• "Advice" or "recommendations" must contain more than mere information. Advice pertains to the submission of a suggested course of action, which will ultimately be accepted or rejected during the deliberative process. The deliberative process does not extend to communications between public servants which relate exclusively to matters which have no relation to the actual business of the institution. (Orders #P-118, P-135, P-142, P-160, P-161, P-163, P-164, P-167, P-204, P-206, P-210, P-211, P-233, P-248, P-285, P-288, P-298, P-304, P-320, P-348, P-363, M-40, M-61, M-69, P-398, P-402, P-416, M-102, P-434, P-440, P-441, P-442, M-120, P-449, P-452, P-454, P-463, P-468, P-484, P-487, P-480, P-477, P-492, P-493, P-506, P-508, P-506, P-529, M-194, P-541, P-547, P-551, P-583, P-603, P-576, P-585, P-593, P-597, P-598, M-210, M-212, P-627, P-628, M-265, P-635, P-641, M-280, P-643, M-282, M-287, M-630, P-664, P-666, P-658, M-295, M-296, M-315, P-677, P-686, P-701, M-328, P-702, P-710, M-342, P-726, P-752, P-763, P-771, M-394, M-396, P-783, P-775, P-803, P-811, P-790, P-807, P-809, P-811, P-816, P-820, P-827, P-946, P-952, P-989, P-922, M-521, P-902, P-1124, P-1194, P-1299, M-882)

• This exemption is not intended to exempt all communications between public servants even if they can be seen broadly as advice or recommendations. The exemption protects the free flow of advice and recommendations within the deliberative process of government decision making and policy making. (Orders #P-94, P-118, P-135, P-141, P-142, P-147, P-160, P-163, P-165, P-167, P-168, P-201, P-204, P-206, P-210, P-211, P-248, P-270, P-278, P-348, M-40, M-83, P-417, M-102, P-434, M-495, P-922, P-1054, P-1299)

• The head must consider ss.(2) before exercising his or her discretion in respect of this exemption. (Orders #P-56, P-92).

• This exemption applies to records that if released would inhibit the free flow of advice and recommendations within the deliberative process of government decision making and policy making. As result, handwritten notes made by the director of planning after conferring with a superintendent regarding the subject of an Ontario Municipal Board hearing were not exempt under this provision. This was also true of two zoning analyses and a chronological record of communications between the Town and other persons involved in the hearing. (Order #M-83)

• A record disclosing "concerns" of a civil servant does not constitute "advice or recommendations." The reference to a "concern" does not suggest a course of action, which can be accepted or rejected during the deliberative process. (Order #P-160)

• Discussions in records that state that it "may be of interest to ..." is not advice or recommendations, but "mere reportage." There is no specific course of action offered for deliberation leading to a decision. (Order #P-201)

• Comments about the merits of a proposed project and the alternatives available should the government decide to support the proposal constitute opinion or factual material and do not suggest a recommended course of action. The record is therefore not exempt under this section. (Order #P-493)

• This exemption may not include a ministerial transmittal slip with references to the fact that advice was given where the advice is not appended, or where the particular record containing the advice is not specifically referred to. A telephone message slip is not included where only the topic of the conversation is noted. "Advice" must include communication from one person to another. Therefore, a memo to yourself or a "work plan" that is not communicated to another person is not advice. However, records that identify policy options or models, though not addressed to a particular individual, are exempt where they are clearly prepared by public servants to provide advice to senior- level decision makers. (Orders #P-24, P-48, P-58, P-92, P-94, P-128)

• For a record to fall within the scope of this exemption, it must reflect a communication. This exemption may apply where it is evident that the records were prepared by public servants to provide advice to decision makers and policy makers within the institution, even though they are not addressed to a particular individual. As a result, the records in this case did contain communications that were covered by this exemption. (Orders #P-522, P-128, P-94, P-58, P-551)

• A record may be exempt if it would reveal advice or recommendations by inference even though it is not itself advisory in nature. (Orders #P-233, M-280)

