1. Principles

The Canadian government is based on a Cabinet system. Consisting of ministers acting in the name of the Queen's Privy Council for Canada, Cabinet establishes the federal government's policies and priorities for the country. Cabinet ministers are collectively responsible for all actions taken by the Cabinet and must publicly support all Cabinet decisions. In order to reach final decisions, ministers must be able to express their views freely during the discussions held in Cabinet. To allow the exchange of views to be disclosed publicly would result in the erosion of the collective responsibility of ministers. As a result, the collective decision-making process has traditionally been protected by the rule of confidentiality, which upholds the principle of collective responsibility and enables ministers to engage in full and frank discussions necessary for the effective functioning of a Cabinet system. See footnote 1

The Supreme Court of Canada has recognized that Cabinet confidentiality is essential to good government. In the decision Babcock v. Canada (Attorney General), 2002 SCC 57 at paragraph 18, the Court explained the reasons for this: "The process of democratic governance works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly."

To preserve this rule of confidentiality, subsection 70(1) of the Privacy Act (the Act) provides that the Act does not apply to confidences of the Queen's Privy Council for Canada. For convenience, in the following material "confidences" will be used to refer to "confidences of the Queen's Privy Council for Canada".

2. Meaning of "Council"

Subsection 70(2) of the Privacy Act states that "Council" means the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, Cabinet and committees of Cabinet. Committees of Cabinet include standing committees, ad hoc committees and any other committee of ministers. In addition, meetings or discussions between ministers can result in the creation of records that are Cabinet confidences, providing that the discussions concern the making of government decisions or the formulation of government policy.

3. Types of documents

Cabinet confidences are defined in the Act as information contained in six types of documents described in paragraphs 70(1)(a) through 70(1)(f) of the Privacy Act. The six types of documents do not constitute an exhaustive list but rather provide a series of examples of records that are considered Cabinet confidences. The six types of records are described below.

(a) Memoranda

Paragraph 70(1)(a) excludes from the application of the Act any information contained in records the purpose of which is to present proposals or recommendations to Cabinet. This group of records includes but is not restricted to documents entitled "Memorandum to Cabinet". For example, submissions to the Treasury Board of Canada are records that present proposals or recommendations to Cabinet. The determining features are the purpose for which a record was prepared and its contents, not the title of the document.

Generally, a memorandum presenting proposals to Cabinet will be signed by the minister recommending the action proposed. However, this is not always so. Memoranda may be signed by the Secretary to the Cabinet or by a Secretary to a committee of Cabinet and still be a confidence.

Drafts of memoranda are also confidences. For instance, a draft memorandum that was created for the purpose of presenting proposals and recommendations to Cabinet but that was never actually presented to Cabinet remains a confidence. Equally, a memorandum in final form is a confidence even if it has not been presented to Cabinet.

A record that has been appended to a memorandum to Cabinet is not necessarily a confidence. The purpose of the record and where it is found are factors to consider when determining whether a record is a confidence, as explained in the following examples:

(b) Discussion papers

Paragraph 70(1)(b) excludes from the application of the Act any information contained in discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Cabinet for consideration by Cabinet in making decisions. In 1984, the Cabinet Papers System was changed and discussion papers ceased to be produced. The discussion paper provisions were no longer applied to Cabinet papers produced after that date. In the case Canada (Minister of Environment) v. Canada (Information Commissioner), 2003 FCA 68 (often referred to as the Ethyl case), the Federal Court of Appeal concluded that those parts of memoranda to Cabinet, or records used to brief ministers, which are the equivalent of what used to be found in discussion papers (e.g., background explanations, analysis of problems, policy options), whether they are found within or appended to a document, must be identified and treated in the same manner as if they appeared in a discussion paper. As a result, those parts of a document forming an organized body or corpus of words which, when considered on its own, comes under the definition of a discussion paper and falls within the exception found in paragraph 70(3)(b) must be severed from the documents and disclosed, subject to any applicable exemptions. (Additional information on paragraph 70(3)(b) is found in Section 4.)

Documents may also be mislabelled as discussion papers. When dealing with such documents, it is important to note that the title of the document is not determinative of the character of the document. For example, a document entitled "discussion paper", but containing recommendations or proposals to be presented to Cabinet is not a discussion paper for the purposes of section 70 of the Act, but rather a memorandum.

