OVERVIEW

Section 13 is a discretionary exception to the right of access to information that would reveal advice or recommendations developed by or for a public body or a minister.

SECTION REFERENCE

13	(1)	The head of a public body may refuse to disclose to an applicant information that would reveal advice or recommendations developed by or for a public body or a minister.
	(2)	The head of a public body must not refuse to disclose under subsection (1)
		(a)	any factual material,
		(b)	a public opinion poll,
		(c)	a statistical survey,
		(d)	an appraisal,
		(e)	an economic forecast,
		(f)	an environmental impact statement or similar information,
		(g)	a final report or final audit on the performance or efficiency of a public body or on any of its programs or policies,
		(h)	a consumer test report or a report of a test carried out on a product to test equipment of the public body,
		(i)	a feasibility or technical study, including a cost estimate, relating to a policy or project of the public body,
		(j)	a report on the results of field research undertaken before a policy proposal is formulated,
		(k)	a report of a task force, committee, council or similar body that has been established to consider any matter and make reports or recommendations to a public body,
		(l)	a plan or proposal to establish a new program or to change a program, if the plan or proposal has been approved or rejected by the head of the public body,
		(m)	information that the head of the public body has cited publicly as the basis for making a decision or formulating a policy, or
		(n)	a decision, including reasons, that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of the applicant.
	(3)	Subsection (1) does not apply to information in a record that has been in existence for 10 or more years.

SUMMARY

Section 13 gives the head discretion to refuse to disclose advice or recommendations prepared by or for a minister or a public body.

Section 13 does not apply to records which have been in existence for 10 or more years. Also, the head cannot refuse to disclose information under this exception that falls within the list provided in paragraphs 13(2)(a) to (n) above.

If a public body determines a record is included in subsection 13(2), the record cannot be excepted from disclosure under subsection 13(1). However, the public body reviews the record to determine if another exception applies.

Although section 13 does not require the head of the public body to consider potential harm in making a decision whether to withhold records, potential harm can be a factor in considering the use of section 13.

Section 13 is intended to allow full and frank discussion of policy issues within the public service, preventing the harm which would occur if the deliberative process were subject to excessive scrutiny, while allowing information to be released which would not cause real harm.

POLICY

1. Section 13 may be applied by public bodies in circumstances where the withholding of a record will protect the open and frank discussion of policy issues within the public service. In exercising discretion under section 13, public bodies are encouraged to consider the release of advice and recommendations which have been approved and announced, or implemented.
   
   

2. Background methodology, data, analysis, questions, and factual information of all reports, studies or information in the scope of section 13(2) must not be withheld under section 13(1).
   
   

3. Advice and recommendations developed by or for a public body or a minister, and related to but prepared separately from any of the reports mentioned in section 13(2), would be covered by section 13(1). This includes advice or recommendations in briefing, decision or discussion notes, or any subsequent reports.
   
   

4. In some cases, a public body cannot confirm if an audit report is, or is intended to be, the final finished copy. In these cases, the public body is to consider the last available draft to be the audit report, regardless of the reason for not completing the audit process.
   
   

5. A public body may not apply section 13(1) to a record if 10 years have passed since the date the record was created.

PROCEDURE  

1. Determine the age of the record. If the record has been in existence for 10 or more years, then section 13 does not apply. See Calculation of Time.
   
   

2. Preliminary Examination
   
   

3. Identify types of information or classes of records included in 13(2) and which, therefore, cannot be withheld under 13(1).
   
   

4. Line by line review
   
   

5. Exercise of discretion
   
   

6. Severance
   
   Factual material (13(2)(a)) may be severed if it forms an intrinsic part of the advice and recommendations and a reasonable separation cannot be made.
   
   For the following records, the advice and recommendations may, most likely, be severed from the other information because they were developed as a result of the document and not as part of the document:

• public opinion poll (13(2)(b));
• statistical survey (13(2)(c));
• appraisal (13(2)(d));
• economic forecast (13(2)(e));
• environmental impact statement (13(2)(f)); and,
• report on the results of field research (13(2)(j)).

For the following records, the advice or recommendations revealed within the report cannot be severed from the rest of the information because the advice and recommendations were created at the same time to form an integral part of the report:

• final report or final audit (13(2)(g));
• consumer test report (13(2)(h));
• feasibility or technical study (13(2)(i));
• report of a task force, committee, council or similar body (13(2)(k)); and,
• plan or proposal to establish a new program or to change a program (13(2)(l)).

