Immunization rates & vaccine hesitancy

ORDER PO-4290

Appeal PA17-503

Ministry of Health

August 17, 2022

Summary: Pursuant to the Act, the appellant made a multi-part request regarding immunization

and proposed amendments to the Immunization of School Pupil Act to the Ministry of Health. In

responding to the request, the ministry divided the request into three separate batches. This

order deals with the denial of access to records responsive to batch 2 of the request. The ministry

denied access, in part, on the basis of the mandatory exemption in section 12(1) (Cabinet

records), and the discretionary exemptions in sections 13(1) (advice or recommendations) and

14(1)(i) (security of a system or procedure). The ministry also withheld records and information

as non-responsive to the appellant’s request. At mediation, the appellant raised the issue of the

possible application of the public interest override in section 23. The appellant also took the

position that additional responsive records relating to her request should exist. In this order, the

adjudicator upholds the ministry’s decision, in part. She finds that the information identified as

non-responsive is not responsive to the request, upholds many of the ministry’s exemption claims

and finds that section 23 does not apply to the information that is exempt under section 13(1).

She orders the ministry to disclose two non-exempt records. Finally, she finds the ministry’s

search for responsive records to be reasonable.

Statutes Considered: Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.

F.31, as amended, sections 12(1), 13(1), and 14(1)(i).

Order Considered: Order MO-1450.

OVERVIEW:

[1]

The appellant made a request to the Ministry of Health¹(the ministry) under the

¹At the time of the request, the ministry was known as the Ministry of Health and Long-Term Care.

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Freedom of Information and Protection of Privacy Act (the Act) for access to:

…the issue of immunization/vaccination and the Ministry of Health and other

stakeholders’ efforts to increase vaccination/immunization cover rates,

reduce vaccine hesitancy and require those who administer immunization

to provide information to the local medical officer of health.

I am interested in all records related to the proposed amendments to

Immunization of School Pupil Act (ISPA). Including (1) records re Bill 87 (An

Act to implement health measure and measure relating to seniors by

enacting, amending or repealing various statutes) and (2) records re the

former Bill 198 (Immunization of School Pupils Amendment Act, 2016)

Format of Records: Wherever possible, I would like to receive records in

electronic format.

Definition of including – in this letter, including mean including but not

limited to.

Definition of records – in this letter, records mean all records, including

reports, briefing notes, policy papers, presentations, recommendations,

meeting notes, legal opinions, reviews, surveys, discussion papers and

communication (letters, emails, messages and other correspondence).

Please provide the following:

1. For the period January 1, 2012 to April 10, 2017 all briefing notes which

mention/discuss (a) proposed amendments to ISPA; or (b) ways to increase

vaccination/immunization rates or reduce vaccine hesitancy.

2. For the period January 1, 2012 to April 10, 2017, all records regarding

(a) the legal implications of changes to vaccination/immunization

legislation, including (b) the legal implications of the amendments to ISPA

which are proposed by Bill 198 and Bill 87. (These include Canadian Charter

of Human Rights and Freedoms implication Human Rights Code implication

and International Treaties, Privacy Legislation, Right to Informed Consent,

right to education and all other legal implications of the proposed changes.)

3. For the period January 1, 2012 to April 10, 2017, all records (including

reviews and surveys) which discuss solutions employed or considered by

other jurisdictions in order to increase immunization/vaccination coverage

rates and/or reduce vaccine hesitancy.

4. For the period January 1, 2012 to April 10, 2017, all records discussing

increasing vaccination/immunization rates and/or reducing vaccine

hesitancy which involve vaccine/immunization stakeholders. Including

records prepared by, provided by or in consultation with such stakeholder.

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(Without limiting the generality of the request, stakeholders include medical

association, manufacturers/vendors of vaccines, lobby groups and any

other party or organization which has an interest – financial or otherwise –

in increasing vaccination rates or which supports increasing vaccination

rates.)

5. For the period January 1, 2012 to April 10, 2017, all records of meetings

(including paperless meetings) in which stakeholders (a defined in 3 above)

and Ministry of Health staff participated, in which improving

vaccination/immunization coverage rates, mandatory vaccination, vaccine

hesitancy or reducing exemptions from vaccination were discussed. This

includes a list of such meetings.

6. For the period of January 1, 2012 to April 10, 2017, all records concerning

the drafting of proposed amendments to ISPA – including all drafts,

proposals, versions/iterations.

7. For the period January 1, 2012 to April 10, 2017, all records which

consider the strengths and weaknesses of proposed amendments to ISPA.

8. For the period January 1, 2012 t April 10, 2017, all records which discuss

the details of education sessions proposed under said amendments to ISPA,

including records discussing location and timing, how educations content of

sessions would be created and by whom, frequency of sessions, who the

educators would be and possible cost.

Such records may involve Ontario Ministry of Health (including Ontario’s

Health Minister, The Deputy Health Minister, Associate Deputy Minister and

other Ministry of Health public servants), Ontario Cabinet, any Ontario

advisory

body/board/commission

dealing

with

vaccines/immunization/health. Ontario’s Public Health, Ontario’s Attorney

General or Ministry of Health Legal Services Branch, the Ministry of

Education and other government and non-government stakeholders.

[2]

The appellant specified that she would prefer to receive the records in electronic

format; requested detailed information regarding any withheld records; and requested a

fee waiver on the grounds of financial hardship.

[3]

The ministry acknowledged the request and advised the appellant that the request

would be split into three separate requests and they would process the requests in

batches. The subject matter of this appeal is the part of the request relates to parts 3, 7

and 8 of the appellant’s request set out above which the ministry labelled as batch 2. The

ministry also asked the appellant to narrow the scope of her request by removing emails

due to the significant search time for these types of records. Also, the ministry suggested

removing vaccine hesitancy as a phrase in its search and instead use phrase increasing

immunization rates to improve the number of responsive records.

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[4]

The ministry then gave notice to a number of affected parties (organizations whose

interests may be affected by disclosure of the record) and it issued an interim decision to

the appellant granting partial access to the records. The ministry withheld certain

information on the basis of the mandatory exemption at section 12(1) (cabinet records),

and the discretionary exemption at section 19 (solicitor-client privilege). The ministry also

granted a partial fee waiver, reducing the fee.

[5]

Following payment of the fee, the ministry issued a final decision in which it

disclosed responsive records to the appellant withholding information on the basis of

sections 21(1) (personal privacy) and 13(1) (advice or recommendation) in addition to

sections 12(1) and 19 already claimed in its interim access decision. The ministry also

withheld information on the basis that it was not responsive to the request.

[6]

The appellant appealed the ministry’s decision to the Information and Privacy

Commissioner (IPC). A mediator was appointed to explore the possibility of resolution.

During mediation, the appellant raised the issue of the discrepancy in the number of

responsive records identified in the ministry’s interim decision versus the number of

responsive records she was provided with as a result of the ministry’s final decision. The

mediator confirmed that the ministry had erred in its identification of the number of

responsive records in its interim decision. The appellant advised the mediator that further

responsive records should exist relating to parts 3 and 8 of her request. The appellant

also advised that she seeks access to the information identified as not responsive to her

request.

[7]

The mediator asked the ministry to conduct a further search for records and to

provide a description of the searches and for it to reconsider the disclosure of information

it deemed as not responsive. The mediator further asked the ministry to provide the

relevant exemptions and subsections that it relied on to withhold the exempt information.

[8]

The ministry conducted a further search and issued a revised decision granting

access, in part, to information previously denied as not responsive to the request. The

ministry advised the appellant that some of the information previously deemed as non-

responsive to the request, had now been withheld pursuant to sections 13(1) and 14(1)(i)

of the Act. The ministry also provided further detail of the exemptions claimed and

provided the appellant with an updated index. The appellant informed the mediator that

she is no longer appealing access to the information withheld under sections 19 and 21(1)

but she continues to seek access to the information withheld under sections 12(1, 13(1),

and 14(1)(i) as well as to information identified as not responsive to her request. The

appellant also continues to believe that additional responsive records should exist and

the reasonableness of the ministry’s search was added to the scope of the appeal. The

appellant also believes that the ministry inappropriately narrowed the scope of her

request so the issue of scope and responsiveness was also added to appeal. Finally, the

appellant raised the possible application of the public interest override in section 23 to

the withheld information.

[9]

As mediation did not resolve the appeal, the file was moved to the adjudication

stage of the appeals process where an adjudicator may conduct an inquiry under the Act.

