Manual
This section includes the following topics:
Summary
Advice and
Recommendations
Exceptions
Record More
than 20 Years Old
Basis
for Decision [FIPPA]
Summary
Subsection 13(1) Freedom of Information and Protection of Privacy Act (FIPPA)/s.7(1)
Municipal Freedom of Information and Protection of Privacy Act (MFIPPA)
provides a discretionary exemption for records where disclosure would
reveal the advice or recommendations of officers or employees of
institutions or of consultants retained by an institution. Officers or
employees include those persons who work for an institution or who perform
duties under a contract of employment. The advice of an officer or
employee of another institution cannot be exempted under this section, nor
can advice of a volunteer.
The compelling public interest provision in s.23
FIPPA / s.16 MFIPPA applies
to this exemption, except for the records over 20 year old that would
qualify for the subsection 3 exception.
Advice and Recommendations
s.13(1)
FIPPA / s.7(1) MFIPPA
Please note: the wording of FIPPA/ MFIPPA differs somewhat for this
section
The exemption is for advice or recommendations. There is some overlap
between the terms advice and recommendations. Recommendations refers to
formal recommendations about courses of action to be followed which are
usually specific in nature and are proposed mainly in connection with a
particular decision. Advice refers to less formal suggestions about
particular approaches to take or courses of action to follow. The advice
or recommendations must be communicated between individuals employed by or
in the service of the institution, and must be made in the course of the
deliberative process of decision-making and policy-making. If an accurate
inference concerning the advice given may be drawn from a record, it would
be exempt. An employee's memo to file on the other hand, has not been
communicated and would therefore not be included in this exemption.
For example:
A draft letter containing advice which is communicated to another person
may be advisory, but where there is no communication of the draft letter
(such as with a letter never sent but simply filed), it does not fall
under the exemption.
Advice must contain more than mere information. Advice and
recommendations, however, do not cover the whole range of activities
carried out by employees of institutions in the course of policy
development, administration of programs, operation of facilities and
adjudication. Advice pertains to the submission of a suggested course of
action which will be accepted or rejected during the deliberative process.
For example:
Draft reports or briefing materials not intended for Cabinet or not
qualifying for the closed meeting exemption available to local
institutions, would normally fall within this exemption.
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/her discretion to disclose the
record.
The Exceptions
Section 13(2) FIPPA / s.7(2) MFIPPA requires that the head shall not
refuse, under s.13(1) FIPPA / s.7(1) MFIPPA, to disclose specified types
of records and information despite the exemption contained in s.13(1)
FIPPA / s.7(1) MFIPPA. These "exceptions" are intended to insure
that factual or statistical information is publicly available. Where
factual or statistical information and advice and recommendations are
contained in the same record, the advice and recommendations may be
severed and withheld. However, severing may not be possible and the
document withheld in whole, where the factual information is so
intertwined with the advice and recommendations that it is not possible to
disclose factual information without disclosing exempt information.
In addition, subsection 13(2) FIPPA / s.7(2) MFIPPA requires that
certain reports, studies, plans and reasons for final decisions be
released, even though they may contain advice or recommendations.
It should be noted that subsection 13(2) FIPPA / s.7(2) MFIPPA is an
exception only to s.13(1) FIPPA / s.7(1) MFIPPA. Therefore, a record such
as an environmental impact statement which contains advice or
recommendations cannot be exempt under subsection s.13(1) FIPPA / s.7(1)
MFIPPA. It may, however, be covered by other exemptions.
A "report" or "study" within subsection 13(2) FIPPA
/ s.7(2) MFIPPA means a completed document ready for presentation and
would not include working papers used in preparation such as notes and
preliminary drafts.
Factual Material
s.13(2)(a)
FIPPA / s.7(2)(a)
MFIPPA
Records or parts of records containing factual material must be
disclosed.
"Factual material" means a coherent body of facts which can be
separated from the rest of the advice or recommendations, for example, an
appendix of factual information supporting a policy document. Where
factual material and advice or recommendations are contained in the same
record, the advice or recommendations may be severed and withheld.
However, it may not be possible to sever advice and recommendations and
still leave meaningful factual information. In this circumstance, severing
may not be appropriate, and the information should not be disclosed.
Statistical Survey
s.13(2)(b)
FIPPA / s.7(2)(b)
MFIPPA
A statistical survey must be disclosed unless another exemption
applies.
A statistical survey is a record showing the collection, analysis,
interpretation and presentation of aggregate data in relation to a topic
or issue which is the object of study, for example, a poll. Any
information identifying individuals must be removed before the record is
disclosed.
Valuator's Report
s.13(2)(c)
FIPPA / s.7(2)(c)
MFIPPA
A valuator is someone with specific expertise appointed to determine or
estimate the value, price or merit of an article. He or she need not be an
officer of the institution. A valuator's report would include an appraisal
of the value of real property.
Environmental Impact Statement
s.13(2)(d)
FIPPA / s.7(2)(d)
MFIPPA
An environmental impact statement or similar record must be disclosed.
