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. 126 [43] The purpose of this provision is to preserve an effective and neutral public service so as to permit public servants to provide full, free and frank advice… Failing to exempt such material risks having advice or recommendations that are less candid and complete, and the public service no longer being perceived as neutral… [44] In my opinion, Evens J. (as he then was) in Canada Council of Christian Charities v. Canada (Minister of Finance), 1999 CanLII 8293 (FC), [1999] 4 F.C. 245, persuasively explained the rationale for the exemption for advice given by public servants. Although written about the equivalent federal exemption, the purpose and function of the federal and Ontario advice and recommendations exemptions are the same. I cannot improve upon the language of Evans J. and his explanation and I adopt them as my own: To permit or to require the disclosure of advice given by officials, either to other officials or to ministers, and the disclosure of confidential deliberations within the public service on policy options, would erode government’s ability to formulate and to justify its policies. It would be an intolerable burden to force ministers and their advisors to disclose to public scrutiny the internal evolution of the policies ultimately adopted. Disclosure of such material would often reveal that the policy-making process included 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. In the hands of journalists or political opponents this is combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness. [paras. 30-31] [45] Political neutrality, both actual and perceived, is an essential feature of the civil service in Canada (Osborne v. Canada (Treasury Board), 1991 CanLII 60 (SCC) [1991] 2 S.C.R. 69, at p. 86; OPSEU v. Ontario (Attorney General), 1987 CanLII 71 (SCC), [1987] 2 S.C.R., at pp. 44-45). The advice and recommendations provided by a public servant who knows that his work might one day be subject to public scrutiny is less likely to be full, free and frank, and is more likely to suffer from self-censorship. Similarly, a decision maker might hesitate to even request advice or recommendations in writing concerning a controversial matter if he knows the resulting information might be disclosed. Requiring that such advice and recommendations be disclosed risks introducing actual or perceived partisan considerations into public servants’ participation in the decision-making process. [46] Interpreting “advice” in s. 13(1) as including opinions of a public servant as to the range of alternative policy options accords with the balance struck by the legislature