OVERVIEW

Section 12 contains two exceptions to the general right of access established by section 4 (Information rights) of the Act. The first exception is a mandatory exception relating to public bodies and is contained in subsection 12(1). The second exception is a discretionary exception relating to local public bodies and is contained in subsection 12(3).

SECTION REFERENCE

12	(1)	The head of a public body must refuse to disclose to an applicant information that would reveal the substance of deliberations of the Executive Council or any of its committees, including any advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Executive Council or any of its committees.
	(2)	Subsection (1) does not apply to
		(a)	information in a record that has been in existence for 15 or more years,
		(b)	information in a record of a decision made by the Executive Council or any of its committees on an appeal under an Act, or
		(c)	information in a record the purpose of which is to present background explanations or analysis to the Executive Council or any of its committees for its consideration in making a decision if
			(i)	the decision has been made public,
			(ii)	the decision has been implemented, or
			(iii)	5 or more years have passed since the decision was made or considered.
	(3)	The head of a local public body may refuse to disclose to an applicant information that would reveal
		(a)	a draft of a resolution, bylaw or other legal instrument by which the local public body acts or a draft of a private Bill, or
		(b)	the substance of deliberations of a meeting of its elected officials or of its governing body or a committee of its governing body, if an Act or a regulation under this Act authorizes the holding of that meeting in the absence of the public.
	(4)	Subsection (3) does not apply if
		(a)	the draft of the resolution, bylaw, other legal instrument or private Bill or the subject matter of the deliberations has been considered in a meeting open to the public,  or
		(b)	the information referred to in that subsection is in a record that has been in existence for 15 or more years.

SUMMARY - SECTION 12(1) and (2) - CABINET CONFIDENCES

Subsection 12(1) is intended to prevent the harm to government that is presumed to occur if the substance of deliberations is revealed before or too soon after the issues were considered or revealed prior to being ready for public review. Premature disclosure of Cabinet deliberations inhibits the ability of Cabinet members to debate issues openly and freely, thereby reducing the effectiveness of Cabinet’s decision making role.

Subsection 12(1) provides a mandatory exception to the general right of access established by section 4 of the Act. Subsection 12(1) applies to all records in the custody or under the control of public bodies as defined in the Act. The exception does not apply to records that have been in existence for 15 or more years, or to records of a decision made by Cabinet or one of its committees on an appeal under an Act.

Subsection 12(1) also does not apply where the information in question was prepared to provide background explanations or analysis to Cabinet, or one of its committees, for its consideration in making a decision, if the decision has been made public or implemented, or 5 or more years have passed since the decision was made or considered.

Section 12 and the Existing Parliamentary Convention

A number of parliamentary conventions govern British Columbia's Cabinet. For example, the convention of collective ministerial responsibility means the Legislature and the public can hold the entire government accountable for its actions. In practice, all members of Cabinet are expected to publicly support government decisions, actions and policies. Further, Cabinet discussions and deliberations prior to a final decision have traditionally been kept confidential to permit full and frank discussions within Cabinet and to avoid breaking the position of unity once a decision has been made.

Subsection 12(1), the Cabinet confidences exception, should be interpreted in a manner consistent with preservation of the existing parliamentary convention.

POLICY - SECTION 12(1) and (2) - CABINET CONFIDENCES

1. Public bodies must consult with the Office of the Deputy Minister to the Premier in regards to information that must be excepted from disclosure under subsection 12(1). The public body must obtain sign off from the Office of the Deputy Minister to the Premier before the head of the public body makes the final determination on the response to the request.

PROCEDURE - SECTION 12(1) and (2) - CABINET CONFIDENCES

1. Determine the age of the record. See Calculation of time. If the record has been in existence for 15 or more years, this exception does not apply, and the record must be released unless another exception applies.
   
   

2. Preliminary Examination
   
   

3. Notify the Director of Information and Privacy, Office of the Deputy Minister to the Premier (the Director of Information and Privacy, Ministry of Finance that a request has been received for which the release of records may reveal Cabinet confidences pursuant to section 12(1). Note: All decisions related to applying section 12 to any record must be made in consultation with the Office of the Deputy Minister to the Premier.
   