(c) Agenda and records of Cabinet deliberations or decisions

Paragraph 70(1)(c) excludes from the application of the Act any information contained in agenda of Cabinet and records recording the deliberations or decisions of Cabinet. This type of record relates to Cabinet and Cabinet committees meetings and includes agendas, minutes and records of decisions (e.g. decision letters of the Treasury Board of Canada). It should be noted that these records include drafts of these documents and informal notes taken by officials during Cabinet or Cabinet committee meetings.

A distinction must be made between the text of the formal Record of Decision and the substance of the Cabinet decision. The formal text of the Record of Decision always remains a confidence and is excluded from the application of the Act for a period of 20 years. The substance of a decision reached by Cabinet may be disclosed to the public as deemed appropriate by Cabinet or by a minister with the approval of Cabinet. For example, the Treasury Board of Canada may wish to reflect its decision in circulars and manuals. Making the substance of the decision public makes any related discussion papers subject to the application of the Act pursuant to paragraph 70(3)(b), as explained as explained in Section 4 below.

(d) Records of communications between ministers

Paragraph 70(1)(d) excludes from the application of the Act any information contained in records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy.

Such a record may take the form of a letter from one minister to another setting out the minister's opinions or decisions. Also, information in a record that contains notes taken during informal discussions between ministers would be excluded from the application of the Act, as would any information in a record prepared for the use of the minister in discussion with another minister or ministers.

Information in records of communications between ministers that were not used for or do not reflect discussions relating to the making of government decisions or the formulation of government policy do not fall under this category.

(e) Records to brief ministers

Paragraph 70(1)(e) excludes from the application of the Act any information contained in records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before Cabinet. This paragraph also excludes information in records the purpose of which is to brief ministers in relation to matters that are the subject of communications or discussions between ministers concerning the making of government decisions or the formulation of government policy.

The purpose of creating a record and its use are factors to consider in determining whether information in the record is excluded pursuant to paragraph 70(1)(e). For example, a formal Record of Decision directs a government department to develop policy recommendations for its minister on a particular subject. Departmental officials attend meetings for which agendas are prepared, notes are made of the proceedings and reports are developed to be the basis of subsequent discussions on the same subject. Although the ultimate purpose of the meetings and reports is to develop policy recommendations for the minister's use in his or her presentation to Cabinet, information in the records themselves is not a confidence. In this instance, the records were created for the use of officials while developing policy, not for the minister's use, and they are subject to the Act. However, if any of the information in these records provides a link to Cabinet – in other words, reflects the collective decision-making and policy formulation processes of ministers – that information is excluded under subsection 70(1). In the same view, the end product – information in the record used by the minister to make a presentation to Cabinet – is a Cabinet confidence.

(f) Draft legislation

Paragraph 70(1)(f) excludes any information contained in draft legislation from the application of the Act. This provision relates to any drafts of legislation proposed by the Government. It is not relevant whether the legislation was ever introduced into the House of Commons or the Senate or indeed seen by Cabinet, it still remains a Cabinet confidence.

Draft legislation includes draft Bills, draft regulations and draft Orders-in-Council. Information in draft legislation remains a confidence even after the final version is introduced in the House of Commons or the Senate. In the decision Quinn v. Canada (Prime Minister), 2011 FC 379, the Federal Court concluded that draft regulations examined by the Clerk of the Privy Council Office are excluded from the Act as such an examination is part of the regulatory process. Information in draft regulations and draft Orders-in-Council remains a confidence even after receiving approval by the Governor in Council and having been published.

4. Time limits

The operation of subsection 70(1) is subject to certain time limits set out in subsection 70(3) of the Privacy Act.

Pursuant to paragraph 70(3)(a), confidences that have been in existence for more than 20 years cannot be excluded under subsection 70(1) of the Act. After that time, information in the record becomes subject to the Act and may be released subject to any applicable exemptions.

Pursuant to paragraph 70(3)(b), discussion papers (under the Ethyl decision, portions of a document equivalent to discussion papers) are no longer excluded from the application of the Act if the decisions to which the discussion papers relate have been made public or, if the decisions have not been made public, four years have passed since the decisions were made. As a result, the Act will apply to information in these records, and unless an exemption applies, they will be disclosed in the event of a request under the Act. When no decision has been made, paragraph 70(3)(b) does not apply.