• This exemption is not time-limited. A record may continue to be exempt under this exemption, even though an institution may have completed its decision-making on a matter. However, the fact that a decision on the subject-matter of the advice has been made is one of the factors that the head should consider in exercising his or her discretion to disclose the record. (Order #P-920)

• An assessment of a recommendation proposed in a strategy paper constitutes advice and recommendations in that it essentially sets out the advantages of such an approach and provides the rationale for the recommendation. (Order #P-946, P-529, P-1182)

• In order to qualify for exemption, the record must have been prepared by a public servant or person employed in the services of an institution, or a consultant retained by the institution. The nature of the relationship between the author and the institution is a crucial factor in determining whether this exemption applies. (Order #P-1117)

• An investigation plan prepared by an Ontario Human Rights Commission investigator was not exempt because there was no evidence it had been communicated to anyone. However, a memo setting out draft questions for an investigation interview which was discussed among investigation staff was exempt. (Order #P-1241)

• The Commission found that a consultant's report containing a chart of recommended time-lines for the divestiture of some of Ontario Power Generation's nuclear power assets constituted advice under this section. Identifying appropriate time-lines for divesting assets was within the scope of the consultant's responsibilities and Hydro was free to accept or reject the consultant's recommendations. (Order #PO-1746)

• "...section 13(1) was designed to protect the free flow of advice in the deliberative process. In this regard, there must be a relationship of advisor and recipient/decision-maker (i.e., the person who can accept or reject the advice) between the parties in question." The section was found not to apply to a record which documents negotiations between the Ministry of the Attorney General and the Toronto Police because "the Police and the Crown are independent agencies attempting to reach a mutual understanding of how they will interact with one another" and because "'negotiating' is entirely at odds with an advisor/decision maker relationship." (Order PO-1941)

Severances

• Where factual information is so interwoven with the advice and recommendations that it cannot reasonably be severed, then the exemption may apply to the document in its entirety. (Orders #P-24, P-48, P-92, P-160, P-278, P-356, M-69, P-920)

• Where only two sentences of a record contain advice, they may be severed from the factual material contained in the rest of the record. In this case, the factual material was not so interwoven with the advice that it required the whole record to be exempt. (Order #P-416)

Drafts

• Where a public servant provides advice as to the position the institution should take in a draft decision, that advice may be exempt under this provision. (Order #P-320)

• A draft document may be exempt if the institution can establish that the draft contains a suggested course of action which will ultimately be accepted or rejected by the recipient during the deliberative process. A draft form may be exempt in its entirety under this section where it can be shown that its contents would be accepted or rejected during the deliberative process (P-324). (Orders #P-92, P-188, P-278, P-324, P-827)

• A draft affidavit containing the outline of certain facts prepared by one employee for another's consideration is not exempt under this section. (Order #P-398)

• Drafts are not by their very nature recommendations. Recommendations are suggested courses of action that will ultimately be accepted or rejected during the deliberative process. In these cases, the draft letter of engagement and the draft memorandum were not exempt under this section. (Orders #P-434, P-480, P-493)

• In this case, the draft interim report, prepared to advise a Deputy Minister of the initial audit findings regarding a local organization, was not exempt under this provision. While the Commission was satisfied that the draft report was circulated for comments and discussion and that portions of it would ultimately be incorporated into a final report, it ruled that the exemption did not apply because no advice or recommendation was provided which sets forth an approach that may be adopted by the recipient of the report. (Order #P-547)

• Draft letters with handwritten notes in the margins were not exempt under this provision. The Commission ruled that the submissions of the institution were not sufficient to show that the record contained a suggested course of action, which would be accepted or rejected in the deliberative process. (Order #P-551) However, see also reference to draft letters for Minister's signature re: Order #P-92 below.

