Manual
This section includes the following topics:
Summary
Substance of
Deliberations
Exceptions to
Exemptions for Cabinet Records
Summary
Section 12 of Freedom of Information and Protection of Privacy Act (FIPPA)
is a mandatory exemption. There is no comparable section in Municipal
Freedom of Information and Protection of Privacy Act (MFIPPA). Its purpose
is to prohibit disclosure of records where disclosure "would reveal
the substance of deliberations of an Executive Council or its
committees". The right to claim this exemption is not restricted when
the record has been disclosed without the knowledge of the institution.
"Executive Council" means Cabinet.
The exemption applies to:
- Cabinet and committees of Cabinet including: Policy and Priorities
Board, Management Board, Legislation and Regulations, and Cabinet
committees established for various policy areas or that are
constituted from time to time.
- Records not sent to Cabinet or its committees, if disclosure of the
record would permit an accurate inference concerning the substance of
deliberations of Cabinet or its committees.
The exemption does not apply to:
- Records sent to Cabinet in a manner that is outside the normal
Cabinet submission process. For example, the exemption does not apply
where a non-governmental third party sends a proposal directly to
Cabinet.
It is not necessary to show that any injury would result from
disclosure in order to claim the exemption.
The compelling public interest override in s.23
does not apply to this exemption.
Substance of Deliberations
s.12(1)
A head shall refuse to disclose a record where the disclosure would reveal
the substance of deliberation of Cabinet or its committees, including
certain records referred to in clauses (a) through (f). The use of the
word "including" indicates an expanded definition of the types
of records which are deemed to qualify as subject to the exemption,
regardless of whether their disclosure would reveal the substance of
deliberations of Cabinet. At the same time, the types of records listed in
clauses (a) through (f) are not the only ones eligible for the exemption.
Any record whose disclosure would reveal the substance of deliberations of
Cabinet or its committees qualifies for the exemption in s.12(1). Only in
rare circumstances would a record which has never been placed before
Cabinet reveal the "substance of deliberations" of Cabinet.
Agendas and Minutes
s.12(1)(a)
An agenda, minute or other record of the deliberations or decisions of the
Cabinet or its committees is exempt. "Other records" have to be
of the same nature as an agenda or minute.
Policy Options and Recommendations
s.12(1)(b)
A record containing policy options or recommendations submitted or
prepared for submission, to Cabinet or its committees is exempt. This
includes a Cabinet submission (or policy submission) that proposes
alternative courses of action to resolve a problem, provides discussion of
the merits of the alternatives and makes recommendations.
There must be evidence that the record either was sent to Cabinet for
consideration or was prepared with the specific intention of presenting it
to Cabinet.
Background Explanations and Analyses
s.12(1)(c)
This subsection provides an exemption for records that do not contain
policy options or recommendations referred to in s.12(1)(b), but that do
contain background explanations or analyses of problems submitted or
prepared for submission to Cabinet or its committees for consideration in
making decisions before those decisions are implemented. For this
exemption to apply, it is not enough for the issues to have been
considered, but rather the record itself must have been submitted or
prepared for submission to Cabinet for its consideration.
A Cabinet submission is sometimes accompanied by a record which provides a
background explanation or analysis of the problem which the Cabinet
submission is intended to address. Such accompanying material is only
exempt from disclosure under this subsection until Cabinet has decided the
course of action it will take in relation to the issue and the decision
has been implemented. A decision has been implemented when steps have been
taken to give effect to the decision.
For example:
Cabinet may decide to introduce legislation, but the decision is not
implemented until the legislation is tabled in the Legislative Assembly.
Even though not exempt under this subsection, background explanations
and analyses may be exempt if these records would reveal the
"substance of deliberations" of Cabinet.
Consultation Among Ministers
s.12(1)(d)
This subsection provides an exemption for records used for or reflecting
consultation among Cabinet Ministers on matters relating to making
government decisions or formulating government policy. Such records would
usually be memoranda to and from ministers and minutes of meetings of
ministers. Records not exempt would include those used for consultations
among public servants.
Briefing to Minister
s.12(1)(e)
This subsection provides an exemption for a record to brief a Cabinet
Minister on matters that currently are, or are proposed to be, brought
before Cabinet or its committees, or that are the subject of consultation
among ministers relating to government decisions or formulating government
policy. Such records are ordinarily prepared by the institution's staff or
the minister's political advisors and would typically contain information
that would inform the minister of the essential facts and circumstances
respecting a matter. An index or list of topics or briefings considered by
a minister would not contain sufficient information to fall within the
subsection.
Briefing notes should include information on why the note was prepared.
This is particularly important if the issue is before Cabinet or its
committees (e.g. Management Board of Cabinet) and a claim is made that the
record should be exempt under s.12.
Draft Legislation
s.12(1)(f)
Draft legislation (including regulations) is exempt from disclosure.
However, this subsection only applies where disclosure of the record would
reveal the substance of deliberations of Cabinet. The exemption does not,
therefore, inhibit the practice followed by many ministries of
distributing legislation for comment to interested parties when the draft
legislation is under development by a ministry but has not yet been
submitted to Cabinet. Where the draft has been considered by Cabinet,
Cabinet may consent to distribution of the draft for comment.
Exceptions to Exemption for Cabinet Records
Documents More Than Twenty (20) Years Old
s.12(2)(a)
A head shall not refuse to disclose a record under s.12(1) where the
record is more than 20 years old. This subsection does not place an
obligation on an institution to retain a record for 20 years. Record
retention schedules will be followed in determining the appropriate
disposition of Cabinet records.
Consent of Cabinet
s.12(2)(b)
The Cabinet for which, or in respect of which, the record has been
prepared can consent to access being given to a Cabinet record before the
20-year period has expired. Consent will normally be reflected in a
Cabinet minute.
This exception to the exemption only applies to the Cabinet for which the
record was prepared. One Cabinet cannot consent to the release of
another's records. A Cabinet is considered to have changed where there has
been, for example, an election or a change of government.
Subsection 12(2)(b) does not impose a mandatory requirement but rather
provides the head with discretion to seek Cabinet consent where he/she
feels a record could be released and where a reasonable expectation may
exist that Cabinet will not withhold its consent.
The following are factors that the head might consider in deciding whether
to seek the consent of Cabinet to the disclosure of a record:
- whether or not the government policy contained in the record has
been announced or implemented;
- whether the record would reveal the nature of Cabinet discussion on
the position of the institution;
- whether the record has, in fact been considered by Cabinet.
The head has a duty in every case to consider whether to seek Cabinet
consent. On an appeal, the institution must be able to present evidence
that the head has considered the seeking of consent. Generally, however,
where a body such as the Cabinet of a previous government no longer exists
it will not be practical to seek its consent to disclosure.
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