Recommendations” exemption and therefore such factual information is not subject to withholding under this exemption.  (Similarly, statistical surveys are not considered to be “advice or recommendations” covered by the exemption.)

In a few other cases, the exclusions carve out certain kinds of records that would seem to clearly be advice or recommendations that would be covered by the exemption but for their appearance in the list of specific exclusions.  Reports by a valuators, environmental impact statements, and feasibility studies all fall into this category.   These examples serve as reminders to always check the specific exclusions listed under the exemption before proceeding to apply the Advice or Recommendations exemption as a basis for withholding a record.  In Order MO-3166-I, Adjudicator Donald Hale agreed with the application of the exemption as a basis for withholding most of a wide-ranging report regarding Bruce Telecom, but he found that it was appropriate to disclose a specific portion of the report containing a “Valuation Framework” as it fell within the ambit of MFIPPA 7(2)(c).

The last exception of note is found only in the FIPPA version of the exemption, namely, the latter half of 13(3), which states that a head shall not use this exemption as a basis to refuse to disclose a record “where the head has publicly cited the record as the basis for making a decision or formulating a policy.”  In other words, if a provincial institution is going to justify its decision as being in accordance with the advice or recommendations provided in a certain document, the institution cannot rely on this exemption to avoid scrutiny by refusing to disclose such document to the public.  

Conclusion

I hope this overview of the Advice or Recommendations exemption helps you to keep it in mind when reviewing documents and making disclosure determinations.  From a brief review of the Information and Privacy Commissioner of Ontario’s annual statistics, I get the impression that institutions may not be making full use of this broadly-applicable exemption.  This apparent restraint may reflect a laudable preference for transparency, but it may also indicate this exemption is sometimes being overlooked, with the result that records are being disclosed when it would be in the better interests of the institution, its advisors, and the public to refuse to disclose such records in accordance with the intended purposes of the exemption.

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Links to Resources:

Freedom of Information and Protection of Privacy Act (FIPPA) https://www.ontario.ca/laws/statute/90f31

Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) https://www.ontario.ca/laws/statute/90m56

John Doe v. Ontario (Finance), 2014 SCC 36 https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13633/index.do

Municipality of Kincardine (Order MO-3166-I) https://decisions.ipc.on.ca/ipc-cipvp/orders/en/item/134638/index.do?q=MO-3166-I

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The Public Interest Override

Published by Justin Petrillo

I am creating FOI Assist™ software to help Ontario’s provincial and municipal government institutions of all sizes track and respond to Freedom of Information (FOI) requests. For most of my career I have been a lawyer, advising clients on commercial, intellectual property and FOI/privacy issues. From 2013 to 2015, I managed the FOI program for the Toronto 2015 Pan/Parapan Am Games Organizing Committee while serving as Legal Counsel to the Games. Prior to becoming a lawyer, I obtained a computer science degree and worked as a software developer at several well-known technology companies.

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