The following information cannot be severed even if it is part of the advice or recommendations:

• information the head of a public body has cited publicly as the basis for making a decision or formulating a policy (13(2)(m)); and,
  
  
• a decision, including reasons, that is made in the exercise of a discretionary power or an adjudicative function and that affects the right of the applicant (13(2)(n)).
  

INTERPRETATION  

Interpretation 13(1):

"Developed by or for" means the advice or recommendations must have been created either 1) within the public body, or 2) outside the public body but for the public body and at its request.

Section 13 includes information created or submitted by a consultant or other contractor to the public body, as well as information created by employees of the public body.

Consider applying section 13(1) if:

• the language in the document refers to a suggested course of action or a plan that has not as yet been implemented;
  
  
• the language uses words and/or phrases such as: It is proposed that…; The public body should…; It is recommended that…; It is advisable that…; One option is to…; It would be beneficial to…; The public body may want to…; It has been suggested that…; If the public body were to consider…; etc.;
  
  
• any of the options reveal what the recommendation is likely to be (e.g., the pros and cons, or the manner in which they are discussed, lead the reader to choose a specific option);
  
  
• the language reflects or impacts the mandate of the public body and public body operations in some way; or,
  
  
• the language discusses the effect or impact of a particular decision.

Examples:

The following would reveal advice or recommendations:

• the recommendations portion of a briefing note prepared for a minister or ministry executive;
  
  
• a portion of text in a report prepared for a public body which provides suggested wording for regulations; and
  
  
• a draft letter prepared for a minister.

Advice or recommendations developed in briefing notes, decision notes, or any subsequent reports, for example, would be covered under subsection 13(1) and may be severed.

Interpretation 13(2)(a):

"Factual material" means a cohesive body of facts which are separated in some manner from advice or recommendations. It does not refer to isolated statements of fact. Factual material refers specifically to information that cannot be withheld under section 13(1) and which must be severed from advice or recommendations if those are being withheld. Where factual information is intertwined with advice or recommendations in a manner whereby no reasonable separation can be made, then the information is not factual for the purposes of paragraph 13(2)(a).

Factual material is not limited to information that has been confirmed or accepted as accurate by the public body.

Examples:

• A draft of an audit report includes an evaluation of management practices. The author's assessment of the public body is based on factual material regardless of whether the public body agrees with the assessment. The author's recommendations may be excepted under section 13(1), but the background facts upon which the recommendations are made cannot be withheld under this section. Other exceptions, however, may apply.
  
  

• The recommendations portion of a minister's briefing note contains factual information. This factual information may be withheld under section 13(1) if it cannot be separated from the recommendations.
  

Other exceptions may apply to the factual material.

Interpretation 13(2)(b):

A "public opinion poll" is a survey which collects the opinions of a sample of the public on issues, and which usually contains statistical analysis on the results of that poll. The purpose of such polls generally is to extrapolate the information so that there is an indication of the opinion of a wider segment of the population.

Example:

• A survey commissioned by a public body to ascertain the public's views with respect to a proposed new dam is a public opinion poll, and cannot be severed under section 13(1). However, other exceptions may apply.
  

The statistical data, survey methodology, questions and survey analysis of public opinion polls must not be withheld under this exception.

Other exceptions may apply to the polling information.

The following are other examples of records that could be considered to be within the definition of "public opinion polls":

"Consumer and Commercial Research Surveys" includes surveys of consumers, producers or commercial operators for the purpose of improving market opportunities, consumer and client services.

"Public Opinion Focus Group Reports" are the reports of guided discussions on a topic of concern to the public. The discussions take place between a restricted group of participants selected according to pre-determined methodological criteria. The groups are guided by a moderator according to a guide developed for the occasion. The results cannot be extrapolated to a wider segment of the population.

"Consumer and Commercial Focus Group Reports" are the reports of guided discussions on a topic which serve the purpose of improving market opportunities and/or consumer and client services. The discussions take place between a restricted group of participants selected according to pre-determined methodological criteria. The groups are guided by a moderator according to a guide developed for the occasion. The results cannot be extrapolated to a wider segment of the population.

Interpretation 13(2)(c):

"Statistical Survey" refers to a specific study of a condition, situation or program, by means of data collection and analysis.

