• The exemption is applicable to records associated with the normal Cabinet decision-making process. In this case, a funding request was sent from an outside Council directly to a Cabinet Committee. The Commission ruled that the record was not the type of record which was intended to qualify for exemption under this provision. (Order #P-80)

• It is possible for records that have never been placed before an Executive Council or its Committees to qualify for exemption under the introductory wording of s.12(1). This may occur where a ministry establishes that disclosure of the record would reveal the substance of deliberations of an Executive Council or its committees or where release would permit the drawing of accurate inferences regarding the substance of the deliberations. For example, reports that had been reviewed by Ministers and were incorporated into submissions made at Cabinet Committees and to Cabinet would permit the drawing of accurate inferences regarding the substance of deliberations of the Executive Council or its Committees. The reports were therefore exempt. (Orders #P-72, P-73, P-147, P-167, P-226, P-293, P-331, P-361, P-376, P-424, P-483, P-529, P-604, P-641, P-654, P-771, P-901, P-1137)

• Where the relationship between the record and a possible future Cabinet submission is too remote, the exemption does not apply. In this case, a policy paper that was tentatively scheduled for a Deputy Minister's Committee was not exempt under this section because it was only to go to Cabinet if it was adopted by the Committee and its adoption was uncertain. (Order #P-424)

• The Terms of Reference for a program review which included a summary of a Cabinet decision regarding the matters under review were exempt. (Order #P-1274)

• The term "substance" means the essential aspect or most important part of the deliberations. (Orders #P-72, P-167)

• A document entitled "Contentious Issue," designed to provide a script for a response in the event that a particular issue was raised by the media, is not exempt under this section. Even though this record was prepared to brief a Minister of the Crown in relation to a matter that was before the Executive Council, it would not reveal the substance of the deliberations of the Executive Council or fall within any of the subsections of the exemptions. (Order #P-508). However, where a briefing note was used to brief a minister on matters which were before Cabinet and which revealed the substance of a cabinet submission, the briefing note was exempt. (Order #P-1274)

• A record that primarily relates to procedural matters pertaining to the institution's attempts to obtain final Cabinet approval, does not reveal the substance of Cabinet deliberations. (Order #P-627)

• Minutes of meetings held by an advisory body formed to propose amendments to a statute were not exempt under this provision. The Commission found that the contents of the minutes would not permit the requester to draw accurate inferences about the nature of Cabinet deliberations regarding the proposed amendments. The minutes were prepared some 3 to 5 years before Cabinet deliberated on the amendments and the connection between them and the deliberations was too remote. (Order #P-812)

• Draft and final versions of an "Information Sheet" which provide explanations about a draft Regulation are exempt. (Order #P-1205)

• The records at issue concerned matters between the Township and the appellant's company, partially arising from a decision made by the Ontario Municipal Board. The Commission determined that the fact the Township had decided to disclose much of this information to the public did not render its entire relationship with its solicitors a public one. Records exchanged between the solicitor and client which were intended to be, and treated as confidential, as well as the solicitor's "working papers" were found to be exempt under this section. (MO-1316) The Commission found that communications between an engineering firm and the Township's solicitor were made on behalf of the Township for the purpose of seeking or giving legal advice relating to development matters. The engineering firm was an essential part of the Township's team in assessing the viability of specific development issues. In coming to this decision the Commission considered Canadian Pacific v. Canada (Competition Act, Director of Investigations), [1995] O.J. No. 67 (June 1995) (Ontario Court General Division): "If a third party is truly an agent of the client seeking professional advice from the lawyer, not merely in the sense of being an agent of the client, but also being the agent who actually seeks the advice then there has been no waiver of disclosure to that third party." (MO-1316) Solicitor-Client Communications The Commission found that even though a record may have been a public document at one time, or a communication from a third party including the appellant, if the record has been used by legal counsel in preparing or giving legal advice or exchanged between client and counsel as part of the "continuum of communications" aimed at keeping both parties informed, the record will fall within the communications privilege and could be seen to be part of the solicitor's working papers. (MO-1316)

s.12(1)

