Guide to FOIP-Chapter 4

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 109 [47] As this Court recognized in John Doe, “the policy-making process include[s] false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the re-weighing of the relative importance of the relevant factors as a problem is studied more closely” (para. 44, quoting Canadian Council of Christian Charities, at para. 31). In other words, the process is dynamic, fluid, and continues to evolve as leadership changes hands. Cabinet enjoys tremendous flexibility in terms of its organization, its processes, and its composition (White, at p. 34). [49] The dynamic and fluid nature of Cabinet’s deliberative process also means that not all stages of the process take place sitting around the Cabinet table behind a closed door. The decision-making process in Cabinet extends beyond formal meetings of Cabinet or its committees, and encompasses “[o]ne-on-one conversations in the corridors . . ., in the [first minister’s] office . . ., over the phone, or however and wherever they may take place” (Brooks, at p. 242). As Professor Brooks writes, “[n]o organization chart can capture this informal but crucial aspect” of the deliberative process, nor the centrality of the first minister’s role within it (ibid.). … [52] The priorities communicated to ministers by the Premier at the outset of governance are the initiation of Cabinet’s deliberative process, and are subject to change. Ministers may seek to persuade the Premier and the rest of Cabinet that priorities should be added, abandoned, or approached in a different way (see, e.g., H. Bakvis, “Prime Minister and Cabinet in Canada: An Autocracy in Need of Reform?” (2000), 35:4 J. Can. Stud. 60, at pp. 65-66 (discussing the important role of individual ministers and their ability to shape the government’s priorities)). Moreover, the Premier may revise priorities at any point throughout the process — whether due to Cabinet colleagues’ views, advice from civil servants, or events and changing circumstances. … [54] Relatedly, to the extent the IPC required evidence linking the Letters to “actual Cabinet deliberations at a specific Cabinet meeting”, that approach was unreasonable. Such a requirement is far too narrow and does not account for the realities of the deliberative process, including the Premier’s priority-setting and supervisory functions, which are not necessarily performed at a specific Cabinet meeting and may occur throughout the continuum of Cabinet’s deliberative process. Accordingly, it would be unreasonable for the Commissioner to establish a heightened test for exemption from disclosure that would require evidence linking the record to “actual Cabinet deliberations at a specific Cabinet meeting”.