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Order Po-3839-I ORDER PO-3839-I Appeal PA16-678-2 Cabinet Office May 10, 2018 Summary: The access request in this appeal is for meeting minutes, meeting notes and briefing notes produced by the Premier’s Advisory Council on Government Assets relating to wine and spirit retailing and distribution in Ontario. The institution, Cabinet Office, denied access to the records, claiming the application of the mandatory exemptions in sections 12(1) (Cabinet records) and 17(1) (third party information) of the Freedom of Information and Protection of Privacy Act (the Act), as well as a number of discretionary exemptions, including sections 13(1) (advice or recommendations), 18 (economic and other interests) and 19 (solicitor-client privilege). In this interim order, the adjudicator finds that most of the records are exempt from disclosure under section 12(1). The issue of whether the remaining records are exempt under section 17(1) will be determined after the notification of third parties. Statutes Considered: Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as amended, sections 12 and 17(1). Orders and Investigation Reports Considered: Orders PO-1725 and PO-2793-I. OVERVIEW: [1] The requester made an access request to Cabinet Office under the Freedom of Information and Protection of Privacy Act (the Act) for the following information: For the period of October 1, 2014 to October 1, 2016, meeting minutes, meeting notes and briefing notes produced by the Premier’s Advisory - 2 - Council on Government Assets that reference the following [named] organizations in conjunction with the key words “wine and spirit retailing and distribution,” [2] In response, Cabinet Office issued a decision to the requester, denying access in full to the records responsive to the request, claiming the application of the mandatory exemptions in sections 12(1) (Cabinet records) and 17(1) (third party information), as well as the discretionary exemptions in sections 13(1) (advice or recommendations), 18(1) (economic and other interests) and 19 (solicitor-client privilege) of the Act. [3] The requester, now the appellant, appealed Cabinet Office’s decision to this office. [4] During the mediation of the appeal, the appellant indicated that he would be willing to remove any duplicate records from the scope of the appeal. [5] The appeal then moved to the adjudication stage of the appeals process, where an adjudicator conducts an inquiry. Representations were sought and received from Cabinet Office and the appellant. Portions of Cabinet Office’s representations met this office’s confidentiality criteria and will not be set out in this order, but were considered. [6] For the reasons that follow, I find that most of the records at issue are exempt under section 12(1). As a result, it is not necessary to determine whether sections 13(1), 18 and 19 apply to the records I have found exempt under section 12(1). With respect to the remaining records at issue, which I find are not exempt under section 12(1), I will determine whether section 17(1) (the only other exemption claimed for these records) applies to them, pending notification of third parties. RECORDS: [7] The records consist of briefing notes (final and draft), working materials, stakeholder meeting notes and minutes of meetings. ISSUES: A. Does the mandatory exemption at section 12(1) apply to the records? B. Does the mandatory exemption at section 17(1) apply to the records? - 3 - DISCUSSION: Issue A. Does the mandatory exemption at section 12(1) apply to the records? [8] Section 12(1) states: A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including, (a) an agenda, minute or other record of the deliberations or decisions of the Executive Council or its committees; (b) a record containing policy options or recommendations submitted, or prepared for submission, to the Executive Council or its committees; (c) a record that does not contain policy options or recommendations referred to in clause (b) and that does contain background explanations or analyses of problems submitted, or prepared for submission, to the Executive Council or its committees for their consideration in making decisions, before those decisions are made and implemented; (d) a record used for or reflecting consultation among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy; (e) a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committees, or are the subject of consultations among ministers relating to government decisions or the formulation of government policy; and (f) draft legislation or regulations. Representations Cabinet Office’s representations Background [9] Cabinet Office advises that as a result of the breadth of the request, a large number of responsive records were located that relate to the Advisory Council's work on beer, wine and spirit retailing and distribution, and that reference the organizations - 4 - listed by the requester. Cabinet Office then provides the following detailed review of the background to the creation of the records. [10] The responsive records include briefing materials provided to the Premier and Executive Council and/or the Ministers' Table on Government Assets (a Committee of Cabinet). In responding to the request, the term "briefing notes" was interpreted by Cabinet Office to include final briefing material or any related material that was used to brief individuals about the relevant subject matter. In this regard, working materials that the Advisory Council developed internally, which were subsequently used for developing information and materials later presented to Cabinet or the Ministers' Table were included as responsive to the request. [11] The term "meeting notes" was interpreted broadly by Cabinet Office to include material prepared for discussions at meetings, as well as meeting notes that were generated during the course of meetings with stakeholders. [12] For the purposes of making representations, Cabinet Office grouped the responsive records into the following categories: Final versions of briefing material that were presented to the Executive Council or the Ministers' Table on Government Assets (a Committee of Cabinet) (also referred to as "Submissions"); Working material that was developed for the purpose of preparing for briefings to the Premier and Executive Council, and the Ministers' Table on Government Assets. Within the category of working material, included are: a. Draft versions of briefing notes In this set of records there are many iterations of draft briefing notes. These versions are substantially similar to the final versions of briefing material presented to the Executive Council or the Ministers' Table; b. Due diligence materials These records represent the due diligence work that the Advisory Council conducted in order to make recommendations to the Premier and Executive Council. In particular, Advisory Council staff produced a large number of background documents that informed the briefings and advice and recommendations that were made to members of the Advisory Council and subsequently the Premier and the Executive Council. This body of material necessarily includes records that identify issues and contain potential options that were explored and analyzed as part of the process of developing and providing advice and recommendations to the Executive Council. - 5 - Further, many of these records contain assessments of the operational and stakeholder impacts of certain beverage alcohol retailing and distribution options, as well as evaluations of fiscal, operational, legal and other impacts of options under consideration. The working materials represent the "due diligence" undertaken by the Advisory Council in formulating its recommendations to Cabinet. c. Notes taken by the Advisory Council during meetings with stakeholders. [13] In April of 2014, the Premier established the Premier's Advisory Council to Provide Advice on Government Assets ("the Advisory Council"). The mandate of the Advisory Council, established by Order-in-Council through a Terms of Reference, required the Advisory Council to provide analysis, advice and recommendations directly to the Premier, on how best to maximize the value and performance of government business enterprises and other Provincial assets in order to help delivery on the government's multi-year targets set out in the 2014 Budget. [14] The membership of the Advisory Council was made up of senior leaders in the public and private sectors comprised of: the former Group President and Chief Executive Officer of the TD Bank Group; the former President and CEO of the Canada Pension Plan Investment Board; the former Minister of Finance and CEO of the Toronto Financial Services Alliance; the President and CEO of Cineplex Entertainment; and a former MPP and Minister, and former President and CEO of the United Way, Toronto. [15] In addition, the work of the Advisory Council was supported by a dedicated project team in Cabinet Office. This project team provided direct support to the Chair of the Advisory Council and members of the Advisory Council as well as coordination and project management support for the Advisory Council's work with other government ministries and its government business enterprises. [16] The general functions and responsibilities of the Advisory Council were further described in the Terms of Reference. The Premier requested that the Advisory Council review and report on government asset optimization opportunities, including considering possible asset mergers, acquisitions and divestments. The initial mandate of the Advisory Council also included providing advice on possible changes to the corporate structure of government business enterprises, including private-public sector partnerships. The Advisory Council was also asked to provide advice to the Premier on any other matters related to maximizing the value of provincial assets. [17] The formal work of the Advisory Council commenced in April of 2014.
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