Summary: The Ministry of Finance (the ministry) received an access request under the Freedom of Information and Protection of Privacy Act (FIPPA) for non-public communications from the Insurance Bureau of Canada (IBC), as well as follow-up exchanges, meeting notes and agendas on automobile insurance topics. The ministry denied access to the records in full or in part, citing the mandatory Cabinet records exemption in section 12(1) and the discretionary advice or recommendations exemption in section 13(1). This order finds that the records are not exempt under these exemptions. Statutes Considered: Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as amended, sections 12(1) (introductory wording), 12(1)(b), and 13(1). Orders Considered: Orders PO-2495 and PO-3353.
[55] In support of its section 12(1)(b) claim, the ministry states that stakeholders, such as the IBC, prepare briefing notes, policy papers and draft legislation for the purpose of the ministry subsequently submitting those same recommendations and policy options to Cabinet.
[67] The ministry refers to Order PO-3365, where the IPC held that emails and reports arising from meetings and communications from an expert panel engaged by the Financial Services Commission of Ontario (FSCO) to advise on the Statutory Accident Benefits Schedule and an insurance regulation constituted advice or recommendations. It submits that similar to the advice provided by the panel in Order PO-3365, the volunteer advice coming from the IBC is invaluable expertise that assists the government in formulating and justifying its policies.
[72] The appellant states that the ministry is attempting to make the IBC either a consultant, a ready-made expert advisory panel or a very special expert group, “qualifying” the IBC records for the policy advice exemption. The appellant disputes the ministry’s claim that disclosure could result in the IBC, an automobile insurance lobby group, becoming less active in routinely making its views known to the ministry and government. He points out that the IBC itself dropped its appeal in this case, and no longer claims that the records are protected either under sections 13(1) and 17(1). [73] The appellant further states that not one of those IBC records has been identified as specifically marked as being “confidential”. He states: The key fact remains there is no evidence submitted that IBC was “retained” by the ministry. While paid commissioned consultants fall in the category along with public officials under section 13(1) offering policy advice, voluntary stakeholder groups do not…
To extend the section 13(1) exemption claim to IBC makes a mockery of Ontario’s democratic and conflict of interest system where stakeholder positions and views are not official policy advice within the government or paid by the government or the Minister or Premier for their positions and views. The ministry [forgets] that the IBC records are not their records and that IBC efforts are there to influence policies, not to be the records of government and the makers of policy and doers deciding on government implementation programs.