• The term "deliberation" means the process of deliberating regarding a contemplated act. (Orders #P-72, P-167)

• The institution must provide objective evidence to establish that the records went before Cabinet or its Committees or that they were incorporated into a Cabinet submission or used as a basis for developing a Cabinet submission. (Order #P-167)

• If the record was created as a direct result of a Cabinet Committee's request for the specific information contained in the report, it would fall within this subsection. (Orders #P-72, P-206)

• In this case, the exemption was held to apply to parts of a briefing note that referred to a proposal discussed at a Cabinet meeting and to matters contained in a Cabinet submission. Disclosure would permit the drawing of inferences about the deliberations of Cabinet. However, where a memorandum does not by inference or in itself reveal the "substance" of deliberations of the Executive Council, it is not exempt. (Order #P-483, P-944)

• A briefing note that commented on a Cabinet submission was exempt under this section. The briefing note contained detailed information regarding the subject of the Cabinet submission, much of which was extracted from the submission. Disclosure in this case would be tantamount to disclosing the substance of the deliberations of a Cabinet Committee. (Order #P-503)

• In this case, a record containing a Deputy Minister's comment on a first draft of a Cabinet submission was not exempt under this section or subsections (a) through (e). The letter was written from one Deputy Minister to another and indicated that the Deputy had no concerns. The institution had not provided any representations as to why the exemption applied and it was not apparent from a review of the record that it was exempt under this section. (Order #P-503)

• The mere reference to a Cabinet submission without any description of its contents does not bring a document within the ambit of this exemption. (Order #P-529)

• It is unfair to preclude an institution from relying on a mandatory exemption for records that have been released without its knowledge.(Order #P-901)

• A document entitled Cabinet Submission Target Dates did not fall under this provision as disclosure would not reveal the substance of a Cabinet submission. (Order #P-1406r)

• Portions of records containing submissions from labour organizations in response to the circulation of a draft regulation were exempt under the opening words of this provision or on the basis of section 12(1)(f) - draft legislation or regulations. In making the submissions, the authors of the records could reveal the content of the draft regulation, either expressly or by implication and thus would permit the drawing of accurate inferences with respect to actual deliberations. (Order PO-1663)

• The Premier has a unique leadership and control role in setting the priorities and supervising the activities of Cabinet and to the extent that records reflect consultations bearing on policy making and priority setting functions within the sphere of the Premiere's authority as first minister, those records may be seen to reflect the substance of deliberations of the whole Cabinet.

  The Premier's role in Cabinet deliberations cannot be divorced from the democratic political consensus building process and senior members of his staff act as his eyes and ears and stand virtually in the same shoes as the premier with respect to his pre-eminent deliberative role within Cabinet. Therefore, date book entries respecting a senior member of the Premier's Office were exempt under the section where their dates and/or proximity in time to Cabinet and other committee meetings and other events could be seen as reflecting the relative priority of the subject matter or policy initiatives to which they relate. (Order# PO-1725)

s.12(1)(a)

• This exemption does not extend to the individual ministerial level. The record must have been reflective of the deliberations or decisions of the Executive Council or its Committees. (Order #P-131)

• Once legislation is proclaimed it is made public and cannot be subject to this exemption. (Order #P-278)

• In this case the agenda of a sub-committee of a Cabinet Committee was not exempt under this provision. In order for the body to be a "Committee" for the purpose of this section, it must be composed of Ministers where some tradition of collective ministerial responsibility and Cabinet prerogative may be invoked to justify the application of the exemption. (Order #P-604)

• This exemption applies to an extract of minutes of a Treasury Board meeting. (Order #P-1205)

• In this appeal dealing with an annotated appointment records, the adjudicator determined that while none of the entries is an "agenda", by virtue of the capacity of some of these entries to reflect the Premier's deliberations in establishing Cabinet's priorities they fall within the introductory wording of section 12(1) by revealing the substance of that exercise. Other entries revealing only that meetings with various ministries were scheduled to take place as part of the Cabinet's priority setting process did not qualify for exemption under this section. In the adjudicator's view, an entry appearing in another record which describes the subject matter of an item considered or to be considered by Cabinet is not an agenda as this term is used at section 12(1)(a). Nor would such an entry, standing alone, normally be found to reveal the substance of Cabinet deliberations, unless either the context or other additional information would permit the reader to draw accurate inferences as to the actual deliberations occurring at a specific Cabinet meeting. (Order# PO-1725)

s.12(1)(b)