• In this case, a draft letter that did not contain advice or recommendations was not exempt under this provision. (Order #P-666)

• A draft letter prepared in order to get advice on the course of action it outlined was found to contain the recommendations of a public servant. (Order #P-1102)

• The Ministry submitted that a draft report prepared by public servants falls within s.13(1). The Commission noted that previous orders cited by the Ministry in support of its position do not stand for the proposition that a draft document is simply "by its nature", advice or recommendations. In order to qualify for exemption the record must recommend a suggested course of action will ultimately be accepted or rejected during the deliberative process of government policy-making and decision making. The Commission held that the report does not contain "advice or recommendations, nor does it reveal [any] by inference". (Order #PO-1690)

• A record relating to administrative matters that was directional, i.e. on how to proceed, and not advisory in nature was not exempt under this section. (Order #MO-1285)

Issues Sheets \ Briefing Notes

• This exemption includes the "response" sections of the Minister's issue notes. These contain advice from a public servant to the Minister as to how to respond. As well, draft letters for the Minister's signature are "advice." (Orders #P-92, P-188, P-278, P-508, P-1115)

• The "topic" and "background" sections of the briefing response (Minister's issue notes) do not contain advice and recommendations. (Order #P-188)

• In this case, the "Suggested Responses" prepared for the Minister did not fall under this exemption because the suggested responses simply described decisions that the ministry had already made. (Order #P-529)

• The "Suggested Response" section of an issue note prepared for a senior government official may be exempt under this section where it contains a suggested course of action, which may be accepted or rejected in the course of deliberations. Similarly, the "Response" sections of an issues sheet may be exempt under this section. (Order # P-508, P-514, P-771, P-946, P-978, P-1137)

• Information does not become advice or recommendations merely because the record is entitled "Confidential Advice to the Minister." The information itself must satisfy the objective criteria. (Order #P-442, P-1225)

• A memorandum from an assistant deputy minister to a minister regarding the wording of a regulation was held to not be exempt under this provision. The Commission found that the memorandum was provided to the minister for her signature and that the wording of the regulation had already been approved by Cabinet. As a result, the record did not disclose a suggested course of action; rather, it was a formal transmittal memorandum that was purely factual in nature. (Order #P-803)

Options

• A record that identifies an option is not exempt under this section where it does not contain any wording which would indicate whether the option is recommended or not. (Order #P-398)

• Options that are listed for consideration are not exempt in and of themselves unless they represent a recommended option. (Order #P-658, P-978)

• The information under each option, ie. the possible advantages and disadvantages of each option (excluding the headings) and the option favoured by the ministry staff, constituted the advice and recommendations, respectively. This order reiterates previous order P-529 (Order #P-922)

The Following Are Exempt Under the Advice and Recommendations Exemption:

• Recommendations regarding a suggested course of action in relation to civil litigation were exempt under this section in this case. (Order #P-484)

• The advice and recommendations of a drug advisory body, created to assist a Minister, are included in this section. "Advice and recommendations" includes records of discussions, comments and recommendations by the advisory body. (Orders #P-68, P-128)

• An account of advice, which the writer of the memorandum had previously received from investigating officers, is exempt under this section. (Order #P-170)

• In this case, this exemption was held to apply to records created by a consultant concerning an internal workplace investigation into an alleged assault. The consultant's report contained recommendations as to steps to take regarding the incident. (Order #M-120)

• Comments offered by a consultant researcher regarding another researcher's work that identify areas of potential research are advisory. The comments of the researcher regarding other researchers' suitability are also advice. This is also true of marginal notes made by the consultant. (Orders #P-454, P-463)

• Advice from a lawyer who is employed or retained by an institution may be exempt under this section (e.g., legal analysis, assessment of facts). (Order #P-170)

• Correspondence and a draft investigation report prepared by an institution's human rights investigator which contained detailed recommendations as to a specific course of action to be taken by the institution were exempt. (Order #M-523)

• The exemption applied to proposed action plans for community education and development developed by a Ministry in response to a particular issue and to documents containing proposed responses to certain questions. These records contained suggested courses of action which could be accepted or rejected in the deliberative process. (Order #P-978)

• Exemption: An alert about a potential security problem, draft decisions, investigation plans and discussions relating to processing a complaint all qualified for this exemption as they described a suggested course of action with respect to the OHRC's investigatory and decision making processes as set forth in the Human Rights Code.(Order #P-1204)

• A letter in which the Crown Attorney seeks authorization to proceed with an activity falls under this provision because it provides an insight into his plan of action.(Order #P-1582)

