The Law and Democracy: The Example of Mandate Letters

INTRODUCTION

The Supreme Court of Canada recently decided in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) that the public is not entitled to see the mandate letters that the Premier of Ontario issued to his cabinet ministers in 2018. The SCC disagreed with the Ontario Information and Privacy Commissioner (IPC), the unanimous Ontario Divisional Court and the majority of the Court of Appeal for Ontario, all of whom concluded that the cabinet records exemption under the Ontario Freedom of Information and Protection of Privacy Act (FIPPA) did not apply to the letters.

In this post, I do not undertake a complete analysis of the SCC’s decision or those of the lower courts and of the IPC. Rather, I compare how the IPC and the judges view the nature of the mandate letters, how they fit into the process of policy-making and the application of FIPPA’s purpose.

A CBC journalist sought release of the mandate letters Premier Doug Ford had issued to his ministers in 2018. The Cabinet Office rejected the request, invoking section 12(1) of FIPPA. On appeal, the IPC ordered the letters released, the Divisional Court dismissed the government’s application for judicial review and the majority of the Court of Appeal dismissed the government’s appeal. The Supreme Court allowed the Attorney General’s appeal from the Court of Appeal’s decision.

(In fact, Global News published the 2018 letters in September of last year, having received them “from a source not authorized to release them”.)

Freedom of information and privacy (that is, cabinet confidentiality in this case) are both pillars of our democratic system of government. As the SCC explained,

Freedom of information (FOI) legislation strikes a balance between the public’s need to know and the confidentiality the executive requires to govern effectively. Both are crucial to the proper functioning of our democracy. This appeal concerns the balance between these two foundational principles. (SCC, para. 1)

In my view, the Supreme Court nudged the balance in the wrong direction.

Underlying the IPC’s analysis and conclusion is the view that the mandate letters would not reveal substantial cabinet discussions in the past or future. The Divisional Court and the majority of the Court of Appeal found the IPC’s interpretation reasonable. However, the dissent in the Court of Appeal considered it unreasonable and the SCC determined that its own interpretation of the application of FIPPA to the letters was the only reasonable one. (All adjudicators except Madam Justice Côté applied a reasonableness standard; Côté J. concurred in the result, but would have applied a correctness standard.)

The difference in conclusions about the publication of the mandate letters can be explained, I suggest, less by how the IPC and the judges assessed FIPPA than by how they view the “place” and “role” of the letters in the democratic process, as well as how they view the democratic process itself.

FIPPA: PROVISIONS AND ANALYSIS

The purpose of FIPPA and the treatment of exemptions are set out in section 1:

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(i) information should be available to the public,

(ii) necessary exemptions from the right of access should be limited and specific…. (my emphasis)

Section 12 of FIPPA provides the circumstances under which a cabinet record should not be disclosed:

12 (1) 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.

Accordingly, cabinet records are not automatically exempted by virtue of being cabinet records, but only “where the disclosure would reveal the substance of [cabinet] deliberations”. The list following the opening words identified cabinet records that must not be disclosed when they “would reveal the substance of [cabinet] deliberations”. However, because of the word “including”, there may be other records that are not listed and that are similar to those in the list that may also be excluded if they satisfy the opening words of section 12(1).

There was disagreement about how to interpret the relationship between the opening words of section 12(1) and the list.

The IPC focused on the opening words, since Cabinet Office relied on the opening words only, not claiming that the mandate letters fit any of the categories of records listed:

…[T]he opening words of section 12(1) are not intended to encompass the outcome of the deliberative process in the formulation of government policy – i.e., the policy initiatives themselves. Section 12(1) is designed to protect deliberative communications occurring within the process by which the policies of Cabinet or its committees (and by extension, in this case, the Premier) are formulated. (IPO, para. 104)

(Despite the Cabinet Office’s reliance on the opening words, the dissent in the Court of Appeal observed, “It is no stretch to apply [the] words [in ss. 12(1)(d) and (e)] to the mandate letters” (CA, dissent, para. 186).)

The IPC noted, “The use of the term ‘including” in the introductory wording of section 12(1) signifies that any record that would reveal the substance of deliberations of the Executive Council (Cabinet) or its committees, . . . qualifies for an exemption under section 12(1)” (IPO, para. 9). Even so, what appears to be a very broad exemption is somewhat narrowed, states the IPC, by the requirement that “the institution must provide sufficient evidence to establish a linkage between the content of the record and the actual substance of Cabinet deliberations” (IPO, para. 11).

The SCC’s dissatisfaction with the IPO rests in part on his exclusion of “outcomes” from section 12(1). This is not quite what the IPC did. He would exclude outcomes if they could be linked to a cabinet deliberation. As the Divisional Court said,

The characterization of something as an “outcome” should not be understood necessarily to mean that disclosure of the thing cannot be revelatory of the “substance of deliberations.” All the IPC concluded in this Decision, however, is that the “outcome” of the Premier’s Letters did not, as a matter of fact based on the evidence in this case, disclose the substance of any deliberations of the Premier or of Cabinet. (Divisional Ct, para. 25)

On this point, the SCC accepts that the IPC did not apply the requirement to link the record to actual deliberations test (SCC, majority, para. 54).

