Privacy Around Mandate Letters

Political scientists yearn for the day when party policy has the most significant weight in democratic elections. Instead, snappy slogans and flash ideas usually are more effective at attracting the attention of the electorate.

Still, when a government is elected, they are required to implement ideas through policy. This is usually done in the form of mandate letters to cabinet ministers, which outlines the objectives they will work to accomplish, and the inherent challenges the minister is facing in this role.

In a free and open democracy, should the public have access to these mandate letters? On one hand, the common law has long protected the discussions and disclosures of cabinet members from disclosure on matters that are the subject of discussion at cabinet meetings. The public policy rationale is that the decision-making process would be unnecessarily impeded if the public could second-guess these decisions in real-time, while they are being made, and that statements would be made for optics purposes instead of pragmatic considerations if there was a public audience on all matters.

On the other hand, mandate letters are one of the most effective ways the public can hold government accountable. Talk is cheap, especially in politics, and the public’s memory following an election cycle can be short-lived. Reviewing a mandate letter over the course of a mandate can ensure in a democracy that a government is not governing by their own whims and desires, and instead is following a strategic approach towards governance that has clear objectives, and is taken steps to achieve those goals.

The federal government has attempted to especially champion this approach, public posting not only the mandate letters, but a tracking site to illustrate which commitments have been fully met, where progress has been made, and were no progress has been made at all. The information is presented in a graphic format for quick and easy comprehension, as well as in a detailed table format, for those who want to engage in their own analysis. Good governance in this conception encourages scrutiny by the public, and a thorough review of the work conducted on behalf of the electorate.

A little more challenging is the documents, memos, preparatory documents, agendas to meetings, locations and details of cabinet meetings, briefings to ministers, and draft legislation. These are often working documents that do not illustrate a government’s final position on an issue, and is part of the necessary exploratory process in legislative drafting. The Canada Evidence Act (CEA) creates a balance between the competing interests at stake, creating an absolute bar to the disclosure of “Cabinet Confidences” in s. 39(2), but allowing this disclosure after 20 years in s. 39(4)(a), or after only 4 years if a decision was not made public in s. 39(4)(b)(ii). In this way, interested parties such as the media can ensure that the public is properly appraised decisions made by government, either in public or in private.

In 2002, the Supreme Court of Canada discussed these provisions in Babcock v. Canada (Attorney General), stating,

18 The British democratic tradition which informs the Canadian tradition has long affirmed the confidentiality of what is said in the Cabinet room, and documents and papers prepared for Cabinet discussions. The reasons are obvious. Those charged with the heavy responsibility of making government decisions must be free to discuss all aspects of the problems that come before them and to express all manner of views, without fear that what they read, say or act on will later be subject to public scrutiny: see Singh v. Canada (Attorney General), 2000 CanLII 17100 (FCA), [2000] 3 F.C. 185 (C.A.), at paras. 21-22. If Cabinet members’ statements were subject to disclosure, Cabinet members might censor their words, consciously or unconsciously. They might shy away from stating unpopular positions, or from making comments that might be considered politically incorrect. The rationale for recognizing and protecting Cabinet confidences is well summarized by the views of Lord Salisbury in the Report of the Committee of Privy Counsellors on Ministerial Memoirs (January 1976), at p. 13:

A Cabinet discussion was not the occasion for the deliverance of considered judgements but an opportunity for the pursuit of practical conclusions. It could only be made completely effective for this purpose if the flow of suggestions which accompanied it attained the freedom and fulness which belong to private conversations — members must feel themselves untrammelled by any consideration of consistency with the past or self-justification in the future. . . . The first rule of Cabinet conduct, he used to declare, was that no member should ever “Hansardise” another, — ever compare his present contribution to the common fund of counsel with a previously expressed opinion. . . .

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.  In addition to ensuring candour in Cabinet discussions, this Court in Carey v. Ontario, 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637, at p. 659, recognized another important reason for protecting Cabinet documents, namely to avoid “creat[ing] or fan[ning] ill-informed or captious public or political criticism”. Thus, ministers undertake by oath as Privy Councillors to maintain the secrecy of Cabinet deliberations and the House of Commons and the courts respect the confidentiality of Cabinet decision-making.

