Supreme Court Finds the Premier’s Mandate Letters Exempt from Disclosure

February 20, 2024

Written By Robert Staley, Douglas Fenton and Miranda Cooper

In ruling that the Ontario government is not required to turn over Cabinet mandate letters, the Supreme Court of Canada has adopted a broad and expansive view of Cabinet confidentiality. The Supreme Court's decision brings clarity to not only the scope of protection afforded to Cabinet records under freedom of information legislation, but more broadly to the constitutional sanctity of Cabinet secrecy.

Background

At issue in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4 (IPC) was a request by the CBC for disclosure of mandate letters prepared by the Premier of Ontario on taking office in 2018. The letters identified the priority policy initiatives the Premier expected Cabinet ministers to pursue during their tenure.

The CBC made its request under the Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31 (FIPPA). In refusing to produce the mandate letters, Cabinet Office relied upon the “Cabinet records” exemption in s. 12(1) of FIPPA, which protects from disclosure records that “would reveal the substance of [Cabinet] deliberations.”

The CBC appealed to Ontario's Information and Privacy Commissioner (the Commissioner) who concluded that the letters were not exempt and ordered their disclosure. In the Commissioner's view, s. 12(1) was “designed to protect deliberative communications occurring within” Cabinet’s policy-making process, not the “outcomes” of that process or mere “subjects” or “topics” of deliberation.

On judicial review, the Divisional Court and Court of Appeal for Ontario both affirmed the Commissioner's decision.

The Supreme Court's Decision

The Supreme Court allowed the appeal, concluding that the Commissioner's interpretation of s. 12(1) of the FIPPA was unreasonable. Central to this conclusion was the Supreme Court's expansive view of the constitutional conventions and traditions governing Cabinet confidentiality.

Writing for the majority, Justice Karakatsanis identified the constitutional convention of Cabinet confidentiality as providing essential context to an interpretation of s. 12(1) of the FIPPA. In this way, it was necessary to approach the statutory exemption with reference to the three rationales for Cabinet secrecy: candour, solidarity and efficiency.

The Court described Cabinet confidentiality as a necessary precondition to responsible government and collective ministerial responsibility. It is only by ensuring that Cabinet ministers can speak freely in the course of their deliberations—without public critique—that one can expect ministers to stand together and accept responsibility as a group when the policy decision is released. In this way, Cabinet confidentiality promotes executive accountability by facilitating candour in ministerial deliberations, despite solidarity when facing the public. It also enhances efficiency by insulating the deliberative process from public scrutiny prior to the formulation and announcement of a final decision.

In the Court's view, while the Commissioner's decision was informed by the concepts of candour and solidarity, it failed to acknowledge the need to ensure efficiency in the deliberative process and its role in promoting effective government. In the Supreme Court's view, “an important part of Cabinet confidentiality is government’s prerogative to decide how and when to announce policy priorities.”

The Court also held that the Commissioner's decision failed to appropriately consider the nature of Cabinet deliberations and the Premier's unique role in that process. Justice Karakatsanis explained how the Premier, as first minister in Cabinet, provides essential functions which, in many ways, are inseparable from Cabinet and its deliberations. The deliberative process itself is dynamic, fluid and evolutive, extending beyond formal Cabinet meetings.

The Court went on to observe that the Commissioner's characterization of the mandate letters as reflecting only non-exempt “outcomes” of the deliberations created an “artificial dichotomy between the Premier’s deliberative process and the rest of Cabinet’s” which is discordant with the Premier’s constitutional role as first minister. The mandate letters cannot be viewed as mere “‘topics’ like items on an agenda” as they contain the Premier’s initial views on policy priorities and initiate Cabinet’s fluid deliberative process.

As such, the Court concluded the letters revealed the substance of Cabinet deliberations and thus fell within the protection provided by s. 12(1) of the FIPPA.

Key Takeaways

IPC will have important implications for individuals and organizations that seek disclosure of information touching on the Cabinet policy making process, and for governments that seek to safeguard that information from disclosure. In affirming a broad view of Cabinet confidentiality—and its importance in the Canadian system of government—IPC will likely make it comparatively more difficult to obtain disclosure of information touching on Cabinet deliberations.

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