The appellant, a lawyer, filed a request for information with the Ministry of Finance, pursuant to the Ontario Freedom of Information and Protection of Privacy Act ("FIPPA"), to compel the disclosure of records relating to one of the Ministry's tax amendments, "including all records which provide the reasons for not deciding to make [certain provisions] retroactive."
Rothstein J upheld the Ministry's refusal to provided various internal drafts of a policy options paper. S. 13(1) of FIPPA makes disclosure optional where it would "reveal the advice or recommendations of a public servant." The purpose of s. 13(1) is to allow public servants to provide "candid and complete" advice on policy options (paras. 43-45). Therefore, the word "advice" must be construed broadly, to include any discussions by a public servant about the range of alternative policy options, as well as any considerations to take into account by the decision maker (paras. 46-47). For similar reasons, there is no requirement that the record be communicated or intended to be communicated for s. 13(1) to apply (para. 51).
(Paragraph 21(1)(a) of Canada's Access to Information Act similarly gives the government the option not to disclose records of "advice or recommendations.")