19 At one time, the common law viewed Cabinet confidentiality as absolute. However, over time the common law has come to recognize that the public interest in Cabinet confidences must be balanced against the public interest in disclosure, to which it might sometimes be required to yield: see Carey, supra. Courts began to weigh the need to protect confidentiality in government against the public interest in disclosure, for example, preserving the integrity of the judicial system. It follows that there must be some way of determining that the information for which confidentiality is claimed truly relates to Cabinet deliberations and that it is properly withheld. At common law, the courts did this, applying a test that balanced the public interest in maintaining confidentiality against the public interest in disclosure: see Carey, supra.
[emphasis added]

The comparable provision in Ontario is the exemption for cabinet records under s. 12 of the Freedom of Information and Protection of Privacy Act (FIPPA), which allows for refusals for the substance of deliberations of the Executive Council or its committees. Disclosures under this provision are also made after the lapse of 20 years. However, like the provisions in the CEA, this applies to the documents related to mandate letters, and not the mandate letters themselves.

The 1980 report which created the foundation for FIPPA, the “Public Government for Private People: The Report of the Commission on Freedom of Information and Individual Privacy” (also known as the Williams Commission), explained the reasons for this as follows,

If Cabinet discussions were to become a matter of public record, individual ministers would be inhibited from expressing their frank opinions for fear of later being identified as dissidents. Moreover, if government policy were presented as a series of opposing views, the ability of members of the public and of the legislature to hold ministers responsible for government policy would be diminished.

In Ontario, the mandate letters of the provincial government have been made available in recent years. However, the very use of mandate letters at the provincial level is relatively new, first introduced in 2003. At that time, they were made public, from the very start. They were initially provided directly to reporters, and then in later years were released publicly. This trend stopped in 2018, when a new party was elected to office. It was an unusual trend, as most provinces across Canada have publicly released mandate letters.

The media also got accustomed to receiving these mandate letters, and since they were still being used in 2018, sought to have these provided under FIPPA. The government refused this, claiming s. 12(1) applied, and they appealed to the Information and Privacy Commissioner (IPC), who found that the exemption did not apply. The government sought judicial review of this decision at the Divisional Court, which found the decision to be reasonable. The Court of Appeal for Ontario heard a further appeal of this decision recently in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), dismissing the appeal.

The government attempted to rely upon the B.C. decision, looking at a slightly different provision, in Aquasource Ltd. v. British Columbia (Freedom of Information and Protection of Privacy Commissioner), which called for a wide interpretation of the body of information that cabinet considered or would consider. The statute in question focused more on the substance of deliberations, including documents submitted to the Executive Council. Because mandate letters were included in cabinet meetings, the government claimed that this broad interpretation would include them.

The appellant instead relied on O’Connor v. Nova Scotia, which instead shifted the focus to whether the disclosure would permit a reader to draw accurate inferences about cabinet deliberations. This is also the approach that has been followed in other jurisdictions, and the approach used by the IPC in other cases.

The IPC decision noted that the wording in FIPPA was not exhaustive, and could include documents that had never been placed before cabinet, if the disclosure would reveal the substance of deliberations. To make this case, the government would have to establish a sufficient linkage between the contents of the mandate letters, and the actual substance of cabinet deliberations. The Commissioner stated that the appropriate test should be whether the mandate letters would be likely to reveal accurate inferences about cabinet deliberations, on a balance of probabilities,

[108] In my view, if these central purposes of the Act are to be given effect, the correct interpretation of the exemption at section 12(1) – one that would protect Cabinet confidences and at the same time facilitate transparency and promote accountability – would not shield government policies that emerge at the conclusion of deliberations. In this way, to paraphrase the Nova Scotia Court of Appeal in O’Connor, section 12(1) strikes an appropriate balance between the public’s right to know what government is doing and government’s right to consider what it might do behind closed doors.

Because these letters do not reveal any views, opinions, thoughts, ideas and concerns of cabinet members, and were more like a job description for the respective ministers that mirrored political platforms, they did not provide insight into the substance of any specific deliberations that may have occurred.