The adjudicators also viewed the mandate letters differently.

Importantly — crucially, in my view — the SCC sees the mandate letters as the beginning of the process: “The priorities communicated to ministers by the Premier at the outset of governance are the initiation of Cabinet’s deliberative process, and are subject to change.” (SCC, majority, para. 52)

The IPC quoted the CBC’s submission with approval: “‘The mandate letters are not presented to Ministers in order to kick off a debate about whether they should be adopted, or amended or rejected. They are orders – job descriptions if you like.'” (IPO, para. 79)

The IPC’s determination that the letters were the “end point” of consideration by the premier misses the point, in the SCC’s view, since “[d]isclosure of the Premier’s initial priorities, when compared against later announcements of government policy and what government actually accomplished, would reveal the substance of what happened during Cabinet’s deliberative process.” (SCC, majority, para. 53)

BALANCING CABINET CONFIDENTIALITY AND PUBLIC ACCESS TO INFORMATION

What really differentiates the SCC analysis from that of the IPC, the Divisional Court and the majority of the Court of Appeal is the SCC’s top-heavy emphasis on the importance of cabinet confidentiality, with little regard for the public’s right to information. This reflects the dissent in the Court of Appeal’s tour through the development of executive authority.

Thus the SCC writes,

…[The IPC] did not engage meaningfully with the legal and factual context against which s. 12(1) operates — in particular, constitutional conventions and traditions surrounding Cabinet confidentiality and Cabinet’s decision-making process, including the role of the Premier within that process. Cabinet confidentiality creates conditions necessary to ensure an effective government. The Commissioner did not consider a key rationale underlying the convention: promoting the efficiency of the collective decision-making process. His failure to grapple with the broader constitutional dimension of Cabinet confidentiality led him to an overly narrow interpretation of s. 12(1). He excluded “outcomes” of the deliberative process, without regard for the impact that premature disclosure of policy priorities at an early stage of the process may have on the efficient workings of government.” (SCC, majority, para. 7)

In particular, the IPC failed to consider two conventions: “the nature of the Cabinet decision-making process and the Premier’s role as head of Cabinet within that process” (SCC, majority, para. 45).

The SCC also maintains that the IPC did not appreciate or take sufficiently into account the connection between the premier and cabinet. Again, this is not quite accurate, as the SCC itself notes:

The IPC ostensibly recognized the role of the Premier in Cabinet’s decision-making process, citing past IPC precedent which recognized that “by virtue of the Premier’s unique role in setting the priorities and supervising the policy making, legislative and administrative agendas of Cabinet, the deliberations of the Premier . . . cannot be separated from the deliberations of the Cabinet as a whole”. (SCC, majority, para. 50 [citation omitted]

The SCC continued, “The communication of the Premier’s initial views to other members of Cabinet are part of Cabinet’s decision-making process, and will be revealing of the substance of Cabinet deliberations when compared against subsequent government action. This context is crucial.” (SCC, majority, para. 57) As the SCC notes, “cabinet deliberations” occur in a fluid way, not merely in the cabinet room, but also in informal and ad hoc conversations.

The SCC stated that cases about cabinet confidentiality, which plays a “key role in the proper functioning of our Westminster system of government” are important in relation to “the stability and legitimacy of our democracy”. “Cabinet confidentiality both enables the proper functioning of responsible government by promoting collective ministerial accountability to the legislature and affords the executive the operational space it needs to function effectively”. (SCC, majority, para. 60; citations omitted].

In short, in the SCC’s view,

… “[D]eliberations” understood purposively can include outcomes or decisions of Cabinet’s deliberative process, topics of deliberation, and priorities identified by the Premier, even if they do not ultimately result in government action. And decision makers should always be attentive to what even generally phrased records could reveal about those deliberations to a sophisticated reader when placed in the broader context. (SCC, majority, para. 62)

The Supreme Court placed more or less all of its eggs in the cabinet confidentiality basket. Put another way, it centred its analysis on the exemption clause rather than the presumption clause.

However, one of the principles of FIPPA is that “information should be available to the public” (emphasis added); we can call this the presumption underlying the Act. Another principles is that exemptions should be “necessary” and “limited and specific” (FIPPA, s.1). Section 12(1) falls under “Exemptions” and “Cabinet Records”. Not all cabinet records are to be disclosed, although the list under section 12(1) is extensive and broad. This reflects the importance of cabinet confidentiality in our system of government. All adjudicators involved in this case appreciate that cabinet confidentiality is a cornerstone of responsible government, permitting discussions that are open and possibly argumentative. But exemptions must be viewed in the context of the entire purpose of the legislation.

HOW DO MANDATE LETTERS FIT INTO ALL OF THIS?

Government policies or prospective policies will be revealed at different points in the political cycle. Political parties issue platforms meant to convince voters to support them. When a party successfully forms government, it releases a speech from the throne and a budget, both of which identify its priorities in some detail. In all cases, the public is encouraged to think that the policies, ideas and directions forming the platform, the speech from the throne and the budget (which may resemble each other to a great degree or not particularly) is what the government will do and how it will govern.

