Case Summary and Outcome

The Nova Scotia Court of Appeal held that government records sought by the Respondent were subject to the confidentiality exception to the public’s right to access all government information because they revealed the substance of Nova Scotia Provincial Cabinet deliberations relating to ongoing programs. However, the Respondent was entitled to government records pertaining to closed or completed programs. In reaching its decision, the Court stated that the case was about striking a balance between a citizen’s right to know what government is doing and the government’s right to deliberate behind closed doors.

This case analysis was contributed by Right2Info.org.

Facts

The appellant Dan O’Connor sought detailed information from the Provincial Government of Nova Scotia related to a revision of certain government programs, including 86 government programs that had been discontinued. The government released certain information but withheld a portion, maintaining it was protected by Cabinet confidentiality.

Decision Overview

The Court held that the Nova Scotia Freedom of Information and Protection of Privacy Act (FOIPOP) in Section 5 establishes the right to access any record in the custody or under the control of a public body. FOIPOP Section 13(1), in turn, provides a Cabinet confidentiality exception, whereby “The head of a public body may refuse to disclose to an applicant information that would reveal the substance of deliberations of the Executive Council or any of its committees […]”. However, Section 13(2) lists a number of cases where the government cannot refuse to disclose on 13(1) grounds, which include those cases where a decision has been implemented or made public.

The Court determined that the issue was whether the information would reveal the “substance of [cabinet] deliberations…” The key word is “substance,” which the Court interpreted to mean the Cabinet’s actual deliberation process, but also information that would infer the substance of cabinet deliberations (in a tangential sense) such as “…advice [or] recommendations…prepared for submission to Cabinet or any of its committees…”.

In rendering its decision, the Court distinguished between the ongoing programs and those that had been closed. The 86 programs that had been closed fell within Section 13(2) and therefore the information had to be released with respect to them. As for the programs that were still in progress, the Court took the view that “it is not something upon which a final decision has been “implemented or made public”, and therefore these were not subject to disclosure. Finally, the Court noted that the government had not waived its Cabinet privilege with respect to these programs.