• To qualify for this exemption, the records must contain specific policy options or recommendations. To come within s.12(1)(b), there must be evidence that the record went before Cabinet or its Committees or that it was incorporated into a Cabinet submission or used as a basis for developing a Cabinet submission. References to proposals put before a court-appointed receiver in the course of bankruptcy proceedings do not qualify where there is no discussion as to how this relates to government policy or any reference to recommended courses of action. Records, which are prepared to update members of the Executive Council on the status of matters, are not exempt under this provision. (Order #P-323, #P-47, P-206, P-323, P-604 P-726,, P-772)

• Where a record is exempt under this provision, it is irrelevant that the contents of the record have been summarized in a publication or that the author of the record has been provided with access to the record. (Order #P-334)

• Section 12(1)(b) does not include records containing numerical data in columns, matrices and calculations. These records did not contain policy options or recommendations. While it could be argued that the titles of the impact studies and their column headings alone reflect some of the options available for consideration, this information is not by itself sufficient to satisfy this provision. (Order #P-60)

• Section 12(1)(b) does not include findings or recommendations in a report referred to briefly in an executive summary, which led to the creation of another record prepared for submission to Cabinet. The record must contain policy options or recommendations and the record must have been submitted or prepared for submission to the Executive Council or its Committees. (Orders #P-73, P-323, P-424, P-503, P-654)

• A covering memo attached to a Cabinet submission is a transmittal document by which the submission is provided to a number of ministries. The memo in this case did not contain policy options or recommendations. The document was not submitted or prepared for submission to an Executive Council or one of its Committees. As a result, this exemption did not apply. (Order #P-503)

• Cabinet documents containing previously approved policies may still contain "policy options" and/or "recommendations" as noted in this section. (Order #P-987)

s.12(1)(c)

• Section 12(1)(c) does not apply once the government has made the records in question public by disclosure in the Budget Speech and by a ministerial announcement that a decision has been made and implemented. (Orders #P-60, P-206, P-323)

• In order for the exemption to apply, a briefing note that contains background analyses must also have been submitted or prepared for submission to the Executive Council or its Committees for its consideration. (Orders #P-188, P-664, P-726, P-901)

s.12(c) and (e)

• These provisions are prospective and not intended to apply to decisions that have been made and implemented. The fact that the issues may be revisited is insufficient to engage these exemptions. (Orders #P-60, P-73, P-323, P-604)

• To qualify for exemption, the actual record at issue must have been submitted or prepared for submission to Cabinet or a Cabinet committee. It is not sufficient that the issues addressed in the record were submitted to Cabinet for its consideration. (Order #P-920)

s.12(1)(d)

• This provision does not apply to records in respect of government policy that had already been formulated and implemented. (Order #P-304)

• Where the records were not used but were intended to be used for consultations among Ministers of the Crown, this provision is not satisfied. This provision requires that the record was actually used for or reflects actual consultation among Ministers of the Crown on matters relating to the making of government decisions, or the formulation of government policy. (Orders #P-206, P-304, P-604)

• This provision may be used to exempt letters from a Minister to the Attorney General regarding the making of government decisions. (Orders #P-56, P-134)

• In this case, a consultant's report that showed the results of a number of public focus group sessions dealing with the prospect of legalized gambling in Ontario was exempt under this section. The report was commissioned by the ministry, considered by the Minister, used as the basis for a cabinet submission and reviewed by a Cabinet Committee. (Order #P-514)

• To qualify under this exemption a record must 1) reflect consultation among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy, or 2) the record was used to make government decisions or the formulation of government policy.) (Order #P-883)

