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The Canadian government is based on a Cabinet system. Thus, responsibility rests not in a single minister but on a committee of ministers sitting in Cabinet. Cabinet ministers are collectively responsible for all actions of the Cabinet and they must support all decisions of the Cabinet whether directly involved or not and whether they agreed initially or not. However, to reach that final decision, all ministers must be able to express their views freely during the discussions leading up to Cabinet decisions. To allow this exchange of views to be disclosed publicly would result in the erosion of collective responsibility for ministers. As a result, the collective decision-making process has traditionally been protected by the rule of confidentiality which protects the principle of the collective responsibility while enabling ministers to engage in full and frank discussions necessary for the effective functioning of a Cabinet system of government.
In order to preserve this rule of confidentiality, subsection 69(1) of the Access to Information Act provides that the Act does not apply to confidences of the Queen's Privy Council for Canada. Confidences of the Queen's Privy Council for Canada are not exhaustively defined in the Act. This provision lists some specific types of records but states that this list does not restrict the generality of the group of records referred to as confidences of the Queen's Privy Council of Canada.
Government policy requires that government institutions consult with Counsel, Privy Council Office, in all instances where information which may qualify as a Cabinet Confidence has been identified in response to a request under the Act. Such consultation should take place under the auspices of the legal counsel for the institution and involves the transmittal to the Privy Council Office of copies of the information involved with sufficient other documentation to enable a determination to be made.
Records that are excluded from the Act must be distinguished from records exempted from disclosure. Exempted records are subject to review by the Information Commissioner and the Federal Court. Excluded records are not; neither the Information Commissioner nor the Federal Court has the authority to examine such documents.
In order to assist the Information Commissioner in conducting investigations, the policy requires that government institutions, upon a request by the Commissioner, prepare a certificate to assure the Commissioner that a record is a confidence of the Queen's Privy Council for Canada within the meaning of section 69 of the Act, in accordance with the procedures set out in Chapter 3-4.
Although the Access to Information Act does not apply to confidences of the Queen's Privy Council for Canada, an individual's request for such a record must be answered. This is a requirement of government policy, not of the Access to Information Act. A response should be sent using the Model Letter in Chapter 3-7, making reference to section 68 or 69 of the Act, and advising of the requester's right to complain to the Information Commissioner.
2. Types of documents
Subsection 69(1) contains a list of types of documents which fall within the broad group referred to as confidences of the Queen's Privy Council for Canada. The list is not exhaustive but provides a series of examples of records which are confidences of the Queen's Privy Council for Canada.
Subsection 69(2) of the Act states that "Queen's Privy Council for Canada" means the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, Cabinet and committees of Cabinet. Committees of Cabinet include standing committees, ad hoc committees and any other committee of ministers. In addition, meetings or discussions between ministers can result in the creation of records which are confidences of the Queen's Privy Council for Canada, providing that the discussions concern the making of government decisions or the formulation of government policy.
For convenience, in the following material "Confidences" will be used to refer to "confidences of the Queen's Privy Council for Canada", and "Cabinet" will be used to refer to "the Queen's Privy Council for Canada".
Confidences are defined in subsection 69(1) of the Act by listing seven types of documents set out in paragraphs 69(1)(a) through 69(1)(g). In addition, subsection 69(1) states that this list is not to be treated as all inclusive. The types of records that are specifically listed in subsection 69(1) are more fully described below.
Paragraph 69(1)(a) refers to records the purpose of which is to present proposals or recommendations to Cabinet. This group of records includes but is not restricted to documents entitled Memoranda to Cabinet. For example, submissions to Treasury Board are records which present proposals or recommendations to Cabinet. The purpose for which a record was prepared and its contents are the determining feature, not the document's title.
Generally, a memorandum presenting proposals to Cabinet will be signed by the minister recommending the action proposed. However, this is not always so. Memoranda may be signed by the Secretary to the Cabinet or by a Secretary to a committee of Cabinet and still be a Confidence.
Drafts of memoranda are also Confidences. Thus, a draft memorandum which was created for the purpose of presenting proposals and recommendations to Cabinet but which was never actually presented to Cabinet is still a Confidence. Equally a memorandum in final form is a Confidence even if it has not been presented to Cabinet.
Material appended to a memorandum presented to Cabinet will not necessarily be a Confidence. Such material should be examined independently of its attachment to the memorandum. If a record was not prepared to present recommendations or proposals to Cabinet but rather was prepared for use unrelated to the Cabinet process it is not itself a Confidence. For example, memoranda to Council may have as appendices newspaper clippings, tables of statistics, reports prepared for use within a department. These records in their original state are not Confidences and they do not become Confidences simply because they were attached to a memorandum and are thereby distributed to Cabinet or to Ministers of the Crown for use in Cabinet deliberations. However, the fact that they were attached to a memorandum to Cabinet is a Cabinet confidence and should not be revealed.