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The adjudicator assigned to the appeal decided to conduct an inquiry. He sought and

received representations from the ministry and the appellant. Representations were

shared in accordance with the IPC’s Code of Procedure.

[10] The appeal was then transferred to me to continue with its adjudication.²In this

order, I partly uphold the ministry’s decision to withhold records and information under

sections 12(1), 13(1) and 14(1)(i). I find that the information identified as not responsive

is not responsive to the appellant’s request. I find that the public interest override does

not apply to the information and record I found exempt under section 13(1) and finally I

find the ministry’s search for records to be reasonable. I order the ministry to disclose

the records and information that I find are not exempt.

RECORDS:

[11] The records at issue consist of emails and their attachments as set out in the Index

of Records in the appendix to this order.

ISSUES:

A.

B.

Did the ministry properly identify parts of the records as not responsive?

Does the mandatory exemption at section 12(1) for Cabinet records apply to the

records?

C.

D.

E.

F.

Does the discretionary exemption at section 13(1) for advice and

recommendations apply to the records?

Does the discretionary exemption at section 14(1)(i) apply to records, 185, 189,

191, and 195?

Did the ministry properly exercise its discretion in claiming sections 13(1) and

14(1)(i)?

Is there a compelling public interest in disclosure of the records that clearly

outweighs the purpose of the section 13(1) exemption?

Did the ministry conduct a reasonable search for records?

G.

DISCUSSION:

Issue A: Did the ministry properly identify parts of the records as not

responsive?

[12] The ministry identified four records (95, 163, 230 and 246) as not responsive to

the appellant’s request. Section 24 of the Act imposes certain obligations on appellants

and institutions when submitting and responding to requests for access to records. This

section states, in part:

2

I have reviewed all the file materials and representations and have determined that I do not require

further information before making my determination.

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(1)

A person seeking access to a record shall,

(a)

make a request in writing to the institution that the

person believes has custody or control of the record;

(b)

provide sufficient detail to enable an experienced

employee of the institution, upon a reasonable effort,

to identify the record;

…

(2)

If the request does not sufficiently describe the record sought, the

institution shall inform the applicant of the defect and shall offer

assistance in reformulating the request so as to comply with

subsection (1).

[13] Institutions should adopt a liberal interpretation of a request, in order to best serve

the purpose and spirit of the Act. Generally, ambiguity in the request should be resolved

in the requester’s favour.³To be considered responsive to the request, records must

reasonably relate to the request.⁴

[14] The ministry submits that the appellant’s request provided a clear description of

the records sought and the responsive records fell into three categories and relate to

three subject matters:

1.

2.

3.

Information from other jurisdictions on ways to increase

immunization coverage/vaccination rates;

Assessments of the proposed amendments to the Immunization of

School Pupils Act (ISPA); and

The specifics of the education sessions under the proposed

amendments to the ISPA. [emphasis in the original]

[15] The ministry submits that it broadly interpreted the appellant’s request in order to

ensure that its search captured all the records reasonably related to the request. Further,

the ministry submits that it contacted the appellant to clarify her request including

proposing that the term “vaccine hesitancy” be removed as that term is rarely used by

the ministry. The ministry states:

Any references to vaccine hesitancy that might be included in a record

would be found in a search for the more commonly used phrase: ways to

increase vaccination/immunization rates. The ministry’s suggestion was not

an attempt to reduce the scope of the request; on the contrary, the purpose

was to focus the search on the more common phrase. Nevertheless, since

the appellant did not accept the ministry’s suggestion, the ministry did in

³Orders P-134 and P-880.

⁴Orders P-880 and PO-2661.

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fact include the term vaccine hesitancy in its search – even though it knew

that few records would contain this term.

[16] The ministry submits that the records that it identified as not responsive do not

relate to the subject matters identified in the appellant’s request.

[17] The appellant submits that because the ministry chose to divide her requests up

into batches, the records it identified as not responsive may be responsive to other parts

of her request but were never captured by the ministry’s search for responsive records

when it responded to the other batches of her request. Instead, the appellant submits

that the ministry would have identified the record as a duplicate instead of as reasonably

relating to her request. The appellant provided specific examples where this occurred.

The appellant asks that I review records 95, 163, 202, 230 and 246 to determine if they

are not responsive to any of the eight items in her request bearing in mind that her

request should be given a liberal interpretation and ambiguities decided in her favour.

[18] The appellant also asked that I consider the fact that the ministry initially claimed

that certain records were not responsive but then changed its decision and claimed either

section 13 or 14(1)(i) for this information. The appellant provided specific examples which

she submits is evidence of the ministry’s claim of non-responsiveness to prevent access

to certain information.

Analysis and finding

[19] I have reviewed the parties’ representations and the records claimed not to be

responsive by the ministry. For the reasons below, I find that the records and information

identified by the ministry as non-responsive are not reasonably related to the appellant’s

request.

[20] In reaching this conclusion, I considered and agreed with the appellant’s

submission that if the ministry identified information as not responsive, I should review

their decision considering whether the information would be responsive to any of the

parts of her request and not just those parts that are being dealt with in this batch of

records.⁵

[21] However, I also accept the ministry’s submission that the appellant’s request, not

just those parts covered in this batch, was very specific and clear as to the information

that she was seeking. The appellant was seeking particular information relating to records

about immunization, including proposed amendments to ISPA. The appellant’s request

further sets out the breadth of the records she sought. I find that there was little room

in the appellant’s request for ambiguity in determining the records she is seeking.

[22] I give little weight to the appellant’s argument that the ministry’s change in

decision is evidence of bad faith in its claim of non-responsiveness. As noted by the

⁵I note that PA18-100 deals with Batch 3 of the records relating to the appellant’s request. That appeal is

also currently before me.

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ministry in its reply representations, a claim of non-responsiveness is a valid claim under

the Act and not evidence of an attempt to thwart access.

[23] Records 95, 163, 202, 230 and 246 do not relate to any of the eight parts of the

appellant’s request. As these records are not responsive to the appellant’s request, I can

not provide more detail about their contents. However, I confirm that these records are

not responsive because they do not relate to immunization or vaccination and/or the

proposed amendments to the ISPA. These records relate to other matters in the ministry’s

jurisdiction as well as other public health issues.

[24] Furthermore, I find that a liberal interpretation of the appellant’s request would

not result in a finding that these records would be responsive to the appellant’s request.

In reviewing these records, I reviewed all of the parts of the appellant’s request and the

subject matter she was seeking. I confirm that these records do not reasonably relate to

the appellant’s request and I uphold the ministry’s decision to withhold these records on

the basis that they are not responsive.

Issue B: Does the mandatory exemption at section 12(1) apply to the records?

[25] The ministry submits that the following records, in part or in full, are exempt under

section 12(1): 5, 6, 13, 14, 16-18, 20, 21, 26, 27⁶, 28, 30, 31, 33, 34, 36, 39, 46, 48, 67,

68, 70, 96, 120, 129-131, 133-135, 138-143, 145-151, 154, 157, 158, 160-162, 164⁷,

166-170, 173, 183, 184, 192, 193, 204, 205, 212, 216, 217, 227, 236, 239, 243-245, 251,

254-257.

[26] Section 12(1) protects certain records relating to meetings of Cabinet or its

committees. It reads, in part:

A head shall refuse to disclose a record where the disclosure would reveal

the substance of deliberations of the Executive Council or its committees,

including,

(a)

an agenda, minute or other record of the deliberations

or decisions of the Executive Council or its committees;

(b)

a record containing policy options or recommendations

submitted, or prepared for submission, to the

Executive Council or its committees;

(f)

draft legislation or regulations.

[27] The Executive Council, which is more commonly known as Cabinet, is a council of

⁶During the inquiry, the ministry withdrew its claim for the slide deck that was attached to records 27 and

164. As the emails for these records has not yet been disclosed, I will consider the application of section

12 to the emails only.

⁷Ibid.

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ministers of the Crown and is chaired by the Premier of Ontario.