5. Procedures to be followed in the review of records subject to subsection 70(1)

Although the Act does not apply to Cabinet confidences, an individual's request for such a record must be answered. The response must make reference to section 70 of the Act and advise the requester of the right to complain to the Privacy Commissioner.

Review by departmental ATIP officials and officials with expertise in the subject area

Once the relevant records have been identified as being responsive to the privacy request, either officials in the Access to Information and Privacy (ATIP) Office or officials with subject area expertise or both review the records. If they consider that records or portions of records contain confidences, they should indicate which records or portion of records are involved and which subsection or paragraph under section 70 applies. For example, if portions of a record contain information presenting proposals or recommendations to Cabinet, the officer should flag those portions with the following notation: SEVER – 70(1)(a). When a record does not fall within any of the six types of documents listed in subsection 70(1) but nonetheless contains information revealing the collective decision-making and policy formulation processes of ministers, the officer should flag the excluded information with the following notation: SEVER – 70(1).

Consultations required

a) Consultations with the Department of Justice

ATIP offices within government institutions are required to consult with their departmental legal services unit (DLSU) in all instances where information that may qualify as a Cabinet confidence has been identified in response to a request under the Act.

Once the initial review process by the government institution has been completed, all records that may contain information constituting a confidence must be sent to the DLSU for review, including records that do not fall within the six types of documents listed in subsection 70(1) and contain information revealing the collective decision-making and policy formulation processes of ministers. When sending the records to the DLSU, an explanation should be given by the ATIP office indicating why the record or portion of the record should be excluded under section 70. This is particularly important for documents falling outside the formal Cabinet Papers System, but revealing or reflecting the collective decision-making and policy formulation processes of ministers (for example, overhead slides prepared for presentations to Cabinet, without reference to the presentation appearing on the paper copies of the slides).

All documents are returned to ATIP offices after the review is done. If further questions arise at a later date, the documents will have to be sent back to the DLSU.

DLSUs, in their role as legal advisor, will advise their clients whether, in their opinion, the Act's Cabinet confidence exclusion is applicable. DLSUs are also required to keep a list of all documents to which they have recommended that the Cabinet confidence exclusion should apply and to forward the list simultaneously to the Privy Council Office and the Information Law and Privacy Section at the Department of Justice Headquarters.

b) Consultations with the Privy Council Office

If there is any doubt as to whether information in a record is a Cabinet confidence in cases involving complex fact situations or when there is a disagreement between the DLSU and the ATIP Office about the nature of the information, Justice counsel must consult the Office of the Counsel to the Clerk of the Privy Council. In addition, consultations with the Privy Council Office are mandatory if documents contain discussion papers as per the Ethyl decision described in Section 3(b).

Review and consultation for discussion papers

Before consulting their DLSU and if they have concluded that there is, within or appended to a Cabinet document, the equivalent of a discussion paper ("corpus of words"), the purpose of which was to present background explanations, analyses of problems or policy options to Council for considerations by Council in making decisions (see paragraph 70(1)(b)), ATIP offices must follow these steps:

  1. If the discussion paper contains recommendations or references to other confidences (e.g., records of decision or draft legislation), bring this to the attention of Justice legal counsel.
  2. If a discussion paper is found within or appended to a memorandum to Cabinet or a record used to brief ministers, check to see if a decision has been made by Cabinet in relation to that Cabinet document by verifying the related record of decision.
  3. Confirm that the decision relates to the discussion paper in question (you may have to consult several records of decision) and refer to the relevant record of decision.
  4. If a decision has been made, determine if subparagraphs 70(3)(b)(i) or 70(3)(b)(ii) apply.
    1. Subparagraph 70(3)(b)(i): Decision has been made public.
      1. Check to see if the decision has been made public; for example:
        • Did the Minister make an announcement in the House of Commons? (Check Hansard.)
        • Is there a news release that provides evidence of the decision having been made public?
      2. Provide a copy of the news release or any other material that provides evidence of the decision having been made public.
    2. Subparagraph 70(3)(b)(ii): Decision was made more than four years ago.
      1. Check to see if four years have passed since the decision was made (not four years since the date of the discussion paper).