Records which are determined to be Confidences pursuant to subsection 69(1) must be distinguished from records which are determined to contain advice or recommendations developed by or for a government institution or a Minister of the Crown, pursuant to paragraph 21(1)(a) of the Act. As mentioned, the Act does not apply to Confidences and a refusal to provide access to such documents is not reviewable. The main difference between records described in paragraph 69(1)(a) and those in paragraph 21(1)(a) is the purpose for which they were prepared. Memoranda to Cabinet are prepared for the purpose of presenting recommendations or proposals to Cabinet while the paragraph 21(1)(a) records contain advice or recommendations developed for or by a government institution or for a Minister of the Crown but are not records which have been prepared for consideration by Cabinet. Refer to point (e) below for a further discussion of the distinction between subsections 21(1) and 69(1).
Paragraph 69(1)(b) refers to records the purpose of which is to present background explanations, analyses of problems or policy options to Cabinet for consideration by Cabinet in making decisions. Although discussion papers, as contemplated by the Act, no longer form part of the Cabinet Papers System there may be requests for discussion papers, which were at the time they were prepared, part of the Cabinet Paper System. Paragraph 69(1)(b) would apply to these records. Documents may also be mislabelled as discussion papers. When dealing with such documents, it is important to note that the title of the document is not determinative of the character of the document. For example, a document entitled Discussion Paper but containing recommendations or proposals to be presented to Cabinet is not a discussion paper but rather a memorandum.
Pursuant to paragraph 69(3)(b), once a decision to which a discussion paper relates has been made public, that paper is no longer considered to be a Confidence. Also, if the decision to which the discussion paper relates is not made public, but four years have passed since the decision was made, then again, the discussion paper is no longer considered to be a Confidence. Thus, the Act will apply to these documents, and unless an exemption applies, they should be disclosed pursuant to a request under the Act. It should be noted that, where no decision has been made at all, paragraph 69(3)(b) does not apply.
Agenda and Records of Cabinet Deliberations
Paragraph 69(1)(c) refers to agenda of Cabinet and records recording the deliberations or decisions of Cabinet. This type of record includes agenda of meetings of Cabinet and Cabinet committees, the minutes of any meeting of Cabinet and the records of the decisions made in such meetings (e.g. Treasury Board decision letters). It should be noted that these will obviously include not only drafts of these documents but also any informal notes which officials occasionally make of Cabinet or Cabinet committee meetings.
A distinction must be made between the text of the formal Record of Decision, which always remains a Confidence, and the substance of the decision of Cabinet, which is often made public. The formal text of the Record of Decision is always a Confidence and is excluded from the application of the Act. The substance of a decision reached by Cabinet may be disclosed to the public as deemed appropriate by Cabinet or by a Minister with the approval of Cabinet. For example, the Treasury Board may wish to reflect its decision in circulars and manuals. Making the substance of the decision public also makes any related discussion papers subject to the application of the Act pursuant to paragraph 69(3)(b).
Records of Communications Between Ministers
Paragraph 69(1)(d) refers to records used for or reflecting communications between Ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy.
Such a record may take the form of a letter from one minister to another setting out the minister's opinions or decisions. Also, a record which contains notes taken during informal discussions between ministers would be included as would any record prepared for the use of the minister in discussion with a colleague or colleagues.
Records of communications between ministers that were not used to or do not reflect discussions relating to the making of government decisions or the formulation of government policy do not fall under this category.
Records to Brief Ministers
Paragraph 69(1)(e) deals with records the purpose of which is to brief Ministers of the Crown in relation to matters that are before, or are proposed to be brought before Cabinet. It also deals with records the purpose of which is to brief ministers in relation to matters that are to be the subject of communications or discussions between ministers concerning the making of government decisions or the formulation of government policy.
Again, care must be taken to distinguish these records from those described in paragraph 21(1)(a) concerning advice or recommendations developed by or for a government institution or a Minister of the Crown. Policy recommendations can appear in a record created independent of the Cabinet process, which record was not prepared for the purpose of briefing a minister in relation to matters before Cabinet or for use in a discussion with other ministers. The purpose for which the record was prepared is the crucial factor.
For example, take a situation where a formal Record of Decision directs a government department to develop policy recommendations for its minister on a particular subject. The officials in that department have meetings for which agendas are prepared, notes are made of the proceedings and reports are developed to be the basis of subsequent discussions on the same subject. Although the ultimate purpose of the meetings and reports is to develop policy recommendations for the use of the minister in his or her presentation to Cabinet, the records themselves are not Confidences. The records were created for the use of officials while they are developing policy, not for the use of the minister. However, if any of the information in these records provides a link to Cabinet, that information should be protected. In the same view, the end product (e.g. what the minister uses to make a presentation to Cabinet) is a Confidence.
Paragraph 69(1)(f) refers to draft legislation. This provision relates to any drafts of proposed legislation. It is not relevant whether the legislation was ever introduced into the House or the Senate or indeed seen by Cabinet, it still remains a Confidence.