[28] Any record that would reveal the substance of deliberations of the Executive

Council (Cabinet) or its committees qualifies for exemption under section 12(1), not just

the types of records listed in paragraphs (a) to (f).⁸

[29] A record never placed before Cabinet or its committees may also qualify for

exemption, if its disclosure would reveal the substance of deliberations of Cabinet or its

committees, or would permit the drawing of accurate inferences about the deliberations.⁹

[30] The institution must provide sufficient evidence to show a link between the content

of the record and the actual substance of Cabinet deliberations.¹⁰

Ministry’s representations

[31] The ministry submits that the very nature of the appellant’s request is for Cabinet

records as she specifically requested records that relate to the proposed amendments to

the ISPA:

All records which consider the strengths and weaknesses of proposed

amendments to ISPA

All records which discuss the details of education sessions proposed under

said amendments to ISPA

[32] The ministry explains that all proposed legislative amendments are submitted to

Cabinet and the materials that accompany the proposed amendments contain discussions

of policy options, recommendations and/or background explanations and analysis related

to the amendments under consideration. Accordingly, the ministry submits that any

records responsive to the appellant’s requests (set out above) would necessarily and

inevitably reveal the substance of Cabinet deliberations. The ministry goes on to explain

that, in responding to the request, it searched for Cabinet records in particular because

those records would contain the most relevant and responsive information about the

proposed ISPA amendments that are of interest to the appellant.

[33] For the records withheld in full under section 12(1), citing Orders P-22, P-1570

and PO-2320, the ministry submits that under the introductory wording of section 12(1)

any record that would reveal the substance of Cabinet deliberations qualifies for

exemption. Further, the ministry submits that the record does not need to be placed

before Cabinet or its committees to qualify for exemption if its disclosure would reveal

the substance of deliberations of Cabinet or its committees or would permit the drawing

of accurate inferences regarding the deliberations.

[34] The ministry submits that all of the records for which it claims that section 12(1)

⁸Orders P-22, P-1570 and PO-2320.

⁹Orders P-361, PO-2320, PO-2554, PO-2666, PO-2707 and PO-2725.

¹⁰Order PO-2320.

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applies reflect the substance and content of a Cabinet committee’s deliberations on the

proposed amendments to the ISPA as they were all either submitted to, prepared for

submission to, or used to develop submissions to Cabinet. In addition to the introductory

wording of section 12, the ministry claims that sections 12(1)(a), (b) or (f) also apply to

the records. The ministry states:

Records 14, 131, 135, 158 and 236 contain Cabinet minutes. These records

clearly fall within the exemption under section 12(1)(a), as well as the

opening words of section 12(1).

Records 5, 6, 16, 18, 20, 21, 46, 48, 67, 70, 120, 129, 130, 131, 138, 142,

146, 147, 149, 150, 151, 157, 162, 167, 173, 204, 205, 216, 227 and 243

contain recommendations and/or policy options developed for submission

to Cabinet or its committees, as such they too are exempt under section

12(1)(b) and the opening words of section 12(1).

Many of the records contain discussions of the policies for which the ministry

was seeking Cabinet’s approval, and include recommendations as well. For

example, records 142, 146 and 147; the final versions of these records were

included in a Cabinet submission.

Records 14, 67, 216 and 227 fall squarely within 12(1)(f) as they contain

draft legislative amendments to the ISPA.

Some records, such as record 145, contain information that was used to

develop submissions.

[35] For the partial records that were withheld under section 12(1), the ministry submits

that records 26, 36, 68, 133, 134, 148, 154, 168, 184 and 212 qualify for exemption

under the introductory wording of section 12(1). The ministry notes that portions of

these records relate to the Cabinet submission on amendments to the ISPA such that

disclosure would reveal the substance of deliberations of Cabinet or its committees.

[36] The ministry was given an opportunity to respond to the appellant’s

representations, which are summarized below. The ministry disputes that it was required

to identify the specific paragraph of section 12(1) that applied to each of the withheld

records where that exemption was claimed. Finally, the ministry addressed the mandatory

exception in section 12(2)(b) to section 12. The ministry submits that section 12(2)(b)

does not apply because:

…The records withheld under section 12 were prepared for a Cabinet which

no longer exists because of the change in government in June 2018.

Consequently, the Ministry submits it has no discretion to disclose or

consider seeking Cabinet’s consent to disclose these records.

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Appellant’s representations

[37] The appellant submits that in its access decisions to her, the ministry failed to

provide a clear and helpful index of record setting out the specific paragraph for section

12 that was being claimed for each record. The appellant argues:

The ministry failed to provide extensive evidence with respect to each

document for which it claimed a section 12 exemption. There was no

affidavit explaining details, such as how each document would reveal the

substance or Cabinet deliberations, in choosing to rely on broad, vague

statements which fail to discuss specific records, the ministry failed to meet

the burden of proving the exemptions.

[38] The appellant believes that the ministry applied section 12 in an overly-broad

manner and argues that a covering email or attachments of the records at issue may not

be exempt under section 12 as their disclosure would not reveal the substance of

deliberations and should be disclosed to her. The appellant submits that where

documents were shared with people who are not government employees or were

distributed outside the government to various stakeholders or were created by

stakeholders – these documents should not be exempt under section 12.

[39] The appellant also disputes the ministry’s position that the very nature of her

request meant that only Cabinet records would be identified as responsive. The appellant

suggests that I consider whether the records at issue are actually exempt and not simply

assume that the records are exempt under section 12.

[40] The appellant also made specific representations regarding the application of the

introductory wording of section 12(1), and sections 12(1)(a), (b), (c), (e) and (f). I have

reviewed these representations but do not set them out here. Essentially, the appellant

argues that I should consider whether the records could be severed to disclose

information to her that would not reveal the substance of Cabinet deliberations. The

appellant also notes that for those records claimed exempt under sections 12(1)(c) and

(e), once background information is used to develop a submission it can no longer be

exempt once Cabinet renders a decision and the decision is implemented.

[41] Lastly, the appellant submits that the ministry’s reasons for its decision not to seek

Cabinet’s consent to disclose the records are not compelling.

Analysis and findings

[42] As I noted above, any record that would reveal the substance of deliberations of

the Executive Council (Cabinet) or its committees qualifies for exemption under section

12(1), not just the types of records listed in paragraphs (a) to (f). The ministry claims

that some of the records are exempt under the introductory wording, while others are

exempt under specific paragraphs (paragraphs (a), (b) and (f)). I disagree with the

appellant that the ministry has not been clear in which parts of section 12 it has applied

to the records.

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[43] For section 12(1)(a), “agenda” means a specific record created as an official

document of Cabinet Office that identifies the actual items to be considered at a particular

meeting of Cabinet or one of its committees. An entry in a different record that describes

the subject matter of an item considered or to be considered by Cabinet is not usually

considered to be an agenda.

[44] For a record to be exempt under section 12(1)(b), a record must contain policy

options or recommendations, and must have been either submitted to Cabinet or its

committees or at least prepared for that purpose. Such records remain exempt after

Cabinet makes a decision.

[45] For a record to be exempt under section 12(1)(f), the record must consist of draft

legislation or regulations.

[46] I have reviewed the parties’ submissions and the withheld records. For the reasons

below, I find the records at issue are exempt under section 12(1), with the exception of

records 27 and 164. For the appellant’s information, I have added a description of the

withheld records in the index which is in the appendix to this order.

[47] In order to meet the requirements of the introductory wording of section 12(1),

the institution must provide sufficient evidence to establish a linkage between the content

of the record at issue and the actual substance of Cabinet deliberations.¹¹Previous orders

of this office have found that:



deliberations refer to discussions conducted with a view towards

making a decision;¹²and

substance generally means more than just the subject of the

meeting.¹³

[48] Based on my review of the records and the ministry’s representations, I find I have

sufficient evidence to find that the introductory wording in section 12(1) applies to exempt

records 13, 14, 26, 28, 30, 31, 33, 34, 36, 39, 68, 96, 133-135, 143, 145, 148, 154, 158,

160-161, 166, 168-170, 183, 184, 192, 193, 212, 217, 236, 239, 244, 245, 251, 254-257

from disclosure. Specifically, I find that the detailed nature of the email records, the

nature and content of the attachments and the ministry’s representations all demonstrate

that disclosure of the records would reveal the substance of deliberations of Cabinet

and/or its committees.

[49] I also find that subsections (a), (b) and (f) of section 12(1) apply the records for

which the ministry made such claims. Having reviewed the records, I make the following

findings:



Records 14, 131, 135, 158 and 236 all contain Cabinet minutes and

are therefore exempt under section 12(1)(a).

¹¹Order PO-2320.

¹²Order M-184.

¹³Orders M-703 and MO-1344.

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

Records 5, 6, 16, 18, 20, 21, 46, 48, 67, 70, 120, 129, 130, 131, 138,

142, 146, 147, 149, 150, 151, 157, 162, 167, 173, 204, 205, 216,

227 and 243 all contain policy options and recommendations for

submission to Cabinet or its committees and are exempt under

section 12(1)(b).