How do mandate letters fit into this process? The premiers of several provinces release mandate letters. I use Manitoba and Alberta as examples of how the release of mandate letters fit into the various ways governments announce their policies. There is no prescribed order.

With respect to the letters at issue in this case, the Progressive Conservative Party of Ontario released its election platform on May 30, 2018. The election was held on June 7th; the throne speech was on July 12th and Premier Ford issued his mandate letters that month. The budget speech did not take place until April 11, 2019.

Following the Ontario election on June 12, 2014, Premier Kathleen Wynne held the budget speech on June 14th (this was the same budget she had introduced that had resulted in the election). The throne speech was on July 3rd and she released letters publicly on September 25th.

The last Manitoba election was held on October 3, 2023; the NDP had released its platform on September 28th. The premier released mandate letters on different dates, October 26th, 30th and 31st, that is, before the throne speech on November 21st. The government will release its first budget in March 2024. The current Alberta premier also released her mandate letters at different times during July and early August, 2023 before the throne speech (October 30th 2023), following the election on May 29th and the budget will be released in February 2024.

The freedom of information and privacy legislation in Alberta and in Manitoba exempt cabinet documents on much the same basis as does Ontario’s legislation. Manitoba’s statute contains much the same list of specific exemptions as Ontario’s.

Cabinet Office asserted that mandate letters from other governments were high level, while those of the Ford government were detailed and directed at each minister (IPO, para. 49). Current mandate letters from other jurisdictions are actually similar to the 2018 Ford letters: general comments and specific instructions. (For one commentator’s cynical view of the value of the current Trudeau government’s mandate letters, at least, compared to mandate letters of years ago that were not public, see Eugene Lang, “Ministerial mandate letters: another nail in the coffin of cabinet government”.)

Those opposed to releasing mandate letters suggest, as does the dissent in the Court of Appeal, that requiring the release of the letters will have negative effects: “draft[ing] mandate letters for purely public consumption as others have done; t[ying] mandate letters even closely to the Cabinet decision-making; or giv[ing] up drafting mandate letters altogether.” (CA, dissent, para. 100) The reality in other jurisdictions does not appear to support these prognostications.

While mandate letters are prepared for ministers (and sometimes other government entities), they also provide a means by which the public can assess the government. This does not mean all the objectives will be met; there are many reasons why they might not be, including external factors, but the letters are the government’s own statements about what the government hopes to achieve. The public is entitled to know what the government hopes to achieve and to assess it on then government’s own statement of priorities. The public also has a right to know whether the premier’s instructions align with the government’s election promises, their public statement of intentions in the throne speech and how they are allocating taxes as revealed in the budget.

As the majority in the Court of Appeal observed, the IPC “recognized that s. 12(1) itself strikes a balance between a citizen’s right to know what government is doing and a government’s right to consider what it might do behind closed doors” (CA, majority, para. 82; emphasis in original).

CONCLUSION

Freedom of information and privacy legislation is meant to balance the public’s right to know about government activities and the ability of government to function effectively. Democracy can work only if the public has the knowledge required to make decisions about decision-makers and to assess their effectiveness, their ethics and their adherence to basic democratic and constitutional principles. And yes, democracy also means that government is able to function effectively, not immune from what is sometimes in the words quoted by the dissent in the Court of Appeal,

“[The premature disclosure of Cabinet confidences] would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind.” (CA, dissent, para. 164; citation omitted)

Not everyone believes that the public has a right to engage with government with respect to what the government says it will do. Cabinet Office cited the SCC that Cabinet confidentiality serves “to avoid ‘creat[ing] or fan[ning] ill-informed or captious public or political criticism’”. (IPO, para. 21, citing Babcock v. Canada (Attorney General) (dealing with disclosure under the Canada Evidence Act in the course of litigation), in turn citing Carey v. Ontario).

The Supreme Court’s concern that uninsulated “[s]pheres of confidentiality” are at risk from “‘undue external interference'” (SCC, majority, para. 60) does not consider that transparency might actually reveal whether the government’s announced intentions have been subverted by “undue external interference”.

One might conclude that the exemption of cabinet confidentiality outweighs the right of the public to information about government activity. But it is not reasonable to do so without giving proper consideration of the right of the public to know how well what the government says it will do accords with what it does. Public criticism, whether one agrees with it or not, is a fundamental element of a democratic system. And while much of government activity does need to remain secret, at least in the early stages, the public requires the knowledge to determine whether changes in government intentions raise concerns.

Governments eager to promise the public the moon when they are running for office and happy to explain their plans in the Throne speech once they are elected have an obligation when things get real and the premier gives his or her ministers their marching orders to be open about their actual intentions. Mandnate letters are more akin to the various ways governments disclose their plans than they are to the documents listed in section 12(1). Even if that is not the case, however, an analysis that fails to give proper weight to the presumption of freedom of information under FIPPA is not reassuring about the judicial commitment to democracy.