Upon being consulted by their clients, DLSUs must:

  1. Consider whether the records selected are discussion papers subject to paragraph 70(3)(b), and whether they meet the criteria of subparagraphs 70(3)(b)(i) or 70(3)(b)(ii);
  2. Seek confirmation from the Office of the Counsel to the Clerk of the Privy Council whether or not such records constitute discussion papers; and
  3. Inform their clients of the result of their consultation with the Privy Council Office.

Upon being informed of the result of the consultation with the Privy Council Office, ATIP offices must:

  1. Exclude the record if paragraph 70(1)(b) applies and the criteria set out in subparagraphs 70(3)(b)(i) or 70(3)(b)(ii) have not been met; or
  2. If the criteria set out in subparagraphs 70(3)(b)(i) or 70(3)(b)(ii) have been met, check to see if any exemption provisions apply to the record.

Severance

Whenever possible and after consulting with departmental legal counsel, the principle of severability should be adopted to separate, in a record that contains a cabinet confidence, any personal information requested under the Act that is not itself a Cabinet confidence. If the confidence can reasonably be severed from personal information, this should be done to allow the requested personal information to be subject to the Act.

No discretionary power

There is no discretionary power provided to an individual minister or government institution to make a Cabinet confidence accessible to the public.

6. Investigation of a complaint

In the event that a requester complains about the refusal of access to personal information, an investigator for the Office of the Privacy Commissioner of Canada may ask to see “any information recorded in any form under the control of a government institution” to which the applicant was refused access. As explicitly stated in subsection 34(2) of the Act, the investigator cannot have access to information in records or portions of records for which an exclusion under subsection 70(1) was claimed. Only records from which Cabinet confidences have already been severed can be made available to the Office of the Privacy Commissioner. The Office of the Privacy Commissioner may, however, request confirmation that records or parts of records are Cabinet confidences.

When a government institution receives a request for confirmation from the Privacy Commissioner, it must refer the request immediately to the ATIP Coordinator who will consult the departmental legal services unit (DLSU) to prepare the response. If there is any doubt concerning the preparation of the response, the DLSU may consult with the Office of the Counsel to the Clerk of the Privy Council.

The ATIP Coordinator must prepare and sign a confirmation letter using the model letter in Section 7, attaching a list that describes the contents of the records as indicated in the model list found in Section 8. The confirmation letter must be sent within the time frame set in the Privacy Commissioner’s request. If more time is needed, the head of the institution or the delegate should seek an extension from the Privacy Commissioner’s office.

A copy of the signed confirmation letter must be sent to the DLSU, at the same time as the letter is sent to the Privacy Commissioner.

7. Letter of confirmation

Our file: [insert file number]

[insert date]

The Privacy Commissioner of Canada
30 Victoria Street
Gatineau, Quebec
K1A 1H3

Dear [insert salutation]:

On [insert date of notice of complaint], [insert name of institution] was notified that a complaint concerning the application of section 70 of the Privacy Act ( the Act) had been filed in respect of request for access to personal information [insert request number]. I confirm that the document(s) or portion(s) thereof that is (are) the subject of request [insert request number] and is (are) described in the attached list is a (are) confidence(s) of the Queen’s Privy Council within the meaning of subsection 70(1) of the Act.

The attached list provides a detailed description of the document(s), without divulging confidences of the Queen’s Privy Council, and sets out our conclusion(s) for the document (each of the documents).

Sincerely,

[insert Coordinator’s name and title]

Enclosures

c.c. Institutional Legal Counsel

8. Model list prepared by the institution to be attached to the letter of confirmation

List of Documents Attached to
Letter from [insert Coordinator’s name]
Dated [insert date of letter]
File [insert file number]

Document # Description and Conclusion

1.
(pp. 22 – 240)

Submission the purpose of which is to present proposals and recommendations to Council
To: Treasury Board
From: The Minister of Public Safety
Date: January 17, 2013
Conclusion: Exclude

  • Pages 22 to 240 entirely 70(1)(a)

2.
(pp. 1-30)

Memorandum containing information the purpose of which is to present proposals and recommendations to Council
To: Cabinet
From: The Minister of Justice
Date: February 15, 2013
Conclusion: Sever