• To be exempt, there must be evidence that the record was used for consultations among ministers. The exemption does not apply if the record was used for consultations among civil servants employed in ministries. (Order #P-920)

• A Premier's briefing was not exempt under this section because it contained reports on events that had already taken place and matters already announced by the government of the day. Furthermore, there was no indication that the record "was used for consultation" or "reflects consultation". (Order #P0-1742-i)

s.12(1)(e)

• In order for this exemption to succeed, there must be evidence that all aspects of s.12(1)(e) have been satisfied. (Order #P-167)

• An issues sheet prepared for a minister was exempt under this provision. (Order #P-56)

• This provision does not include records already presented to and dealt with by the Executive Council or its Committees. (Orders #P-22, P-60, P-167, P-323, P-1182)

• A covering memo to a Cabinet submission was not exempt under this section. The memo was not prepared to brief a Minister; it was circulated among Deputy Ministers only and it did not comment substantively on the Cabinet submission. (Order #P-503)

• To qualify under this exemption an institution must establish that the record itself has been prepared to brief a minister of the Crown in relation to matters that are either: 1) before or proposed to be brought before the Executive Council or its committees; or 2) the subject of consultations among ministers relating to government decisions or the formulation of government policy. A record that consists only of a series of one-line references to the titles of issues sheets, which themselves were prepared to brief the Minister, does not fall within the exemption in s.12(1)(e). (Orders #P-131, P-167, P-206, P-503 P-883, P-946)

• This exemption applied where, even though the formulation of government policy to transfer the Psychiatric Patients Advocacy Office to the Ministry of Citizenship had been completed, particular issues regarding the actual transfer were still outstanding. (Order #P-891)

• Where Ontario Hydro had provided an unsolicited document of a Provincial Nuclear Emergency Plan to the Solicitor General, the exemption did not apply. Briefing materials should be restricted to documents prepared or assembled by ministry staff for consideration by their minister or a fellow Cabinet member. Materials provided to a minister by a third party fall outside the scope of this exemption. (Order #P-901)

• This provision is prospective, or at least meant to cover issues that are presently the subject of interministerial consultations or currently before the Executive Council or its committees. The fact that these issues may be revisited is insufficient to substantiate a claim for exemption under this provision. (See Order 40) (Order #P-946, P-40)

• Draft and final versions of an "Information Sheet" which provide explanations about a draft Regulation are not exempt under this provision, but they are exempt under the introductory words of s.12. (Order #P-1205)

s.12(1)(e)

• Briefing notes relating to a funding issue likely to be considered by a committee of the Executive Council were not exempt where evidence was not provided that the issue was clearly scheduled. (Order #P-1312)

• Records concerning matters that had been previously considered and dealt with by Cabinet were not exempt under this section. Any subsequent consideration of an issue, should it occur in the future, would require new and updated information and policy options which reflect current government priorities. (Order #PO-1742-i)

s.12(2)(b)

• Where draft legislation is circulated to certain groups or individuals during a consultation process, the institution, in response to an access request for the draft legislation, should not only consider seeking the consent of the Executive Council when claiming this exemption, it should ask the Executive Council for its consent. Among the relevant considerations relevant to the release of a draft regulation that was circulated to various interest groups for comment are: 1. the fact that the draft regulation has already been widely distributed; 2. the fact that the draft regulation is stamped confidential 'until filed with the Registrar of Regulations;' and 3. that the regulation had already been enacted when the request was responded to. (Orders #P-278, P-771)

• Section 12(2)(b) does not impose a requirement on the head to seek consent of Cabinet in response to an access request in all cases. The head must direct his or her mind to whether consent should be sought. Where a decision is made to seek such consent, the head should also indicate whether he or she believes that such consent should be forthcoming based on the facts of the case. (Orders #P-22, P-24, P-40, P-72, P-154, P-160, P-278, P-771, P-901)

• The institution must establish by evidence that the head had considered the possibility of seeking the consent of the Executive Council for the release of the records. (Order #P-72)

• Where a body such as the Cabinet of a previous government no longer exists, it is not practical to seek its consent to disclosure.(Order #P-1146)