Records 14, 216 and 227 all contain draft legislative amendments to

the ISPA and are exempt under section 12(1)(f).

[50] Regarding record 67, the ministry’s representations suggest that it contains draft

legislation. It does not contain draft legislation but I accept that section 12(1)(b) applies

to it because it contains recommendations developed for submission to the Legislation

and Regulation Committee of Cabinet.

[51] For the records withheld under the introductory wording of section 12(1), the

ministry must provide sufficient evidence to show a link between the content of the record

and the actual substance of Cabinet deliberations.¹⁴

[52] The appellant does not dispute that there were proposed amendments to be made

to the ISPA and that the content of the records at issue may relate to these amendments.

The appellant submits that the ministry did not provide sufficient information about the

records and evidence to establish the application of the introductory wording of section

12(1). I agree with the appellant that the ministry’s representations do not provide

detailed descriptions or summaries of the records, and the deliberations of Cabinet or its

committees that would be disclosed if the records were found not to be exempt. However,

in the circumstances of this appeal, the records themselves provide sufficient evidence to

establish the necessary link with actual substance of Cabinet deliberations.

[53] As stated above, the records are emails with attachments and I have reviewed

them. The emails contain detailed discussions which describe:



The Cabinet or committee meeting that was being prepared for

including questions raised by Cabinet Office, the Minister of Health

or staff members about the proposed amendments.



Back and forth discussions about the documents that needed to be

reviewed or prepared for Cabinet and committee meetings.

Discussions about changes required to be made to documents

relating to aspects of the proposed amendments as a result of the

deliberations at Cabinet or committee meetings.



Feedback from the Ministry of Education about the proposed

amendments and the changes required to be made to Cabinet

submissions.

[54] Considering the content and the subject matter of the emails and their

attachments, and the context in which they were prepared, it is evident to me that

disclosure of them would disclose the actual substance of deliberations of Cabinet or its

¹⁴Order PO-2320.

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committees and its committees or permit the accurate inference of the substance of the

deliberations. As stated, the government at the time was considering amendments to the

ISPA. Any such amendments would have required Cabinet approval. In the

circumstances, and given the timing of the creation of the records at issue, I have no

difficulty concluding that their disclosure would reveal the substances of Cabinet’s

deliberations about the proposed amendments.

[55] The appellant also argues that the ministry applied the section 12(1) exemption

too broadly and may have applied it to records that would not disclose the substance of

deliberations of Cabinet or its committees. She also states that some of the records were

shared outside of government. I observe that, depending on the context, records shared

outside of government may still reveal the substance of Cabinet’s deliberations. However,

in any event, and in order to address the appellant’s concern, I observe that the emails

were not sent or received by individuals outside the government. The emails do not

include stakeholder information or submissions. The emails are all amongst ministry staff,

Ministry of Education staff, and Cabinet Office staff.

[56] As stated above, I find that records 27 and 164 are not exempt under the

introductory wording of section 12(1) or any of its paragraphs. Records 27 and 164

consist of emails and an attached slide deck. The attached slide deck has been disclosed

to the appellant and I am unable to find that disclosure of the email would disclose the

actual substance of deliberation of Cabinet or its committees. Nor am I able to find that

disclosure of these emails would permit the inference of the substance of such

deliberations. As these emails are not exempt under section 12(1), and the ministry has

not claimed any discretionary exemptions for them nor do any mandatory exemptions

apply, I will order the ministry to disclose these emails to the appellant.

[57] I have reviewed the exceptions to section 12(1) in section 12(2) and find that

neither apply. Only section 12(2)(b) may possibly apply; it states:

Despite subsection (1), a head shall not refuse under subsection (1) to

disclose a record where,

(b) the Executive Council for which, or in respect of which,

the record has been prepared consents to access being given.

[58] The head of an institution is not required under section 12(2)(b) to seek the

consent of Cabinet to release the record. However, the head must at least turn their mind

to it.¹⁵

[59] Only the Cabinet in respect of which the record was prepared can consent to the

disclosure of the record.¹⁶

[60] While the appellant takes issue with the ministry’s reasons for not seeking consent,

¹⁵Orders P-771, P-1146 and PO-2554.

¹⁶Order PO-2422.

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I accept that given the fact that the records withheld under section 12(1) were prepared

for a Cabinet which no longer exists, the ministry decided that it would not endeavour to

seek the former Cabinet’s consent to disclose the records at issue. I accept that the

ministry turned its mind to Cabinet consent.

[61] Lastly, the appellant also asks that I consider whether the records could be

severed under section 10(2) of the Act to disclose any information to her that is not

exempt under section 12(1). I have considered whether the records could be severed

and find that they cannot. The records contain only information that is exempt under

section 12(1).

Issue C: Does the discretionary exemption at section 13(1) apply to the

records?

[62] The ministry submits that record 200 is exempt, in full, under section 13(1) and

that records 68, 122, 123, 126, 128, 144, 152, 155, 156, 210, 211 and 214 are exempt,

in part, under section 13(1). Section 13(1) of the Act states:

A head may refuse to disclose a record where the disclosure would reveal

advice or recommendations of a public servant, any other person employed

in the service of an institution or a consultant retained by an institution.

[63] Section 13(1) of the Act exempts certain records containing advice or

recommendations given to an institution. This exemption aims to preserve an effective

and neutral public service by ensuring that people employed or retained by institutions

are able to freely and frankly advise and make recommendations within the deliberative

process of government decision-making and policy-making.¹⁷

[64] Section 13(1) applies if disclosure would “reveal” advice or recommendations,

either because the information itself consists of advice or recommendations or the

information, if disclosed, would permit the drawing of accurate inferences as to the nature

of the actual advice or recommendations.

[65] The relevant time for assessing the application of section 13(1) is the point when

the public servant or consultant prepared the advice or recommendations. The institution

does not have to prove that the public servant or consultant actually communicated the

advice or recommendations. Section 13(1) can also apply if there is no evidence of an

intention to communicate, since that intention is inherent to the job of policy

development, whether by a public servant or consultant.

Representations

[66] The ministry submits that in John Doe v. Ontario (Finance), cited below, the

Supreme Court of Canada held that advice and recommendations have distinct meanings.

Recommendations, which can be expressed or inferred, refer to material that relates to

¹⁷John Doe v. Ontario (Finance), 2014 SCC 36, at para. 43.

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a suggested course of action for the ministry to accept or reject. The Supreme Court of

Canada held that advice under section 13(1) has a broader meaning than

recommendations. Advice involves an evaluative analysis of information. Advice includes

policy options, which are lists of alternative courses of action, and the view or opinions

of a public servant relating to the policy options. The record does not need to be

communicated in order for section 13(1) to apply.

[67] Further, the ministry notes that this office has adopted the analysis from John Doe

in Orders PO-3365, PO-3734 and PO-3496. The ministry submits that according to

Reconsideration Order PO-3470-R, the Supreme Court of Canada’s holding has changed

how the IPC applies and interprets the section 13(1) exemption. This is set out in

paragraphs 57 and 58 above.

[68] Finally, the ministry submits that advice also includes information on how the

institution “should view a matter” and “the parameters within which a decision should be

made” as discussed in John Doe and reiterated in Order PO-3734.

[69] Regarding the specific records for which section 13(1) is claimed, the ministry

states the following:



Record 200 is an email in which recommendations regarding the

proposed amendments to the ISPA are discussed. The entire email

relates to the recommendations, such that disclosure of any part of

the email would reveal the content of the recommendations.

Record 68 includes a number of attachments. The portions

containing analyses of policy options fall squarely under section

13(1) based on the John Doe decision.

The severed portions of records 122, 123, 128, 144 and 152 contain

advice of ministry staff. The finalized versions of these records were

disclosed in record 168.



Portions of records 126, 155 and 156 were severed because they

contain advice as well as detailed analyses of policy options.

The severed portion on pages 1 and 7 of record 210 would, if

disclosed, reveal a recommendation. The same information was

severed from records 211 and 214.

[70] The ministry states that since the severed portions of the records contain views,

opinions, and analyses of various policy options they fall within the ambit of advice under

section 13(1) as described in John Doe. And the disclosure of this information would

reveal or permit the drawing of accurate inferences regarding the advice and/or

recommendation given by staff.