The government was unable to provide any evidence of a chilling effect on cabinet deliberations from these disclosures. The fact that mandate letters are broadly disclosed across Canada weighed against a conclusion that this would be the effect of disclosure. Consequently, given that there was no mandatory exemption to the mandate letters, the Cabinet Office was ordered to disclose the records. The decision was further explained by the Commissioner in a press release,

Ontario’s freedom of information law is based on the principle that every individual has a right to access government information. This right exists to ensure the public has the information it needs to participate meaningfully in the democratic process, and that politicians and bureaucrats remain accountable to the public.

There are, understandably, some necessary exceptions to the law. Those exceptions, written into the Freedom of Information and Protection of Privacy Act as “exemptions,” are designed to strike a balance between Ontarians’ fundamental right to know and the privacy and safety of individuals. They are also meant to be limited and specific. Labour relations, solicitor-client, and certain law enforcement records are examples of information that may be exempt from disclosure. The law also allows (rightly so) for the Premier and his cabinet to engage in free discussion of sensitive issues, in private. As such, cabinet documents cannot be disclosed if they reveal the substance of deliberations of the Executive Council or its committees.
[emphasis added]

Although the government attempted to apply the rule of law exception on judicial review for a standard of correctness, the unanimous Divisional Court rejected this and applied a reasonableness standard. They also rejected that there was any fundamental error in the interpretation of FIPPA, and found that the government failed to meet the evidentiary burden at the IPC.

The majority at the Court of Appeal upheld this decision, finding that the IPC properly employed the O’Connor test,

[51] In the face of ambiguous wording, the obligation on an administrative decision-maker is to provide a reasoned explanation for the interpretation adopted that is alive to the text, context and purpose of the provision; Vavilov, at para. 120. The IPC has done this.

Justice Lauwers dissented on the court, finding that the mandate letters would qualify for an exemption under FIPPA. He also cited from the Williams Report, noting that the discussions there were broader than just the enumerated lists under the Act, and expressed significant concerns about disclosures of cabinet documents, and focused on the function of cabinet,

[127] I now look more closely at the role of Cabinet within the Westminster system. In functional terms, Cabinet is to be understood as “a forum, presided over by the Prime Minister, where Ministers meet to propose, debate and decide government policy and action.”[39] It is “the place where Ministers decide, as a group, how the executive power should be exercised.”[40]

[128] Several building blocks are essential for Cabinet to be able to function effectively as a political body nested in Parliament or in the Legislative Assembly. These building blocks are fostered and protected by constitutional conventions. I focus on three: candour, solidarity, and confidentiality. Necessary and tight links among these conventions make possible the proper functioning of our parliamentary system in which the risk of a vote of no-confidence is ever-present. This risk is particularly acute in minority governments but still exists in a majority, if only as a more remote possibility. The Prime Minister and Cabinet must accommodate Cabinet’s own internal tensions, occasionally balky bureaucrats, hear from caucus and secure caucus support, marshal sufficient support in the House (challenging in minority times), and attune the government’s program both to day-to-day contingencies and to past and future electoral commitments designed to secure re-election.

The request for the mandate letters preceded the pandemic, but the pandemic has certainly illustrated how candour, solidarity, and confidentiality would be necessary to deal with the complex and controversial issues facing cabinet during this time. The misinformation, widespread protests, civil agitation, and just general frustration by the public, all would be made even worse if the competing or incomplete information put before cabinet was made public before decisions could even be made.

But these are not the types of documents that were sought.

Mandate letters are much more benign, and should reflect the same priorities and contents found in other similar public documents such as party platforms, budgets, and other forms of communication that illustrate how a government is governing.

It may be possible that a new government may not have anticipated mandate letters being disclosed, and may have included information that was embarrassing or politically inconvenient to disclose. Any subsequent scrutiny or ridicule is also part of the political process, and there is an easy solution to that problem – issue a new mandate letter.

In fact, the provincial government has already done exactly this in 2021. The only problem is, they haven’t publicly released those mandate letters either. Based on this decision though, it’s likely that we can expect that they will be forthcoming.