The Following Are Not Exempt Under the Advice and Recommendations Exemption:

(a) General

• This exemption does not include a record that merely identifies a policy. (Order #P-56)

• An employee's review of a tribunal's decision to determine whether it qualifies in law for appeal is not advice. This is factual information as to why an appeal should be considered. (Order #P-201)

• The disclosure of the name of the public servant would not amount to disclosure of "advice or recommendations"; s.13(1) [FIPPA] \ s.7 [MFIPPA] does not in effect create anonymous public servants. (Order #P-172)

• A record of a public servant who seeks advice is not exempt. As well, a record that refers to two options without outlining the options is not exempt. (Order #P-233)

• It is not possible to protect public information from disclosure under this exemption. For example, a provincial auditor's report would be disclosed. (Order #P-48)

• The identity of a company most likely to be chosen to operate certain transportation corridors is not exempt under this provision. As well, the ranking of various proposals submitted by particular bus service operators is not exempt as advice or recommendations. (Order #P-529)

• Minutes of meetings containing statements by individual members approving of previously suggested plans, or speculating as to possible courses of action which might be recommended by the committee were not 'advice or recommendations' under this provision. (Orders #P-628, M-315)

• A review report that contained a description of the purpose of the review, how the investigation was conducted, various issues identified during the course of the investigation, summaries of information received from the individuals who were interviewed, supporting documentation, etc. was not a suggested course of action in its entirety. Each part of the report had to be reviewed to determine whether it was exempt under this provision. Options that are listed for consideration are not exempt in and of themselves unless they represent a recommended option. (Order #P-658)

• Comments, questions, remarks and exchanges of ideas were held to be a collective effort by individuals to achieve a common goal and not "advice" or "recommendations." The information was not organized in such a manner as to constitute "advice" or "recommendations" and there was no action plan or formalized manner of proceeding. (Order #M-394)

• The recommendations of the Advisory Review Board, the Lieutenant Governor's Board of Review and the Ontario Criminal Code Review Board may be characterized as decisions rather than as advice or recommendations within the meaning of this provision. The Commission applied the Ontario Court of Appeal's decision in Re Able and Advisory Review Board (1980), 31 O.R. (2d) 520, which held that the recommendations made to the Lieutenant Governor in these instances were tantamount to decisions. (Orders #P-775, P-820)

• A record that contains recommendations as to technical specifications necessary to build a scoreboard is not subject to this exemption. The disclosure of such a record would not reasonably be expected to inhibit the free flow of information to decision makers. (Order #P-204)

• Records containing background information used in the preparation of a response by a Minister to a complaint from a member of the public do not constitute "advice or recommendations." The correspondence contained factual information about questions raised by the individual in his complaint to the Minister and do not contain a suggested course of action. (Order P-585)

• Factual material, discussions of methodology, analyses and preliminary findings, and charts and statistics do not constitute advice or recommendations under this provision. (Order #P-726)

• An internal transfer memo indicating the reasons for referring an Ontario Human Rights Commission complaint matter to a task force team was not subject to this exemption. Though it reflected the recommendations of staff that were accepted, it was placed in the file when the decision had already been made and thus the memo was purely factual in nature. However, a Case Disposition sheet containing the advice of the investigating officer with respect to whether or not the evidence warrants the appointment of a board of inquiry was exempt under this provision. (Order #P-816)

• A procedural manual to be used by wildlife custodians during the course of their treatment of wild animals within a statutory framework was not exempt under this provision. As well, a policy paper which contained policy options was not exempt where the options did not, in addition, contain a recommended course of action. (Order #P-811)

• The "outcome" and "implications" sections of a record that outlined the initiatives and policies that an institution put in place in relation to a particular situation did not reveal advice or recommendations. Rather, the sections focused on steps that may be taken by the institution to ensure that the initiatives and policies were complied with. (Order #P-790)

• The exemption did not apply to advice provided by an employee of the Ontario Human Rights Commission to an outside body such as a party to a human rights complaint. (Order #P-848)

