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SCC Sanctions Balanced Approach to Access Requests
May 13, 2014

The Supreme Court of Canada recently upheld the denial of an individual’s request for access to government records that would reveal advice or recommendations of a public servant. In John Doe v. Ontario (Finance) the Court confirms that a balanced approach must be taken regarding requests under access to information legislation.  The goal is not unfettered access at the expense of government function. Rather, transparency and accountability goals must be balanced against the legitimate need for confidential discussion and decision making by government and public bodies when warranted.

Following amendments to corporate tax legislation in Ontario, an individual made an access request for records about the effective date and retroactive application of the amendments. The records in question were drafts of policy options suggesting when amendments should take effect and to what extent the amendments should have retroactive effect. The Court agreed with the Ministry’s initial determination to deny access on the basis that disclosure of the records would reveal advice or recommendations of a public servant under section 13(1) of the Ontario Freedom of Information and Protection of Privacy Act.

In arriving at this conclusion, the Court made the following statement about the importance of maintaining a balanced approach to access requests:

Access to information legislation serves an important public interest: accountability of government to the citizenry. An open and democratic society requires public access to government information to enable public debate on the conduct of government institutions.

However, as with all rights recognized in law, the right of access to information is not unbounded. All Canadian access to information statutes balance access to government information with the protection of other interests that would be adversely affected by otherwise unbridled disclosure of such information.

The Court acknowledged the important purpose of exempting advice or recommendations within government institutions from access to information i.e., the purpose of preserving an effective and neutral public service so as to permit public servants to provide full, free and frank advice. Indeed, the Court observed that a decision maker might hesitate to even request advice or recommendations in writing concerning a controversial matter if he knew the resulting information might be disclosed.

John Doe v. Ontario (Finance), 2014 SCC 36.