[71] The ministry submits that none of the mandatory exceptions in section 13(2) apply

to the withheld information as the records do not contain any of the specified type of

information listed in section 13(2). The ministry notes that while some of the severed

portions contain factual information, that information is linked to the advice and/or

recommendation being provided. In Order PO-2097, the ministry notes that the IPC found

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the following and this applies to the withheld information in the present appeal:

…the factual information relied upon by the reviewers is inextricably

intertwined with the advice and recommendations being provided to the

ministry…it is not possible to separate the factual information from the

advice and recommendations…and [therefore] the exception in section

13(2)(a) has no application to it.”

[72] The appellant submits that there are a number of types of information that have

been found by this office to not qualify as advice or recommendation under section 13(1)

including:



Factual or background information

Analytical information

Evaluative information

Notification or cautions

Views

Draft documents

A supervisor’s direction to staff on how to conduct an investigation¹⁸

[73] The appellant submits that it is highly unlikely that all of record 200 which the

ministry claimed is fully exempt under section 13(1) contains advice or recommendation.

The appellant submits that it more likely that only a portion of record 200 is exempt under

section 13(1) and the remaining parts may include factual information which is excepted

from the exemption in section 13(2)(a).

[74] With respect to the records 68, 122, 123, 126, 128, 144, 152, 155, 156, 210, 211

and 214 which were withheld in part, appellant submits that it is her belief that the

ministry applied the section 13(1) exemptions broadly and even the withheld parts of

these records do not contain advice or recommendations. The appellant notes that while

the ministry submits that there are instances where it may not be possible to separate

the factual information from the advice or recommendation, she notes that the ministry

did not point to a specific example. The appellant also submits that the ministry did not

discuss the possible application of the other exceptions in section 13(2) and asks I

consider their possible application to the withheld information.

[75] Lastly, the appellant submits that I should carefully consider whether the ministry’s

claim of section 13(1) to withhold information in records 210, 211 and 214 is legitimate

since it had initially claimed this information was not responsive to the request. The

appellant notes that the withheld not-responsive information was clearly responsive and

she submits that the ministry may be trying to shield the information in these records

from disclosure by claiming the application of the section 13(1) exemption.

¹⁸Order P-434; Order PO-1993, Order PO-2115, Order P-363, upheld on judicial review in Ontario (Human

Rights Commission) v. Ontario (Information and Privacy Commissioner) (March 25, 1994), Toronto Doc.

721/92 (Ont. Div. Ct.).

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Analysis and finding

[76] Based on my review of the parties’ representations and the records themselves, I

find that section 13(1) applies to the withheld information.

[77] For records 68, 122, 123, 126, 128, 144, 152, 155, 156, 210, 211 and 214¹⁹which

were withheld in part, I find that the withheld information consists of the following:



Record 68 – A list of options and a detailed discussion of their details

and considerations.

Record 122 – A draft document with comments and an email chain

containing a discussion about the draft document.

Record 123 – A draft document with comments and an email chain

regarding the draft document, circulated for comment and approval.

Record 126 – A draft briefing note with attached chart containing list

of options and proposed actions circulated for comment and

approval.



Record 128 – A draft document with comments circulated for

comment and approval

Record 144 – A draft document with comments circulated for

comment and approval.



Record 152 – A draft document with comments circulated for review.

Record 155 – A draft document with comments including chart with

list of options and proposed actions. Email contains questions from

the Minister.



Record 156 – A draft document with comments including chart with

list of options and proposed actions.

Record 210 – A draft version of a document containing edits

circulated for review and signature.

Record 211 – A draft version of a document containing edits

circulated for review.

Record 214 – A final version of a document with email containing

suggested course of action regarding the document.

[78] Record 200 is an email chain amongst staff at the ministry containing advice

regarding vaccine requirements.

[79] I find that disclosure of all of these records would reveal the advice or

recommendation sought or given by staff at the ministry regarding the vaccine

requirements and the ISPA amendments. All of the records at issue are emails with

attached documents. In each case, the emails expressly refer to the attached documents

and contain recommendations and discussion about the substance of the draft attached

¹⁹The ministry’s representations refer to a Record 215 but the ministry’s index notes that Record 215 was

disclosed in full. The ministry’s index also refers to Record 214 which was withheld under section 13(1). I

have considered whether Record 214 was exempt under section 13(1).

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documents. I find that all of the records are exempt under section 13(1) of the Act.

[80] Given the nature of the records at issue, emails with attached documents, I also

considered whether any of the pages of the records or emails could be severed or would

be subject to the mandatory exceptions to section 13(1) set out in section 13(2). In

particular, I considered whether there was factual information in the records that would

be excepted from exemption under section 13(2)(a). Based on my review of all of the

withheld information, I find that the factual information in the records is inextricably

intertwined with the advice and/or recommendation such that I am unable to find that

the exception in section 13(2)(a) applies. Furthermore, because the factual information

and the advice and/or recommendations are intertwined, I am unable to find that the

records can be severed in such a way to disclose information to the appellant.

[81] Accordingly, I find section 13(1) applies to the records for which it was claimed

and I will consider the ministry’s exercise of discretion below.

Issue D: Does the discretionary exemption at section 14(1)(i) for security

apply to records 185, 189, 191, and 195?

[82] The ministry submits that section 14(1)(i) applies to part of record 195. Record

195 is an email with an attached document that is approximately 230 pages including the

appendix.

[83] Also, the ministry’s index indicates that teleconference information in records 185,

189, and 191 was withheld under section 14(1)(i).

[84] Section 14(1)(i) states:

A head may refuse to disclose a record where the disclosure could

reasonably be expected to,

endanger the security of a building or the security of a vehicle

carrying items, or of a system or procedure established for

the protection of items, for which protection is reasonably

required

[85] The parties resisting disclosure of a record cannot simply assert that the harms

under section 14 are obvious based on the record. They must provide detailed evidence

about the risk of harm if the record is disclosed. While harm can sometimes be inferred

from the records themselves and/or the surrounding circumstances, parties should not

assume that the harms under section 14 are self-evident and can be proven simply by

repeating the description of harms in the Act.²⁰

[86] Parties resisting disclosure must show that the risk of harm is real and not just a

possibility.²¹However, they do not have to prove that disclosure will in fact result in harm.

²⁰Orders MO-2363 and PO-2435.

²¹Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 S.C.R. 23.

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How much and what kind of evidence is needed to establish the harm depends on the

context of the request and the seriousness of the consequences of disclosing the

information.²²

[87] Although the section 14(1)(i) provision is found in the section of the Act dealing

specifically with law enforcement matters, it is not restricted to law enforcement

situations and can cover any building, vehicle or system which requires protection.²³

Representations

[88] The ministry submits that record 195 contains detailed descriptions and

instructions on how to perform data entry in a data management program called

Panorama. The ministry explains that Panorama is a closed system not available to the

public and the disclosure of record 195 could reasonably be expected to endanger the

security and integrity of the system or the ministry’s procedures established for the

protection of personal health information related to immunization held within the

Panorama system.

[89] The ministry cites Order PO-2391 in support of its position that the IPC has found

that information pertaining to computer and operating systems can qualify for exemption

under section 14(1)(i). In Order PO-2391, the IPC found that disclosure of the responsive

records relating to a request for manuals, procedures, guides and directives relating to

the Registrar General’s computer system could reasonably be expected to endanger the

security of the Office of the Registrar’s computer systems and/or operational procedures.

The ministry notes:

Because the system protected a broad range of personal information

collected under the Vital Statistics Act, the IPC was satisfied that protection

of this information is reasonably required to prevent tampering and

unauthorized modification and that disclosure of detailed technical

information about the workings of the system or procedure established for

the protection of information could be expected to lead to harms pursuant

to section 14(1)(i).

[90] The ministry submits that the same rationale applies to the protection of record

195 and protection of the information in the record is necessary to safeguard the personal

health information contained in the system. The ministry submits that disclosure of record

195 could result in knowledgeable persons using the technical information in the record

to manipulate and undermine the integrity of Panorama, thereby disrupting the system’s

ability to conduct population surveillance for vaccine preventable diseases. The ministry

submits that it would also threaten the security of the personal health information

contained in Panorama. The ministry states:

²²Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy

Commissioner), 2014 SCC 31 () at paras. 52-4; Accenture Inc. v. Ontario (Information and Privacy

Commissioner), 2016 ONSC 1616.

²³Orders P-900 and PO-2461.

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If knowledgeable individuals gain access to record 195 once it is disclosed

to the appellant, they could use the information in the record to target

specific data through electronic sabotage or computer attack, thereby

undermining the Panorama system. In addition, if the system is successfully

infiltrated, a person could use the information in record 195 to learn how

to access an individual’s personal health information relating to their

immunization history, thereby undermining the public health unit’s ability to

protect this personal health information from unauthorized access, as they

are required to do under the Personal Health Information Protection Act,

2004 (PHIPA).