• Even though portions of a report on the operations of a crisis centre may contain gossip, innuendo, rumor and factual inaccuracies, such information even though inaccurate or unreliable, was not "advice and recommendations" under this exemption. (Order #P-872)

• A section of a memo titled "Questions and Answers" was not exempt because it did not contain information relating to a course of action that could be accepted or rejected as part of policy development. (Order #P-920)

• A memo from the Acting Deputy Attorney General to the Deputy Treasurer which contained the author's opinion of a proposal but which neither provides advice nor suggests any recommendations to operationalize the opinion within the deliberative process of government decision or policy making was not exempt. (Order #P-920)

• "Concerns" do not qualify as advice or recommendations - expression of concern about a statement in an investigative report which also asks that the report be amended does not qualify as "advice or recommendations". Similarly, a response describing the amendment made to the report is also not covered by this exemption. (Order #M-523)

• Opinion or factual material which does not reveal a recommended course of action is not covered by this exemption. (Order #M-523)

• A letter exchanged between 2 managers in an institution which clarifies the role of an investigator into a complaint of discrimination did not contain "advice or recommendations". (Order #M-523)

• Records generated in the process of checking and analysing tenders did not contain advice or recommendations. (Order #M-892)

• A checklist of office procedures for opening highly confidential files does not fall under this provision.(Order #P-1602)

(b) Human Resources

• A record dealing with what two individuals' salaries will be is not part of the deliberative process of government decision making or policy making; rather, it is a routine decision about an employee or group of employees. Such a decision does not involve policy considerations or the consideration of alternative courses of action. As a result, this exemption does not apply. (Orders #M-102, P-434, M-396)

ss.(1) - Officer, Employee or Consultant Retained

• The words "retained by" presuppose a formal engagement of professional services by fee. (Order #P-278) To determine whether a consultant has been "retained" by an institution, a number of factors must be considered. The payment of a fee is an important indicator in determining whether a formal engagement of services has occurred. In this case, the institution intended to and did retain the services of the consultant researcher, despite the absence of a fee. (Orders #P-454, P-463)

• Where a record did not contain the name of the author and the Commission had not been provided with evidence as to whether the author was an officer or employee of the institution or a consultant retained by the institution, the record may not be exempt even if it contained advice and recommendations. (Order #M-315)

• Section 13(1) [FIPPA] is limited to records created by consultants or Ontario public servants or others in the employ of institutions covered by the Act. As a result, in Order #56, the Commission ruled that recommendations from civil servants in other jurisdictions were not covered by this exemption. However, in Order 170, the Commission apparently allowed the exemption to apply to records obtained from the Office of the Ombudsman, which is not an institution under the Act. (Orders #P-56, P-170 (at page 23))

• Recommendations made by an inter-ministerial committee were found to be exempt. (Order #P-879)

• The Commission Found that although input from focus groups could be helpful in formulating government policy, members of the public are not public servants or consultants retained by the Ministry, and this input does not constitute recommendations for the purpose of section 13 (1). (PO-1726)

  The value-added work of a polling firm in summarizing, analyzing, and interpreting results of focus group sessions would not constitute advice or recommendations. To fall within the meaning of this section the consultant would have to take the further step of applying analysis in the form of actual advice, recommendations or suggested courses of action to be taken by the client Ministry. (Order# PO-1726)

ss.(2) - General

• Subsection 2 of this exemption must be considered before a decision is made to use this exemption. The Commissioner can order the head to do this where there is no evidence it was done. (Orders #P-56, P-92)

• Records falling within ss.2 are not subject to this exemption in their entirety even where they contain advice and recommendations. (Orders #P-726, P-763, P-1054)

ss.(2)(a)

• When conducting an investigation into a house fire under the Fire Protection and Prevention Act (FPPA) the Ontario Fire Marshall (OFM) does not carry out an enforcement or regulatory responsibility. Furthermore, the FPPA does not contain penalties or other enforcement provisions which arise from the specific investigative power. OFM investigations of this nature may reveal possible violations of law, but the law to be enforced in such a case would be the arson provisions of the criminal code. Therefore, fire investigation reports relating to the investigation were not exempt under this provision. (PO-1833)