   

4. Line by Line Review
   
   Identify information that may be severed under other exceptions.
   
   

5. Undertake formal consultation with the Office of the Deputy Minister to the Premier.
   
   

6. As a consequence of the formal consultations, it is normal to extend the time limit for responding by 30 days in accordance with section 10.
   
   

7. Severance
   
   The public body should forward any records that may be related to section 12(1) to the DMIP responsible for the Office of the Deputy Minister to the Premier for review and confirmation of section 12 information. The Office of the Deputy Minister to the Premier will highlight, in pink/red, those sections of the records relevant to section 12 and return the highlighted version to the public body for formal sign-off by the head.

INTERPRETATION - SECTION 12(1) and (2) - CABINET CONFIDENCES

The following are things to consider when determining if subsection 12(1) might apply:

1. Is the record/information in the Cabinet stream; e.g., submitted or prepared for submission to Cabinet or any of its committees? Consult with the Office of the Deputy Minister to the Premier.
   
   
2. Is the information one of the types listed in subsection 12(1) as information presumed to reveal the substance of deliberations, such as:

• advice - a suggested course of action?

• a recommendation - favoured or preferred course of action?

• a policy consideration - issues to be considered before a decision can be reached? or

• draft legislation or regulations?

3. If the information is one of the types of information listed in #2, would disclosure reveal the substance of deliberations of Cabinet or any of its committees; i.e., would disclosure reveal details of the issues under discussion? Advice or recommendations must reveal the details of issues under discussion by Cabinet to be withheld under subsection 12(1).  
   
   
4. If there is any other information that would reveal details of the issues under discussion, then it must be severed under subsection 12(1). The list in #2 is not exhaustive. For example, policy options, discussion of alternate courses of action, discussion of government policy may reveal the substance of deliberations.
   
   Subsection 12(1) does not apply to paragraphs 12(2)(a)-(c).

Must refuse to disclose

Information

The information that is excepted from disclosure may be a short reference in a record.

Example:

• An applicant requests a copy of a letter from a deputy minister to the ministry's assistant deputy ministers. The letter contains routine matters, except for a single sentence that says Treasury Board (a Cabinet committee) will be considering whether a planned program must be cancelled. The information contained in that one sentence must be severed because it would reveal the substance of deliberations of a Cabinet committee. The applicant would receive the remainder of the record (unless other exceptions apply).

"That would reveal"  

"Reveal"

Example:  information revealed explicitly

• A note from the Secretary to the Executive Council to a minister, copy to a deputy minister, that informs the minister of the discussions that Cabinet had on a particular issue. This information, in itself, reveals the substance of Cabinet deliberations.

Example:   information revealed implicitly

• A letter from the Secretary to a Cabinet committee to a well-known expert on labour law, asking him if he would be available to attend a sitting of a Cabinet committee, on a particular date at a given time, and answer questions on a pressing issue. This information, by itself, does not reveal the substance of Cabinet deliberations. However, combined with media reports of Cabinet needing to deal with a particular labour issue, the release of this information would implicitly reveal the substance of Cabinet deliberations - it is reasonable to assume that someone could infer that Cabinet will consider the issue at a particular time.

"Substance"

"Deliberation"

The following are a few of the types of records that would reveal the substance of deliberations of Cabinet or a Cabinet committee:

Examples:

• An agenda, minute or other record that documents the matters addressed by Cabinet (e.g., a list of issues tabled at Cabinet that reflects the priorities of Cabinet).
  
  

• A letter from Cabinet or a Cabinet committee that relates to the discussion or consideration of an issue or problem, or that reflects a decision made but not made public (e.g., a letter from Treasury Board to a ministry executive stating a decision that affects the ministry's budget but which has not been announced). Note: this is an instance where a record not placed before Cabinet or one of its committees would reveal the substance of deliberations.
  
  

• A briefing note placed before Cabinet or one of its committees.
  
  

• A memo from a deputy minister to the assistant deputy ministers in a ministry that informs them when Cabinet will consider an issue.
  
  

• A briefing note from a deputy minister to a minister concerning a matter that will be/is being considered by Cabinet.
  