Examples:

• A municipality annually surveys its residents to determine their level of satisfaction with the type and quality of services being provided by the municipality. It uses this data for making budgetary decisions and for long-range planning. The survey results may not be withheld under section 13(1); however, any advice or recommendations based on the results may be withheld.
  
  

• A public body produces a statistical survey which analyzes mortality rates in automobile accidents in the Greater Vancouver area for a specific time period. Advice, based on the survey results, is sent to the public body’s head office. The survey methodology and data, questions and survey analysis would be released, unless another exception applies.

The statistical data, survey methodology, questions and survey analysis of statistical surveys must not be withheld under this exception.

Other exceptions may apply to the survey results.

Interpretation 13(2)(d):

"Appraise" means to estimate the value or quality of; to set a price on; to value.

"Appraisal" is the act, or an instance, of appraising [OED].

In the context of this Act, an appraisal is a report or other record, including facts, findings, and conclusions.

Examples:

• An appraisal report on the value of a computer system owned by a public body may not be withheld under section 13(1).
  
  

• An appraisal report prepared for a public body by a private consultant to value its real estate holdings may not be withheld under section 13(1).

The appraisal methodology, data and analysis must not be withheld under this exception.

Other exceptions may apply to the appraisals.

Interpretation 13(2)(e):

In the context of this Act, an "Economic forecast" is a report or other record, including facts, findings and conclusions, which predicts trends in the economy that will affect the public body.

Examples:

• A Ministry commissioned a report to assess how a major event would affect the economy of British Columbia. The event has since taken place. The report may not be withheld under section 13(1).
  
  

• A public body hired a consultant to develop an economic forecast of population and industry growth rates. The economic forecast may not be withheld under section 13(1).
  

The methodology, data and analysis used to construct the economic forecast must not be withheld under this exception.

Other exceptions may apply to economic forecasts.

Interpretation 13(2)(f):

"Environmental" refers to the physical surroundings and conditions, especially those affecting people's lives; conditions or circumstances of living; external conditions affecting the growth of plants and animals [OED].

"Impact" means an effect or influence [OED].

"Statement" means a thing stating; a declaration; a formal account of facts [OED].

Environmental impact statements contain technical assessments, based on factual findings and conclusions, respecting the social, cultural, economic and environmental consequences of projects or activities such as buildings, highways, mining and timber harvesting.

An "environmental impact statement" is a formal account of facts and contains technical assessments, based on factual findings and conclusions, respecting the social, cultural, economic and environmental effects, influences or consequences of specific projects or activities such as buildings, highways, construction, mining and timber harvesting.

Examples:

• An environmental impact statement was prepared on a proposed copper mine. The statement included some preliminary advice and recommendations. A second separate summary of the statement was created that included advice and recommendations prepared for the ministry as to how to manage the environmental consequences of the project, should it receive approval. The advice or recommendations in the summary document may be withheld under section 13(1). the remainder of the records, including the preliminary advice and recommendations contained in the environmental impact statement, must be released unless another exception applies.
  
  

• A briefing note prepared for a minister contains a paragraph outlining the environmental consequences of approving a toxic waste dump site in the interior of the province. The paragraph contains information similar to an environmental impact statement in content and substance but not in form. The advice or recommendations may be withheld under section 13(1), but the remainder of the record must be released unless another exception applies.
  

The methodology, data and analysis used to construct the environmental impact statement must not be withheld under this exception.

Other exceptions may apply to the environmental impact statement.

Interpretation 13(2)(g):

"Final" means conclusive, decisive, unalterable, putting an end to doubt [OED].

"Report" includes a broad range of documents providing information or opinions. It must consist of a formal statement or account of the results of the collation and consideration of information. Generally speaking, results would not include mere observations or recordings of fact.

"Audit" means an official investigation of accounts or other matters pertaining to the performance or efficiency of a public body, or any of its programs or policies.

"Final audit" means the conclusive or decisive report of an official investigation of accounts or other matters pertaining to the performance or efficiency of a public body, or any of its programs or policies. This includes an associated executive summary, management report, management or policy letter and other supporting documents. A final audit does not refer to the auditing process. See audit papers for a more in-depth examination of this issue.