[91] Finally, the ministry argues that disclosure of record 195 could reasonably be

expected to also undermine the functionality of Panorama. The ministry notes that it is

important to maintain the integrity of the data in Panorama as inaccurate data would

disrupt its ability to perform population surveillance for vaccine preventable diseases. In

addition, any manipulation of system or its data could interfere with public health units’

ability to correctly assess who is at risk for contracting vaccine preventable diseases and

to hold mass immunization clinics.

[92] The appellant submits that if record 195 is exempt under section 14(1)(i) then she

would expect it to contain actual information about how to log into Panorama including

passwords and URLs. The appellant states, “I submit that just because entry-points to

Panorama may be worthy of protection, does not mean that information about how to

enter certain immunization data into the system is something covered by section

14(1)(i).”

[93] The appellant submits that she does not believe that record 195 contains

information about how to hack into Panorama or how to gain access to the system.

Therefore, she notes that even if Panorama is a system that holds personal health

records, it does not mean that any document that mentions Panorama or the data that it

holds should be exempt under section 14(1)(i). The appellant further argues that the

scenario set out in the ministry’s representations about the possible harm on disclosure

of the information is speculative and the ministry has failed to explain what information

in record 195 could make it easier for individuals to infiltrate the Panorama system.

[94] Finally, the appellant submits that because the ministry initially identified

information in record 195 as not responsive and then later identified the information as

responsive but exempt under section 14(1)(i), the ministry’s claim of the exemption is

suspect and should be scrutinized carefully. The appellant submits that I should carefully

consider whether the withheld information in record 195 could be severed to disclose to

her any information that is not exempt under section 14(1)(i).

Analysis and finding

[95] I find that pages 2 – 236 of record 195 are exempt under section 14(1)(i). While

the ministry submits that these withheld pages contain standards and best practices for

data entry in Panorama, I would more accurately describe these withheld pages as a

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manual on how to use and access Panorama.

[96] I find pages 2 – 236 contain detailed descriptions and instructions on how to access

and use Panorama. Many of the withheld pages include screen shots of the actual system

and how data would appear in the system including an explanation of the type of data to

be entered into specific fields. Based on the highly-specific and technical nature of the

withheld information, I accept the ministry’s submission that disclosure of the withheld

information could reasonably be expected to endanger the security of the Panorama

system and its procedures. Furthermore, I accept that the data to be protected –

immunization information relating to various public health units, is information where

protection is reasonably required.

[97] I sympathize with the appellant’s scepticism of the ministry’s claim of section

14(1)(i) for the hundreds of withheld pages. However, given the level of technical

information and the specific detail of instructions and screen shots of the Panorama

system, I find that the ministry’s claim of section 14(1)(i) for record 195 to be reasonable.

[98] Finally, I considered whether any of pages 2 – 236 could be severed to disclose

information to the appellant. I note for the appellant’s benefit that the instructions and

specifications contained in record 195 do not relate to immunization only but contains

information about how to correctly enter and record data relating to individuals. Based

on my review of the withheld information, I find that it is all exempt under section 14(1)(i)

and cannot be severed.

[99] The ministry also claimed that section 14(1)(i) applies to the withheld

teleconference information in records 185, 189 and 191. The ministry’s representations

do not address the possible harm that could reasonably be expected to occur if this

information is disclosed. Based on my review of the records, it is not clear to me that

disclosure of the teleconference code information could reasonably be expected to

endanger the security of a system or procedure established for the protection of items,

for which protection is reasonably required. Accordingly, I find section 14(1)(i) does not

apply to the withheld information on these records and will order them disclosed.

[100] Accordingly, as I have found pages 2 – 236 of record 195 exempt under section

14(1)(i), I will proceed to consider the ministry’s exercise of discretion in claiming this

exemption below.

Issue E: Did the ministry properly exercise its discretion in claiming sections

13(1) and 14(1)(i)?

[101] The section 13(1) and 14(1)(i) exemptions are discretionary, and permit an

institution to disclose information, despite the fact that it could withhold it. An institution

must exercise its discretion. On appeal, the Commissioner may determine whether the

institution failed to do so.

[102] In addition, the Commissioner may find that the institution erred in exercising its

discretion where, for example: it does so in bad faith or for an improper purpose; it takes

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into account irrelevant considerations; or, it fails to take into account relevant

considerations. In any of these cases, the IPC may send the matter back to the institution

for an exercise of discretion based on proper considerations.²⁴This office may not,

however, substitute its own discretion for that of the institution.²⁵

Representations

[103] The ministry submits that it properly exercised its discretion in claiming sections

13(1) and 14(1)(i) to withhold the records at issue. In exercising its discretion to claim

section 13(1), the ministry submits that it considered:



The importance of protecting the free, full, and frank review of all

policy options and related considerations by ministry staff

The ministry only severed one record in full based on the exemption

Finalized copies of a number of severed records were provided to the

appellant.



[104] In exercising its discretion to claim section 14(1)(i), the ministry submits that it

considered:



The importance of protection personal health information

Public interest in maintaining the integrity of the data stored in

Panorama, considering the system is used to assess who may be at

risk for contracting vaccine preventable diseases



The ministry consistently treats technical records as confidential.

[105] The appellant submits that the ministry has failed to demonstrate that it properly

exercised its discretion in withholding the records at issue under sections 13(1) and

14(1)(i). The appellant submits that the ministry did not provide evidence of its exercise

of discretion nor did it provide an affidavit of its head regarding the factors considered in

exercising its discretion.

[106] The appellant submits that it is evident to her that the ministry used an extremely

broad interpretation of the exemptions when applying the exemptions. The appellant

submits that this is demonstrated in the ministry’s representations and “…shown by the

unusual interpretation suggested for section 14(1)(i).”

[107] The appellant states that the ministry only weighed considerations that favour

keeping information sheltered rather than those factors favouring disclosure. She submits

that the ministry failed to consider the following factors:



The values behind access legislation and the importance of making

information available to the public, such as a citizen’s right to access

to information created and obtained at taxpayer’s expense, and the

need to hold government accountable;

²⁴Order MO-1573.

²⁵Section 54(2).

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

The right to access with respect to legislative amendments to the

ISPA. These amendments impact the right to education. They also

place limits on freedom of religion and conscience by imposing limits

on the right to claim conscientious and religious exemptions; and

The fact that, by the time access decisions were made, the proposed

amendments have been made and implemented and the information

lost at least some of its sensitive nature.

Analysis and finding

[108] I find the ministry properly exercised its discretion in claiming section 13(1) and

14(1)(i) to withhold the records at issue. I find the ministry did not exercise its discretion

in bad faith or that it improperly exercised its discretion in failing to consider those

considerations set out in the appellant’s representations.

[109] While I am sympathetic to the appellant’s argument that it is her belief that the

ministry broadly interpreted the claimed exemptions and this resulted in a large number

of records being withheld from her, I wish to emphasize that the Act also recognizes that

necessary exemptions from the right of access should be limited and specific. There is

nothing improper about the ministry claiming exemptions that it has decided should apply

to the records at issue. Furthermore, I have reviewed the records and the claimed

exemptions and find that the exemptions were applied in a limited and specific manner

given the nature of the withheld information.

[110] Accordingly, I uphold the ministry’s exercise of discretion.

Issue F: Is there a compelling public interest in disclosure of the records that

clearly outweighs the purpose of the section 13(1) exemption?

[111] The appellant submits that there is a compelling public interest in disclosure of the

records that clearly outweighs the purpose of the section 13(1) exemption. Section 23 of

the Act states:

An exemption from disclosure of a record under sections 13, 15, 17, 18, 20,

21 and 21.1 does not apply where a compelling public interest in the

disclosure of the record clearly outweighs the purpose of the exemption.

[112] For section 23 to apply, two requirements must be met. First, there must be a

compelling public interest in disclosure of the records. Second, this interest must clearly

outweigh the purpose of the exemption.