  

• A draft or final Cabinet submission.

Executive Council or any of its committees

The "Executive Council" is commonly known as the Cabinet.

This phrase refers to a group of ministers, acting collectively. The scope of subsection 12(1) does not extend to the individual minister level, unless the individual minister is acting as a Cabinet committee.

A committee of the Executive Council, also known as a Cabinet committee, includes one or more Cabinet ministers. The committee exercises some or all of the powers of Cabinet as a whole, or develops and provides recommendations to Cabinet. Also included in the definition is an entity or individual to which the Executive Council or any of its committees has delegated decision-making authority on their behalf.

Included in the definition of Executive Council committees are all Cabinet Caucus Committees.

The existing Cabinet committees include:

• all Cabinet Caucus Committees;

• Cabinet/Caucus Committee on Legislation;

• Treasury Board;

• Planning Board;

• Cabinet Committee on Crown Corporations;

• Environment and Land Use Committee;

• First Nations Issues Working Group;

• Social Development Working Group;

• Forestry Working Group;

• Green Economy Working Group;

• Cabinet Committee on Collective Bargaining; and,

• Cabinet Committee on Regulations and Orders-in-Council

Including

The use of "including" means that the list of information that follows ("advice, recommendations, policy considerations or draft legislation or regulations") is incomplete. These are examples of types of information that would be presumed to reveal the substance of Cabinet deliberations.

Advice, recommendations

"Advice"

"Recommendations"

For the purposes of the Act, "advice, recommendations" refers to the submission of a suggested course of action that will ultimately be accepted or rejected by its recipient during a deliberative process.

Example:

• A deputy minister's letter to a minister that includes advice on a particular issue to be discussed at Cabinet.

"Policy considerations" means any information in the record that flags issues or other factors which Cabinet or one of its committees should consider when determining government policy.

Examples:

• In a situation where Cabinet is considering making a decision that will affect the forest industry, the fact that the European Economic Community is also considering actions that might affect British Columbia's forest industry may be a consideration that will affect policy.
  
  

• In a situation where Cabinet is considering raising the minimum wage, the projected implications on employment levels in the service sector may be assessed. This would be a policy consideration.
  

Draft legislation or regulations

"Legislation" means Act, as defined in the Interpretation Act.

"Regulations" means instruments enacted under the authority of an Act or by or under the authority of the Lieutenant Governor in Council (Cabinet), as defined in the Interpretation Act.

"Draft" means that the Act in question has not yet been introduced in the Legislative Assembly, or the regulation has not been approved by Cabinet, as the case may be.

This applies to entire draft Acts or regulations and to individual sections or phrases that are part of a draft Act or regulation. 

This wording covers draft legislation at all stages of its development - from initial Request for Legislation to the finalized legislation, drafted by Legislative Counsel and awaiting introduction in the Legislative Assembly. After First Reading, the draft legislation is considered a Bill, and is not covered under this exception.

Example:

• A Cabinet decision is made to enact legislation that would prohibit smoking in all public places. The Ministry of Attorney General is asked to research the impacts, social benefits and costs of the proposal, and to draft the legislation. All records generated by the ministry in the course of initiating the legislation, including the request for legislation, research, analysis reports, legislative drafts and all directly related documentation, would be covered by this subsection.
  
  Once the final draft has passed First Reading in the Legislative Assembly, it becomes a Bill, and is subject to public scrutiny. The new Bill and any amendments or changes to it that are passed in the Legislative Assembly are a matter of public record. The drafts and associated working materials described above, however, are not matters of public record, and remain covered by this subsection.
  
  This exception to disclosure does not cover background factual material produced or assembled in support of the draft legislation once the final draft legislation has passed First Reading, or a Cabinet decision has been made public not to proceed with it (subsection 12(2)(c)).

"Submitted or prepared for submission" means that the information went before Cabinet or its committees or that it was incorporated into a Cabinet submission or used as the basis for developing a Cabinet submission.

Information that is reasonably expected to be placed before Cabinet or its committees also qualifies as "submitted or prepared for submission", although it may not yet have been placed before Cabinet or its committees.