  • Page 1 to 25 entirely 70(1)(a)

3.
(pp. 20-21)

E-mail containing information about the contents of proposals and recommendations to Council
To: Director, Policy Sector
From: Deputy Director, Policy Sector
Re: Executive Summary
Date: March 23, 2013
Conclusion: Sever

  • Page 20, paragraph 4, 1st sentence entirely 70(1)(a)
  • Page 21 entirely 70(1)(a)

4.
(pp. 589)

Treasury Board letter recording a decision of Council
To: The Deputy Minister of Industry
From: The Secretary of the Treasury Board
Date: April 29, 2013
Conclusion: Exclude

  • Page 589 entirely 70(1)(c)

5.
(pp. 291-293)

Handwritten notes containing information about the contents of an agenda of Council
From: The Deputy Secretary to Cabinet
Date: May 4, 2013
Conclusion: Sever

  • Pages 293 entirely 70(1)(c)

6.
(pp. 12-21)

Letter reflecting communications between ministers of the Crown on a matter relating to the making of government decisions
To: The Minister of Industry
From: The President of the Treasury Board
Date: June 15, 2013
Conclusion: Exclude

  • Pages 12 to 21 entirely 70(1)(d)

7.
(pp. 21-25)

Memorandum containing information about the contents of a letter reflecting communications between ministers of the Crown on a matter relating to the making of government decisions
To: The Clerk of the Privy Council
From: The Deputy Minister, Natural Resources
Re: Green Project
Date: July 15, 2013
Conclusion: Sever

  • Page 22, paragraph 3, 4th and 5th sentences entirely 70(1)(d)

8.
(pp. 213-216)

Briefing note and attachments the purpose of which is to brief ministers of the Crown in relation to matters that are proposed to be brought before Council
To: The Minister of Justice
From: The Deputy Minister of Justice
Date: August 6, 2013
Conclusion: Exclude

  • Pages 213 to 216 entirely 70(1)(e)

9.
(pp. 1-2)

E-mail containing information about the contents of a record the purpose of which is to brief Ministers of the Crown in relations to matters that are the subject of communications between ministers on the formulation of government policy
To: The Deputy Director, Policy Sector
From: Senior Analyst, Policy Sector
Re: Green Project
Date: September 10, 2013
Conclusion: Sever

  • Page 1, Subject and 1st bullet entirely 70(1)(e)

10.
(pp. 1 – 27)

Draft Bill (or draft regulation), draft legislation
Date: October 10, 2013
Conclusion: Exclude

  • Pages 1 to 27 entirely 70(1)(f)

11.
(pp. 721-728)

Memorandum containing information about
the contents of draft
legislation
To: The Prime Minister
From: The Clerk of the Privy Council
Date: November 30, 2013
Conclusion: Exclude

  • Pages 721 to 728 entirely 70(1)(f)

12.
(pp. 126-153)

Letter and attachment
To: The Minister
From: The Deputy Minister
Date: December 30, 2013
Conclusion: Not a Confidence

9. Review by the Federal Court

Once the Privacy Commissioner has completed his or her investigation and issued his or her report in respect of a complaint relating to the application of section 70 of the Act, the requester or the Privacy Commissioner, with the consent of the requester, may apply to the Federal Court for a review of the decision to exclude the records in question. Both the Federal Court and the Federal Court of Appeal have agreed in separate judgments that decisions to exclude records requested under the Access to Information Act based on section 69 (which in relevant respects is equivalent to section 70 of the Privacy Act) could be judicially reviewed and that the proper standard of review was the correctness standard. See footnote 2 In both instances, however, the Courts concluded that to conduct a judicial review, they cannot have access to the documents that are the object of the dispute and that the government institution claims are Cabinet confidences. The Court stated that it could, however, use extrinsic evidence to determine if section 69 of the Access to Information Act had been correctly applied.

Also, in Quinn v. Canada (Prime Minister), the Federal Court held that the authority to refuse the disclosure of a Cabinet confidence requested under the Access to Information Act flows directly from the requirements of the Act. The Court also held that there is no need for a separate certification process under section 39 of the Canada Evidence Act in proceedings where the application of the Cabinet confidences exclusion is challenged. See footnote 3

Footnotes

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