[113] The Act is silent as to who bears the burden of proof in respect of section 23. This

onus cannot be absolute in the case of the appellant because the appellant has not had

the benefit of reviewing the records before making her submissions in support of her

position that section 23 applies. Accordingly, I will consider whether there could be a

compelling public interest in disclosure of the records which clearly outweighs the purpose

- 25 -

of the section 13(1) exemption.²⁶

Representations

[114] The appellant submits that the ministry must bear the burden of proving that there

is not a compelling public interest in disclosure of the records at issue. To that end, the

appellant submits that her access request demonstrates the purpose she sought the

records which was why the government chose to propose the legislation. The appellant

states:

I asked to know what other options the government has considered. I asked

to know about the legal implications of the proposed legislation, including

Charter and Human Rights implications and asked about stakeholders’

involvement and input in the process. I also asked to learn about the cost

and other details.

[115] The appellant submits that she believes it is in the public interest to get as much

information as possible about the issues identified in her request because, she states:

The legislation affects health and the right to attend schools. The legislation

shows what the government’s priorities are. I believe that there is a

compelling public interest in learning why the government chose to address

this particular issue and not other pressing public health issues, such as, for

example, driving under the influence issues, distracted-driving or the

growing number of children with life-threatening food allergies.

[116] The appellant submits that the public has a compelling interest in learning about

government priorities and spending. The public has a right to learn as much as possible

about government’s spending of taxpayer’s money. The appellant submits that it is her

belief that some of the withheld information in records 210, 211 and 214 relate to the

cost of the proposed amendments.

[117] The ministry submits that there is no compelling public interest in disclosure of the

information it has withheld under section 13(1). The ministry acknowledges that there is

public interest in vaccinations – and more particularly their safety. The ministry submits

that the specific information withheld under section 13(1) would not be the information

that would address the public interest in vaccinations. Furthermore, the withheld

information wold not “inform the citizenry about the activities of their government or its

agencies” or add to the information the public “has to make effective use of the means

of expressing public opinion or to make political choices.”

[118] The ministry submits that a significant amount of information has already been

disclosed, specifically, the finalized media products on Immunization 2020 were released

to the public. The ministry notes that the draft media products would not better inform

the public about activities of government; all of the relevant information from the drafts

²⁶Order P-244.

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is in the finalized version.

Analysis and Finding

[119] In considering whether there is a public interest in disclosure of the record, the

first question to ask is whether there is a relationship between the record and the Act’s

central purpose of shedding light on the operations of government.²⁷Previous orders

have stated that in order to find a compelling public interest in disclosure, the information

in the record must serve the purpose of informing or enlightening the citizenry about the

activities of their government or its agencies, adding in some way to the information the

public has to make effective use of the means of expressing public opinion or to make

political choices.²⁸

[120] Based on my review of the information withheld under section 13(1) and the

parties’ representations, I find that section 23 does not apply. I accept the appellant and

the ministry’s position that there is a public interest in vaccines and immunization policies

undertaken by the government. I further accept the appellant’s position that there is a

public interest in the government’s decision to pursue immunization policies over other

public health concerns. I accept that the choice of the government to pursue one policy

over another is an issue of accountability for the citizens in this province. However, I find

that the public interests identified by the appellant are not compelling and the appellant

has not established that the public interests she has identified are those that rouse strong

interest or attention.²⁹

[121] However, even if I found there was a compelling public interest, I agree with the

ministry’s position that the information withheld under section 13(1) would not serve the

purpose of shedding light on the public interest identified by the appellant. The

information withheld under section 13(1), relates to the comments and advice of ministry

staff regarding draft documents. I find that disclosure of the withheld information would

not serve the purpose of enlightening the appellant on the government’s decision to

pursue immunization policies over other public health matters.

[122] Accordingly, I find that section 23 does not apply to the information withheld under

section 13(1).

Issue G: Did the ministry conduct a reasonable search for records?

[123] Where the appellant claims that additional records exist beyond those identified

by the institution, the issue to be decided is whether the institution has conducted a

reasonable search for records as required by section 24.³⁰

[124] A reasonable search is one in which an experienced employee knowledgeable in

the subject matter of the request makes a reasonable effort to locate records that are

²⁷Orders P-984 and PO-2607.

²⁸Orders P-984 and PO-2556.

²⁹Order P-984.

³⁰Orders P-85, P-221 and PO-1954-I.

- 27 -

reasonably related to the request.³¹The IPC will order a further search if the institution

does not provide enough evidence to show that it has made a reasonable effort to identify

and locate all of the responsive records within its custody or control.³²

[125] The Act does not require the institution to prove with certainty that further records

do not exist. However, the institution must provide enough evidence to show that it has

made a reasonable effort to identify and locate responsive records;³³that is, records that

are "reasonably related” to the request.³⁴

[126] Although a requester will rarely be in a position to indicate precisely which records

the institution has not identified, they still must provide a reasonable basis for concluding

that such records exist.³⁵

The ministry’s representations

[127] The ministry provided representations in support of its search.

[128] The ministry submits that it searched multiple holdings including network shared

drives, Microsoft Outlook e-mail folders, and physical hard copy files. Due to the batching

of the appellant’s requests, records were separated into three categories and identified

as responsive to one of the three batches. The ministry submits that many of the records

were responsive to more than one of the requests.

[129] The ministry states that for electronic records, searches were conducting using the

following broad search terms. The ministry notes that its search terms were not limited

to the following:



Immunization [*][?]

“Immunization of School Pupils Act”

“ISPA”

Immunization rate[s]

Ontario immunization rate[s]

Vaccination coverage rate[s]

Reduce vaccine hesitancy

Vaccine hesitan[*][?]

Strength AND “ISPA”

Weakness AND “ISPA”

ISPA amendment[s]

ISPA education[?]

Education session[*][?]

Education module[*][?]

³¹Orders M-909, PO-2469 and PO-2592.

³²Order MO-2185.

³³Orders P-624 and PO-2559.

³⁴Order PO-2554.

³⁵Order MO-2246.

- 28 -



“Public health unit” education module AND vaccine[*][?]

[130] The ministry clarified that where appropriate, wildcard searches were used for

Shared Drive searches in Windows Explorer (e.g. immuniz? And immuniz*). And where

appropriate, partial string searches were used for MS Outlook searches under the Field,

Condition, and Value tabs (e.g. including ISPA under the Value heading).

[131] The ministry submits that the Assistant Deputy Minister’s office identified the

following program areas and staff whose records were searched for responsive records:



Director, Health Protection and Surveillance Policy and Programs

Branch (HPSPPB)

Manager, Assistant Deputy Minister’s Office, HPSPPB, Population and

Public Health Division

Immunization Policy and Programs Unit

o

Senior Program/Policy Advisor

o

Senior Nurse Consultant (three staff members)

The appellant’s representations

[132] The appellant submits that she was not contacted to clarify her request and while

the ministry made two suggestions to narrow the request, she did not accept those

suggestions. The appellant states that the ministry interpreted her request literally and

partially and that there were certain deficiencies in search terms and the staff members

whose record holdings were searched.

[133] Regarding item 1 in this batch of her request, the appellant submits that the

ministry responded literally and states:

For example, the first issue covered by batch 00081 is my request for

records which discuss “solutions employed by or considered by other

jurisdictions” to increase immunization rates or reduce hesitancy. I know

that, prior to choosing a solution such as the Education Session, the

Government typically conducts research into solutions employed by other

jurisdictions. I assume that, prior to choosing the Education Session

solution, the ministry had researched solutions in other Canadian provinces,

in various U.S. states and in other western countries. I expected to see

records that discuss rules in other Canadian provinces. I also expected to

find records discussion the details of solutions employed by the state of

Oregon and the state of Washington (States that have their own education

session) Mississippi, California, West Virginia (states that have stringent

immunization exemptions), New York and Australia, to name a few. The

ministry knows what jurisdictions it has researched in preparation for ISPA

amendments and should have been able to search the specific names of all

the jurisdictions (provinces, states and countries) that it had looked into.

[134] The appellant suggests the following searches that should have been used to

- 29 -

locate the information she was looking for:



A search that combines the term “education session” and names of

specific jurisdictions (Oregon, Washington, New York, etc.) which the

Assistant Deputy Minister and/or her senior staff knew that they

researched.



Also a search that combines names of specific jurisdictions

researched together with terms re “increase vaccination” or

“increase immunization” or “reduce hesitancy”

[135] The appellant submits that these searches were not conducted and notes that the

records she received included very few references to some of these jurisdictions. The

appellant submits she was looking to get records containing a detailed discussion and

comparison but these records were not provided. The appellant submits that given the

way the ministry conducted its searches she is not surprised that responsive records were

not located.