Example:

• A briefing note that could possibly be incorporated into a Cabinet submission at some later date does not qualify as "submitted or prepared for submission".

Interpretation 12(2)

Subsection (1) does not apply to

This phrase means that any records falling within the following list [paragraphs 12(2)(a) through (c)] are not covered by this exception, and must be released to applicants, unless another of the Act's exceptions applies.

Example:

• An attachment to a Cabinet submission may contain names of individuals that are not excepted under section 12, but might be excepted to protect the privacy of an individual under section 22 of the Act.

Interpretation 12(2)(a):

"That has been in existence for 15 or more years"

The Cabinet confidences exception only applies to records, or portions of records, that have been in existence less than 15 years.

See "Calculation of Time"

Examples:

• If a record was created on June 1, 1985, it would be 15 years old on June 1, 2000.
  
  

• Information relating to a sensitive issue, contained within a Cabinet submission, marked strictly confidential, and 15 years and 1 day old, would be released (unless other exceptions, such as the third party business exception, applied). 

Interpretation 12(2)(b)

Decision made by the Executive Council or any of its committees on an appeal under an Act

Where Cabinet or a Cabinet committee functions as a final appellate body under an Act and makes a decision, the decision and any recorded reasons for the decision are available to the public. The Cabinet confidences exception does not apply here.

Other portions of the record covered by this exception (such as advice or recommendations used by Cabinet to make a decision in this capacity) would not be affected by paragraph 12(2)(b).

Example:

• Pursuant to the Agricultural Land Commission Act, a landowner is granted leave to appeal a decision of the Agricultural Land Commission, which refused his application to remove his land from the Agricultural Land Reserve. The Environment and Land Use Committee (a Cabinet committee) hears the appeal and decides not to overturn the decision of the Commission. The committee's decision and reasons for decision must be disclosed, unless another exception applies.

Interpretation 12(2)(c)

"Purpose"

 Background explanations or analysis

"Background" means explanatory or contributory information or circumstances [OED] which provides background to the Cabinet deliberations. The attachments to a Cabinet submission usually perform this function.

"Explanations" means to make clear or intelligible with detailed information; to make one's meaning clear [OED].

"Analysis" means a statement of a detailed examination of the elements or structure of a scenario, issue, problem, or sequence of events.

The phrase "background explanations or analysis" does not include information that would reveal the substance of deliberations of Cabinet or its committees, referred to in subsection 12(1). A summary of the background attachments in the body of the Cabinet submission which outlines the key implications that should guide Cabinet decision-making is the substance of deliberations. 

Examples:

The following information falls within the definition of "background explanation or analysis": 

• An attachment to a Cabinet submission that illustrates and analyzes the economic situation that led up to the purpose of the submission: to decide whether stumpage fees should be raised in the forest industry. 
  
  

• An attachment to a Request for Legislation that provides background information and analysis of the approach taken to the legislative issue in other jurisdictions. 

Decision has been made public 

If Cabinet or one of its committees has made a "decision" on an issue or problem, or chosen a course of conduct that government will follow, and it "has been made public", the background explanations or analysis do not fall under the Cabinet confidences exception. 

"Made public" means that the decision has been communicated to the public by a minister or other authorized person (e.g., communications director).

Examples:

• a formal press conference;

• a statement by a minister or senior ministry executive;

• a statement by a minister during Question Period in the Legislative Assembly; and

• a letter from a minister to a newspaper.

Decision has been implemented 

"Implemented" means the point in time when implementation of, or acting upon, the Cabinet decision begins.

Example:

• Treasury Board has made a decision to cut spending in a particular program. No public announcement has been made. At the point in time when the spending cut has been communicated to the ministry officials and the ministry begins making the budget cuts to the program, the background explanations or analysis used by Treasury Board to make its decision will not be covered by this exception. 

Note that after a Cabinet decision is implemented, another exception may apply. 

Example:

• A decision is implemented in the fall to change taxes in the spring budget, but the tax change is not publicly announced. This information would be excepted from disclosure until the spring under section 17 of the Act. 

5 or more years have passed since the decision was made or considered 

See "Calculation of Time"