If the public body does not confirm an audit report to be the final finished copy, and no further audit report is forthcoming, the final draft is considered to be the audit, regardless of the reason for not completing the audit process. If a file contains only a draft audit report at the time of the applicant’s request and circumstances indicate that the auditor will provide a final audit report, the draft audit report is a not a "final audit" report under paragraph 13(2)(g). See also section 20 (Information that will be published or released within 60 days).

Example:

• An auditor is hired by a public body to conduct an audit of one of its new programs. The consultant sends a series of preliminary draft audits to the public body for clarification. Comments are exchanged, and the consultant sends in a last audit report which is marked ‘Draft’. No more audit reports are received by the public body. In this case, circumstances indicate that this is the last or final audit received by the public body. This final audit would be released, unless another exception applied.
  

"Performance or efficiency" refers to the management, administration, operations, conduct, functioning or effectiveness of the public body, its programs or its policies. This phrase relates to the management of finances, assets, and personnel, and the delivery of services of the public body. It also pertains to the effectiveness of the public body's programs and policies in completing those tasks.

The audit or study methodology, data and analysis and the report’s "advice or recommendations" must not be withheld under this exception.

Other exceptions may apply to the final reports or audits.

Interpretation 13(2)(h):

"Consumer" means purchaser of goods or services [OED].

"Report" includes a broad range of documents providing information or opinions. It must consist of a formal statement or account of the results of the collation and consideration of information. Results generally would not include mere observations or recordings of fact.

A "consumer test report" is a compilation and analysis of research into consumers’ needs in relation to specific goods or services, or which examines the quality, safety, operation or delivery of those goods and services.

The intention of this paragraph is to ensure that a consumer test report is released, along with any tests of the equipment public bodies used to test the consumer products or services.

Examples:

• Elevator test reports.
• Reports on the inspection of restaurants for cleanliness.
• Tests of children's products.

Reports of tests of the equipment used by the public body to test the elevators, restaurants, and children’s products must not be withheld under this exception.

Other exceptions may apply to consumer test reports.

Interpretation 13(2)(i):

A "feasibility study" is a study of the practicability of a proposed project [OED] and includes a cost estimate.

A "technical study" is a study involving or concerned with the mechanical arts and applied sciences; of or relating to a particular craft or subject or its techniques [OED]. A technical study involves an application of some form of specialized knowledge to a subject (e.g., where an engineer studies a plan to build a road on a particular site) and includes a cost estimate.

"Cost estimate" means an estimation of a cost that relates in any way to a policy or project of a public body.

Examples:

• A study into whether it is feasible or technically possible to construct a new natural gas pipeline in the province could not be withheld under subsection 13(1). The entire study would be released unless another exception applies.
  
  

• A study that examines the cost of implementing a new program could not be withheld under subsection 13(1). The entire study would be released unless another exception applies.

Other exceptions may apply to feasibility or technical studies.

Interpretation 13(2)(j):

"Research" means the systematic investigation into and study of materials or sources in order to establish facts and reach new conclusions; an endeavour to discover new or collate old facts by the scientific study of a subject or by a course of critical investigation [OED]. In the context of this Act, the research need not be scientific and is to be construed in the broadest possible manner.

"Field research" means research which must be conducted outside of the normal office environment, but does not include library research. For the purposes of this paragraph, the field research must have been undertaken (conducted, attempted, carried out) before a policy proposal is formulated.

In order to determine what constitutes a "policy proposal", all of the facts and circumstances surrounding the case will have to be examined. A policy proposal does not need to be contained in a formal policy document (such as a briefing note), but it should refer to the report of field research.

Example:

• A study into the traffic pattern at a particular highway intersection is conducted by a ministry. The results are compiled in a report. Some time later, a letter is sent from the Director of a branch of the Ministry to his Assistant Deputy Minister that proposes a need for a policy change, based on the results of the report.
  
  The report cannot be withheld under section 13(1) and would be released unless another exception applies. Section 13(1) may apply to the recommendation portion of the letter from the Director to the Assistant Deputy Minister that recommends a policy change, based on the report.

The research methodology, data and analysis must not be withheld under this exception.

Other exceptions may apply to reports on the results of field research.

Interpretation 13(2)(k):

"Report" includes a broad range of documents providing information or opinions. It must consist of a formal statement or account of the results of the collation and consideration of information. Generally speaking, results would not include mere observations or recordings of fact.

"Task force" means a body established to complete a set task (e.g. study and report on organized crime).

