s.6(1)(a)

• This provision is not broad enough to include records that are about a draft by-law but are not the draft by-law itself. The language in this provision is different than that used in s.6(1)(b); that is, the word "reveal" is not used. Under s.6(1)(b) records from which an accurate inference may be drawn would be included in the exemption. Therefore, the Commission held that this exemption only applies to records which actually contain the draft by-law. (Order #M-394, M-521, M-732)

s.6(1)(b)

• In order to qualify for this exemption, it must be established that a meeting of a council, board, or other body or committee of one of them took place, that a meeting was held in the absence of the public and that a statute authorizes the holding of the meeting in the absence of the public and that disclosure of the record at issue would reveal the actual substance of the deliberations of this meeting. Section 55 of the Municipal Act authorizes the committee of the whole to exclude the public from its meetings. (Order #M-64, M-71, M-98, M-102, M-184, M-196, M-206, M-208, M-219, M-241, M-273, M-310, M-318, M-330, M-367)

• To satisfy this exemption it is necessary that the institution establish that a meeting took place and that it was held in the absence of the public. These meetings are such a departure from the norm, that there must be clear and tangible evidence that the meeting or parts of the meeting were actually held in camera. The fact that the agenda of a meeting indicated that certain matters were "private" does not mean that they were dealt with in the absence of the public. As well, the fact that the records were stamped "in camera" is not sufficient to establish the fact that the matters were dealt with in the absence of the public. (Orders #M-102, M-241, M-367, M-729)

• Even where the information contained in the record has been the subject of the deliberations, unless the record itself contains information that would reveal the substance of the deliberations, the exemption does not apply. As a result, the exemption is limited in its application to those records that would disclose the substance of the deliberations of a closed meeting. (Orders #M-98, M-206, M-208, M-353, M-385, M-667)

• Section 55(1) of the Municipal Act clearly excludes meetings of a committee of the whole from the requirements that meetings be conducted in public and therefore authorizes the holding of meetings in the absence of the public. In this case, a comparison of the in camera records showed that deliberations had in fact taken place and that the exemption therefore applied. (Order #M-208)

• Records concerning a discussion of personal or financial information of an employee of an institution is exempt under this section where they reflect the minutes of an "in camera" meeting. The institution was authorized to hold the private meeting under s.207(2) of the Education Act. (Orders #M-47, M-273, M-481)

• Minutes of settlement regarding negotiations about an outstanding grievance arbitration with an employee of a board was exempt under this provision. The minutes were approved by the committee of the Whole Board during an in camera meeting. Clauses 207(2)(b), (d) and (e) of the Education Act allows in camera meetings regarding personal or financial information of a board member, negotiations regarding employees of the board and litigation affecting the board. The term "substance" means the theme or subject of the meeting. The word "deliberations" refers to discussions that were conducted with a view toward making a decision. In this case, disclosure of the document would reveal the actual substance of the discussions (i.e.: deliberations) conducted by the board, or would permit the drawing of accurate inferences about the substance of the discussions. (Orders #M-184, M-196, M-206, M-241, M-310, M-330, M-353, M-355, M-367, M-490, M-499, M-639)

• A retirement settlement agreement between a City and its former employee was not accessible in this case because the City had discussed the matter in a private meeting and the disclosure would reveal the "substance" of the deliberations. As a result, the City could, in its discretion, apply this exemption to the agreement. This information was not considered in a public meeting, so that s.6(2)(b) did not apply. In a "postscript," the Commission noted that it would be unfortunate if "institutions began to use this provision to routinely shield the financial terms of such agreements from legitimate public scrutiny." This was reiterated in Order #M-367 which dealt with a separation agreement entered into by a Police Service Board and a former Chief of Police. (Orders #M-196, M-330, M-367 and see Order #M-173 under the personal information exemption for another example of disclosure involving retirement settlement agreements.) In Order #M-1160 the minutes of an in-camera meeting did not qualify for exemption where the terms of a settlement were reported but not discussed.

• In this case, the Commission found that a procedural by-law and s.55(1) of the Municipal Act authorized the holding of an in camera Committee meeting in respect of a matter that could become the subject of litigation. As well, upon production of a copy of the minutes of the meeting which indicated that the matter was discussed in camera, the Commission was satisfied that the in camera test was met. (Order #M-219)

• In this case, the Commission ordered the institution to provide further representations as to its exercise of discretion where the records dealt with in the closed meeting had been published in the newspaper. The Commission ruled that the fact of publication was a fundamental factor to be considered in the exercise of discretion and it was not apparent that the institution had considered this factor in claiming the exemption. (Order #M-273)

• There must be clear and tangible evidence that the meeting was held in the absence of the public. Where the council decided to allow a member of the public to be present at a meeting, then the institution could not argue that the meeting was nevertheless one that was closed to the public. (Order #M-318)

• Section 35(4) of the Police Services Act provided the authority for a Police Services Board to hold meetings in camera regarding whether an individual ought to be hired by the Police Services Board. (Orders #M-355, M-367, M-380)

• S.207(2)(a) of the Education Act which authorizes the board to hold a closed meeting to discuss the "security of the property" of the Board, did not apply to correspondence regarding tax levy reconsiderations, and therefore the exemption did not apply. (Order #M-654)

• Because a municipality's resolution to move into closed meeting failed to describe the general nature of the matters to be discussed as required by s.55(7) of the Municipal Act, the municipality failed to establish that it was authorized by the Act to hold a closed meeting, and therefore the exemption did not apply. The resolution stated that "Council go into Committee of the Whole in camera to discuss legal and property matters". (Order #M-784)

• A by-law approving a settlement of a legal action did not reveal the substance of the in-camera deliberations.(Order #M-1101)

s.6(2)(b)

• In this case, in camera approval of Minutes of Settlement were subsequently confirmed by public motion without further comment. As a result, the subject matter of the deliberations was not considered in an open meeting and this exception to the exemption did not apply. (Order #M-184)

• In this case, a consolidated budget which was deliberated in an in camera meeting was formally adopted by council at a public meeting. In order for this exception to the exemption to apply, it must be established that the line items in the budget were considered in the public meeting. In other words, it is not sufficient that the product of, the deliberations be considered in the open meeting; it is necessary that the subject matter of the deliberations, which here would be the line items, be considered in the open meeting. (Orders #M-208, M-353)

• The adoption of a report, without discussion in a public meeting, cannot be characterized as the consideration of the subject matter of the in camera deliberations as contemplated by section 6(2)(b) of the Act. As a result, where in a public meeting, a recorded vote was taken in which the City Council adopted the Executive Committee Report, as amended, without further discussion, this exception did not apply. (Orders #M-241, M-385, M-392)

• The mere disclosure or reporting of a decision made at an in camera meeting, does not necessarily mean that all issues discussed at such meeting fall within the "subject matter of the deliberations" to trigger this exception to the exemption. A distinction has to be made between the product or the results of the deliberations and the subject matter. Thus where 'requests' were made in an in camera meeting and reported in public session, this provision did not apply. (Order #M-353)

• Where a hiring decision was discussed in a closed meeting and where nothing more referrable to the discussion was done in an open meeting, the exemption still applied. In this case, there was no relationship between what was said in the open meeting and the discussions about the hiring decision that took place in camera. (Order #M-355)