An environmental impact statement is a record containing a technical
assessment, including findings and conclusions respecting the social,
cultural, economic and environmental consequences of projects such as
buildings and highways.
Test Report
s.13(2)(e)
FIPPA
An institution cannot under subsection 13(1) refuse to disclose a
report of a test carried out on a product for the purpose of government
equipment testing or a consumer test report.
In this subsection, "government" includes ministries and all
the agencies and other bodies designated as institutions. Product and
environmental testing is discussed under subsection 18(2) FIPPA.
Report on Performance
s.13(2)(f)
FIPPA / s.7(2)(e)
MFIPPA
A report or study on the performance or efficiency of an institution is
not exempt under s.13(1) FIPPA / s.7(1) MFIPPA. The report or study may be
of a general nature or about a particular program or policy.
For example: a final audit report, including its findings and conclusions
would not be exempt.
Feasibility Study
s.13(2)(g)
FIPPA / s.7(2)(f)
MFIPPA
A feasibility or other technical study, including a cost estimate,
relating to an institution's policy or project must be disclosed unless
another exemption applies.
A feasibility or other technical study is prepared by experts in the
relevant discipline to determine whether a proposed policy or project can
be accomplished within certain given assumptions and constraints. If the
study is classified as a feasibility study, the record will be fully
disclosed, including cost estimate information.
For example: a feasibility study for a micrographics program would not be
exempt from disclosure under this subsection.
Field Research Report
s.13(2)(h)
FIPPA / s.7(2)(g)
MFIPPA
The exemption in s13(1) FIPPA/ s.7(1) MFIPPA does not apply to a report
setting out the findings and conclusions of field research on an issue or
problem which is undertaken before the formulation of a policy proposal.
Proposal to Change or Establish a Program
s.13(2)(i)
FIPPA / s.7(2)(h)
MFIPPA
This subsection requires disclosure of a final plan or proposal to
change or establish a program, including a budgetary estimate, or, in the
case of FIPPA, whether or not the plan or proposal is subject to approval.
This section must be considered in relation to the exemption in s.18(1)(f)
FIPPA / s.11(f) MFIPPA, and refers to a final plan or proposal to alter or
establish a program which provides a service to the public and which is
developed or implemented to carry out the institution's responsibilities.
Subsection 18(1)(f) FIPPA / s.11(f) MFIPPA covers internal administrative
arrangements relating to personnel which do not fundamentally alter the
nature and content of the programs being delivered to the public.
If the plan or proposal is one that is to be presented to Cabinet or its
committees, this section does not apply and s.12 FIPPA must be considered.
Interdepartmental Task Force Report (FIPPA)/Committee
Report (MFIPPA)
s.13(2)(j)
FIPPA / s.7(2)(i)
MFIPPA
A report of a committee within an institution must be disclosed unless
another exemption applies to the record.
Unless another exemption applies, this subsection requires disclosure
of a report of an interdepartmental task force or similar body, or of a
committee within an institution that has been established for the purpose
of preparing a report. The word "interdepartmental" in this
subsection means "inter institutional" in the sense of involving
representatives of more than one institution designated under the Act.
For example:
A report of a task force that included members from the Ministry of the
Environment and Ontario Hydro is subject to this subsection.
Report of a Body Attached to
Institution
s.13(2)(k)
FIPPA / s.7(2)(j)
MFIPPA
The type of body referred to in this subsection is one that consists
primarily of representatives from outside the institution, and that
undertakes inquiries and make reports or recommendations to the
institution. The phrase "attached to an institution" indicates
that the body has been appointed or invited to meet and deliberate by
someone in an institution with appropriate authority. A local grants
committee established to make recommendations regarding the awarding of
grants is an example of one such body.
Reasons For a Final Decision
s.13(2)(l)
FIPPA / s.7(2)(k)
MFIPPA
Unless another exemption applies, this exception requires disclosure of
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 a
discretionary power under an enactment or scheme administered by the
institution.
This exception covers a wide range of decisions made within an
institution. It applies regardless of appeal rights and whether the
reasons are recorded in internal memoranda, external correspondence, or
given by the deciding officer or subsequently incorporated in a decision,
order or ruling. Names and other features identifying individuals
mentioned in the record may be subject to the personal information
exemption.
Record More Than 20 Years Old
s.13(3)
FIPPA / s.7(3) MFIPPA
Unless another exemption applies, an institution must release a record
that is more than 20 years old. This subsection does not place an
obligation on an institution to retain a record for 20 years. Retention
schedules will be followed in determining the disposition of records.
Basis for Decision or Policy(FIPPA)
s.13(3)
FIPPA
Under FIPPA a head shall not refuse to disclose a record under subsection
13(1) where he/she has publicly cited the record as the basis for making a
decision or formulating a policy.
For example:
This subsection applies where portions of a record have been disclosed to
the media to explain a decision.
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OCIPO 