"Committee" means a body of persons appointed for a specific function, by, and usually out of, a larger body [OED].

"Council" means an advisory, deliberative or administrative body of people formally constituted and meeting regularly [OED].

Examples:

• A task force appointed by the Attorney General to study and report on teenagers as perpetrators of violent crimes.
  
  
• Employees of an agricultural product marketing board (a public body) are asked to study and report on market potential for a new product. No formal name or title is assigned to the group but it is similar to task forces, committees or councils and it was established to consider a matter for a public body.
  
  
• A school board establishes a committee of teachers, administrators and parents to review a curriculum program, comment on whether the program meets its stated goals and recommend changes.
  

"Similar body" means any group which is similar in form or function to a task force, committee or council.

Other exceptions may apply to the reports of task forces, committees, councils or similar bodies.

Interpretation 13(2)(l):

13(2)(l) has two parts:

1) There must be a plan or proposal to establish a new or revised program.

2) The plan must have been either approved or rejected by the head of the public body.

"Plan" means a formulated and especially detailed method by which a thing is to be done; a design or scheme; an intention or proposed proceeding [OED].

"Proposal" means a course of action so proposed [OED].

"Program" means the formally recognized activities and functions designed to deliver specific services that are related to a specific subject matter or topic. Programs are associated with a defined management structure and a formal mandate. Programs, in the context of this section, do not refer to computer programs.

The phrase "approved or rejected by the head of the public body" is intended to protect plans or proposals during the deliberative process.

Example:

• The Chair of the Workers' Compensation Board (the head of a public body) approves a formal plan for the introduction of a new program to provide services for injured workers. The Chair approves the plan.

A draft discussion paper cannot be reasonably construed as a plan or a proposal.

Other exceptions may apply to the plan or proposal.

Interpretation 13(2)(m):

The phrase "that the head of the public body has cited publicly" means the head must have referred to (e.g., quoted from, paraphrased or explained the meaning of) the information in a public manner. The determination of what has been cited publicly is one to be made from an examination of all the facts and circumstances in the case.

The phrase "as the basis for making a decision or formulating a policy" means the head must have cited publicly the information as the basis (basis means the foundation or support of something [OED]) for making any of his or her decisions as head of the public body or as the basis for the formulation (creation, design, development) of a policy of the public body.

Examples:

• The chair of a public body writes to a newspaper editor and refers to a confidential study conducted by a consultant as the basis for the public body’s adoption of a controversial policy.
  
  

• City council decides to change the zoning on a controversial parcel of land. The mayor announces that council based the decision on a report the city's planning department prepared.

Other exceptions may apply to part or all of the information.

Interpretation 13(2)(n):

Decision, including reasons

"Decision" in this paragraph means a formal judgement, including the reasons which were used in reaching that judgement. The decision must in some manner affect the rights of the applicant and be made in the exercise of a discretionary power or an adjudicative function.

"Reasons" means a motive, cause or justification; a fact adduced or serving as this; the intellectual faculty by which conclusions are drawn from premises [OED].

Is made in the exercise of a discretionary power or adjudicative function

"A discretionary power" is granted under statute to the administrative level of government. There is a discretionary power when, given certain factual circumstances, the administrative authority is free to make a particular decision and has a choice among various decisions; in other words, when his or her conduct is not dictated in advance by law [Dussault and Borgeat, Administrative Law, 2nd ed.].

"Adjudicative function" means where an administrative tribunal, board, or other non-judicial body or individual has a function conferred by statute, with power to hear and rule on issues involving the rights of people or organizations.

"That affects the rights of the applicant" means the decision must, in some way, affect the rights of the applicant. In some circumstances, other persons might not receive access to the decision and reasons under this paragraph.

Examples:

• Heads are granted a discretionary power under this Act’s discretionary exceptions (e.g., Section 19 - Disclosure harmful to individual or public safety). Where a head makes a decision to refuse access to an individual’s personal information pursuant to section 19, they have exercised a discretionary power which affects the applicant’s rights.
  
  

• The Environmental Appeal Board exercises an adjudicative function pursuant to a number of statutes. Where the Board makes a decision under one of these statutes which affects the rights of an individual, the individual in question must be given a record which records the decision, including the Board’s reasons for making the decision.

Other exceptions may apply to part or all of the information.

Interpretatio