(Cet article a été traduit en français.)

Does current legislation require Ontario Premier Doug Ford to disclose the mandate letters he sent his ministers after the Progressive Conservative government was elected in 2018? In a word, yes. At least according to the Information and Privacy Commissioner of Ontario, the Divisional Court and a two-to-one majority of the Court of Appeal for Ontario.

However, based on policy considerations, we think the answer should be no. The forced disclosure of mandate letters undercuts their purpose and upsets the delicate balance between government openness and effectiveness that is central to good governance.

The Court of Appeal’s decision will come as a surprise to many in the public sector. That’s because mandate letters have until recently been treated as confidential records exempt from disclosure under access to information legislation in Canada.

This default position did not mean that a prime minister or premier could not choose to proactively disclose mandate letters, as have former Ontario premiers Dalton McGuinty and Kathleen Wynne and as has Prime Minister Justin Trudeau since 2015. What it did mean is that no one could compel them to disclose these letters should they decide to keep them private. In other words, the choice to disclose mandate letters or not belonged to the head of government.

What are mandate letters? They constitute an official communication by which the prime minister or premier, as head of government, gives strategic direction to their ministers. Although these letters can take several forms, they usually seek to convey the government’s overall priorities and the specific priorities of each minister within their portfolio.

Mandate letters set out a plan of action for implementing the governing party’s election platform and other priorities, and may contain advice, instructions and guidance for ministers. The proposed approach to implement these priorities will subsequently be brought to cabinet (or the executive council) by the responsible minister for discussion and decision. In this sense, mandate letters initiate the collective decision-making process and help set the agenda of cabinet – that is, the topics it will consider during its mandate.

Ministerial mandate letters: Another nail in the coffin of cabinet government

In defence of ministerial mandate letters

While cabinet secrecy is now looked on with suspicion, the Westminster system of responsible government depends upon it. Confidentiality lets ministers speak their mind freely in cabinet meetings and provides opportunities for the reconciliation of differences and consensus on policy. It shelters them from stakeholders’ pressure and partisan criticism from political opponents.

It also allows ministers to publicly defend the collective decisions made by cabinet by ensuring that any disagreement voiced during the internal process remains private. In this sense, as the Supreme Court of Canada acknowledged 20 years ago in Babcock v. Canada (Attorney General), “Cabinet confidentiality is essential to good government” (paragraph 15).

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Because mandate letters are communications between cabinet colleagues on matters that will be brought to cabinet for discussion and decision, and because they record the views of the prime minister or premier, they inherently contain “cabinet secrets.” Yet, whether or not they can be protected from disclosure depends on the wording of the applicable statute in each jurisdiction. At the federal level since 2019 and in Manitoba since 2021, mandate letters are required by law to be published within 30 days of their issuance, but this requirement is the exception, not the norm, in Canada (see respectively section 73 of the Access to Information Act and paragraph 76.2(1)(b) of the Freedom of Information and Protection of Privacy Act).

In Ontario, the Ford government asserted that mandate letters were exempt from disclosure under section 12 of the Freedom of Information and Protection of Privacy Act (FIPPA) – the exemption for cabinet records – but Information and Privacy Commissioner Brian Beamish rejected the government’s position. The commissioner held that disclosure of the mandate letters would not reveal “the substance of deliberations of the Executive Council” within the meaning of section 12 of FIPPA because there was no evidence that they had been tabled at a cabinet meeting.

Moreover, according to the commissioner, the letters’ contents revealed the outcome, as opposed to the substance, of the premier’s deliberative process. The Divisional Court and the majority of the Court of Appeal found the commissioner’s decision reasonable. The impact of the Court of Appeal’s decision could extend beyond Ontario, as other provinces – Alberta, British Columbia, Manitoba and Prince Edward Island – have similarly worded exemptions.

While this short commentary cannot possibly analyze the competing legal – not to say technical – interpretations of the exemption for cabinet records under FIPPA, it is important to stress the practical implications of the Court of Appeal’s decision. Should it stand, the decision could have a detrimental impact on the way the premier communicates with ministers and therefore weaken government openness and transparency. One of the four following scenarios will unfold:

1. Mandate letters will no longer be drafted, as their confidentiality cannot be guaranteed. Consequently, the message that the premier usually conveys to ministers in writing will be communicated orally or by other means. This will harm the historical record, given that the information previously recorded in mandate letters will no longer be available to historians and other researchers once time passes and confidentiality is lifted.

2. Mandate letters will still be drafted, but they will be written differently. They will be written as instruments of communication with the public rather than communication from premier to minister. Premiers will include in the letters only information they wish to publicly disclose, as is now the case in Ottawa and Winnipeg. Mandate letters will thus be used as a tool for public relations and will no longer contain personal advice, instructions, and guidance from the premier to ministers. This change will, as argued by Eugene Lang, undermine their usefulness as a tool for governance.

3. Mandate letters will be formally tabled at a cabinet meeting to tie them more closely to the collective decision-making process. This highly artificial “laundering process” will be a direct result of the legal interpretation endorsed by the Court of Appeal, which requires that letters be deliberated on by ministers during a specific cabinet meeting in order to fall within the purview of the FIPPA exemption for cabinet records.

4. The Ontario government will (through the legislature) modify the wording of the FIPPA exemption for cabinet records to protect mandate letters and analogous documents that are part of the collective decision-making process. The consequences of this scenario are hard to predict, as there are many ways to modify FIPPA to broaden the scope of the exemption; however, the changes could very well have the effect – intended or not – of expanding cabinet secrecy beyond what is strictly necessary.

As these scenarios illustrate, forcing public officials to disclose information that legitimately ought to remain confidential could lead to less, not more, government openness and transparency. There is still reason to hope that none of the four scenarios will take place and that the Court of Appeal’s unprecedented decision will be overruled, as the Ford government is seeking leave to appeal to the Supreme Court of Canada.

Freedom of information is essential in a democratic society to ensure the government is held accountable and to foster public participation, but it must be balanced against the effectiveness and proper functioning of our system of government, which require a certain level of confidentiality. Hence, in the words of Justice Peter Lauwers, the lone dissenter at the Court of Appeal, section 12 of FIPPA should be read as establishing “a robust and well-protected sphere of confidentiality within which Cabinet can function effectively, one that is consistent with the established conventions and traditions of Cabinet government” (paragraph 93). Based on this purposive interpretation of the law, mandate letters would be kept confidential, as they should be.