Draft legislation includes draft Bills, draft regulations and draft Orders in Council. Draft legislation remains a Confidence even after the final version is introduced in the House or the Senate or in the case of draft regulations or draft Orders in Council, even after they have been approved by the Governor-in-Council and published.
Records Containing Information About Confidences
Paragraph 69(1)(g) refers to records that contain information about the contents of any record specifically listed in paragraphs 69(1)(a) through 69(1)(f). This paragraph does not cover records which simply contain information that is also in a record listed in paragraphs 69(1)(a) through (f). In order for the paragraph to apply, the record must connect the information provided with the collective decision-making and policy formulation processes of ministers.
For example, if a record refers to certain statistics which are also found in a memorandum to Cabinet, this fact alone does not convert the first record into a Confidence. But if the first record refers to the fact that a memorandum to Cabinet contained the statistics, then that first record itself becomes a Confidence. The most frequent example of this type of record is likely to be a document which refers to a Record of Decision.
Severability may be applied to records falling under paragraph 69(1)(g), with the approval of the Privy Council Office in each case).
The definition of Confidences as set out in the listing of types of records in paragraphs 69(1)(a) through 69(1)(g) is not exhaustive. Subsection 69(1) states that Confidences include those types of records while not restricting the generality of the group of records which are Confidences. If there is any doubt concerning a document the legal advisors within government institutions are to be consulted and they in turn will consult with the Legal Counsel, Privy Council Office.
3. Time limits
The operation of subsection 69(1) is subject to certain time limits set out in subsection 69(3). The exclusion of Confidences from the application of the Act operates only for twenty years. After that time, the record will be subject to the Act and its releasibility must be determined by reference to the exemption provisions.
Discussion papers, described in paragraph 69(1)(b) of the Act, are no longer prepared. Should they be reinstated or should an access request deal with a discussion paper as they were prepared before 1985, they are to be treated differently than other Confidences as set out in paragraph 69(3)(b) of the Act. If the decision to which the discussion paper relates has been made public or if four years have passed since the decision was made (regardless of whether it has been made public) the exclusion provision no longer applies. Access to the discussion paper then becomes subject to the provisions of the Act.
4. Procedures to be followed in the operation of subsection 69(1)
4.1 Review by departmental access officials and officials with expertise in the subject area
Once the relevant records have been selected from departmental files either officials in the Access to Information and Privacy Office or officials with subject area expertise or both review the records. If they consider records or portions of records to contain Cabinet confidences, they should indicate which records or portion of records are involved and which paragraph under Section 69 applies. For example, if a portion of a record reveals the contents of a record recording decisions of Council, the officer should flag that portion with the following notation: SEVER - 69(1)(g) re 69(1)(c).
4.2 Consultation required
The policy requires that once the review process is completed, all records that may themselves be Cabinet confidences or that may contain portions revealing the contents of Cabinet confidences must be sent to departmental legal counsel for review. Those records which legal counsel agrees may be or may contain Cabinet confidences must be sent to the Office of Counsel of the Privy Council Office. When sending the records to PCO, an explanation should be given by the departmental advisor indicating why the record or portion of the record should be excluded under Section 69. This is particularly important for documents falling outside the formal Cabinet Paper System (for example, overhead slides prepared to make presentations to Cabinet, without reference to the presentation appearing on the paper copies of the slides).
The documents sent for review to PCO should be listed as in the Model Schedule included in Chapter 3-4. With voluminous requests, it is preferable to send a diskette on which revisions can be made by PCO. All documents are returned to departments after the review is done. If further questions arise after PCO review, the documents will have to be sent back to PCO.
5. Investigation of a complaint
In the event that a requester complains about the refusal of access to records, an investigator for the Office of Information Commissioner will ask to see all records to which the applicant was refused access. The investigator cannot have access to those records or portions of records for which an exclusion under section 69 was claimed. Only records from which Cabinet confidences have already been severed can be made available to the investigators or the Information Commissioner. The Commissioner's office may, however, request certification that records or parts of records are Cabinet Confidences.
Subject to the two exceptions below, there is no discretionary power provided to an individual minister or government institution to make a Confidence accessible to the public. That power is available only to Cabinet itself or the Prime Minister. The minister or ministers concerned may authorize the disclosure of records that fall under paragraph 69(1)(d) -- records used for or reflecting communications or discussions between ministers on matters relating to the making of government decisions or the formulation of government policy -- and briefing notes relating thereto, which fall under paragraph 69(1)(e).
Whenever possible and with the approval of the Privy Council
Office, the principle of severability should be adopted for documents which fall
under paragraph 69(1)(g). If the reference to a Confidence can reasonably
be severed from the record in which it is found, this should be done to allow
the rest of the document to become subject to the Act. The Access to Information
Act does not provide for the severing of information from records that fall
under paragraph 69(1)(g) but such a practice is required as a matter of
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