When can Cabinet shield records from public disclosure? In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4, the Supreme Court of Canada decided that the exemption for Cabinet records under Ontario's Freedom of Information and Protection of Privacy Act applied to prevent the public from accessing the Premier's mandate letters to his Cabinet ministers. In its decision, the Court interpreted the Cabinet confidentiality exemption broadly, holding that doing so was necessary to promote good government and preserve the constitutional convention of Cabinet confidentiality.
What you need to know
- Cabinet exemption under freedom of information legislation interpreted broadly.The Supreme Court concluded that the Cabinet confidentiality exemption must be applied broadly, as the sphere of confidentiality around Cabinet deliberations is a constitutional convention that is essential for ministerial responsibility and therefore responsible government.
- Mandate letters are a part of Cabinet's deliberative process.The Court held that the Premier's mandate letters to his Cabinet ministers are not "endpoints" in Cabinet's deliberative process Rather, they are a crucial part of Cabinet's deliberative process and are exempt from disclosure.
- Government institutions may increasingly claim Cabinet and government-related exemptions. Because the Supreme Court interpreted the Cabinet exemption expansively, institutions and government agencies may increasingly rely on Cabinet and government advice exemptions when responding to access records. But the Cabinet exemption is unique, so it remains to be seen whether the privacy commissioners will extend the Supreme Court's reasoning to other exemptions.
- Supreme Court applies interventionalist administrative law approach.The Supreme Court's decision is also another application of its revamped...