[136] The appellant submits that when she asked for records “which consider the

strengths and weaknesses of proposed amendments to ISPA”, the ministry should have

included the following phrase strengths or weaknesses together with a term that relates

to reporting to the medical health officer (or to Public Health). The appellant submits that

in not including any terms that discuss this issue, the ministry unilaterally narrowed the

scope of her request.

[137] The appellant submits that the search terms used by the ministry to conduct its

computer searches was deficient and states:



It appears that the terms immunization and vaccination were not

used interchangeably. For example, there was a search of

“vaccination coverage rates” but no equivalent search of

“immunization coverage rates”. (only Ontario immunization rates

was search[ed])



It does not appear that a search for increase and vaccination rates

was conducted. Only a search for “reduce vaccine hesitancy” was

performed.



I would expect the search of the root-word: immuniz* and vaccine*

(instead of only immunization)

Also would expect to see search terms re “Bill 87”, “Bill 198”.

[138] The appellant notes that only the record holdings of six staff members were

searched and others should have been asked to search their records as well other

individuals noted in records the appellant received. The appellant submits that because

the ministry did not provide its representations by affidavit (something requested in the

Notice of Inquiry) it has failed to establish that it conducted a reasonable search.

- 30 -

The reply and sur-reply representations

[139] In reply to the appellant’s representations, the ministry submits that instead of

interpreting the appellant’s request “too literally” it conducted a search based on the

actual wording of her request as it is required to do.

[140] Regarding the “jurisdictional scan records”, the ministry states:

…the appellant is suggesting the ministry’s jurisdictional research, rather

than its search for records, was inadequate. The ministry submits that it is

not required to explain why it relied on certain records to inform its decision

to amend the ISPA, and the appellant’s “assumptions” and “expectations”

about what records/information should have been considered are not a valid

basis for arguing that our search was not reasonable.

[141] The ministry also submits that it did locate records responsive to this aspect of the

appellant’s request (i.e. “records which discuss solutions employed or considered by other

jurisdictions in order to increase immunization/vaccine coverage”) but those records were

submitted to Cabinet as they formed part of the Cabinet submission that accompanied

the proposed amendments to the ISPA. Consequently, they were not disclosed to the

appellant under section 12(1) of the Act.

[142] The ministry submits that regarding the search terms set out by the appellant in

her representations, they rely on their earlier submissions regarding the search terms

they used.

[143] The appellant was given a final opportunity to respond to the ministry. The

appellant states:

…the ministry admits that it has records discussing solutions employed by

other jurisdictions but somehow these records discussing other jurisdictions

“formed part of the Cabinet submission.” Is there truly no independent

report that simply reviews the results of research into solutions by other

jurisdictions. Are there no records obtained from other jurisdictions which

outline their solutions? I find that unlikely.

[144] The appellant submits that a few of the records disclosed to her contain brief

references to solutions in other jurisdictions including California. The appellant argues

that this is shows that the ministry was aware of the solutions employed by other

jurisdictions and that this knowledge likely came from researching the issue. The

appellant submits that this is evidence that better, more detailed records of solutions

from other jurisdictions must exist in the ministry’s record holdings and have not been

disclosed to her.

[145] Finally, the appellant submits that she has a general knowledge of the way our

government works when it develops new legislation. As part of this knowledge, the

appellant submits that she is aware of the practice that, prior to developing new

- 31 -

legislations, a ministry would research solutions employed by other jurisdictions. This is

exactly why the appellant asked for records discussing possible solutions in other

jurisdictions. The appellant reiterated her position that the ministry failed to meet its

burden that it conducted a reasonable search because it failed to provide its search

representations in affidavit form.

Analysis and finding

[146] Based on my review of the parties’ representations, I find that the ministry’s search

for responsive records was reasonable.

[147] The appellant is correct that I specified in the Notice of Inquiry that the ministry’s

representations should be provided in an affidavit form and the affidavit should have been

signed by the person or persons who conducted the actual search. However, on the basis

of the ministry’s representations and the substance and number of records at issue in this

appeal, I am prepared to accept the ministry’s representations as sufficient evidence to

establish the reasonableness of its search. In Order MO-1450, the adjudicator addressed

the necessity of evidence being provided in affidavit form and stated the following:

As the parties are aware, the adjudicative process of this office ordinarily

involves the review of written submissions rather than an oral hearing.

Generally, parties to an appeal are not required to and do not submit

affidavit evidence with their submissions. There may be cases where the

submission of affidavit evidence is preferable and even essential to the fact-

finding process, but in many appeals, including those in which section 10(1)

of the Act is raised, written representations have been found to contain the

evidence required to support the application of the exemption under

consideration.

[148] I agree with this approach and will apply it in this appeal. In certain circumstances,

affidavit evidence may be preferable; however, in consideration of the evidence that was

provided by the ministry and the hundreds of pages of records that were located as a

result of its searches, this is not one of those cases. I have no reasonable basis to

disregard the detailed and comprehensive representations made by the ministry about its

search.

[149] The appellant has provided two main reasons for believing additional responsive

records may exist: the fact that the search did not yield more detailed records from other

jurisdictions and her belief that the search terms used by the ministry to conduct its

search were deficient. I find that neither of these reasons establish that additional

responsive records should exist.

[150] I agree with the ministry that the appellant takes issue with the ministry’s lack of

research relating to other jurisdictions and that this does not form a reasonable basis that

other responsive records should exist. I confirm, for the appellant’s information, that

records I reviewed under section 12(1) contained references to other jurisdictions. The

fact that the records disclosed to the appellant do not contain information from other

- 32 -

jurisdictions is not a basis for my finding that the ministry’s search was unreasonable. To

be clear, the appellant’s general assumptions about the work the ministry should have

done, including researching immunization practices in other jurisdictions, is not a

reasonable basis for a finding that the ministry’s search was unreasonable.

[151] Lastly, I find the ministry’s search terms to be adequate and reasonable in the

circumstances. I find that there is little difference between the search terms suggested

by the appellant and the search terms actually used by the ministry. Given the hundreds

of pages identified by the ministry as responsive, I am satisfied that the ministry’s search

terms were appropriate and sufficient to identify records responsive to the appellant’s

request.

[152] Accordingly, I find the ministry’s search to be reasonable.

ORDER:

1.

I order the ministry to disclose the emails in records 27 and 164 and the withheld

information in records 185, 189 and 191 by providing the appellant with a copy of

these emails by September 19, 2022.

2.

3.

4.

I uphold the ministry’s decision with respect to the remaining records.

I uphold the ministry’s search as reasonable.

In order to verify compliance with order provision 1, I reserve the right to require

the ministry to provide me with a copy of those records order disclosed to the

appellant.

Original Signed by:

Stephanie Haly

Adjudicator

August 17, 2022

- 33 -

APPENDIX

Record

Page

Description

Exemption

claimed

Number

number

1

5

20

18

Email

19(a)

Cabinet record – email with attached

LRC³⁶submission (email summarizes

submission and update on revisions) – IPC

12(1)

6

18

20

8

Cabinet record – email with attached LRC

submission (email summarizes

submission)

12(1)

13

14

16

17

Cabinet record – email with attached slide 12(1)

deck (ISPA amendment) (email

summarizes next steps) – IPC

Cabinet record – email includes legal

advice; email refers to updating LRC

submission – IPC

12(1) and

19(a)

37

5

Cabinet record – email with attached LRC

submission (email summarizes submission

amendment) - IPC

12(1)

Cabinet record – email exchange with

ministry employees regarding LRC form -

IPC

12(1)

³⁶Legislation and Regulations Committee of Cabinet (LRC)

- 34 -

18

20

24

12

Cabinet record – email with attached slide 12(1)

deck (ISPA amendment) (email

summarizes next steps) - IPC

Cabinet record – email with attached LRC

briefing note (email summarizes

attachment and next steps)

12(1)

21

26

27

28

29

30

31

33

17

20

13

3

Cabinet record – email with attached LRC

approval form (email details attachment)

Cabinet record (pages 7 – 20) – email

12(1) and

19(a)

containing legal advice and attachment

Cabinet record – email with attached slide 12(1) and

deck (technical briefing) 19(a)

Cabinet record – email exchange including 12(1) and

legal advice

19(a)

24

16

13

4

Email exchange

19(a)

Cabinet record – email with attached slide 12(1)

deck (ISPA amendment)

Cabinet record – email with attached slide 12(1)

deck (ISPA amendment)

Cabinet record – email exchange

regarding questions about LRC submission

- IPC

12(1)

- 35 -

34

3

Cabinet record – email exchange between 12(1)

legal counsel and ministry staff regarding

submission approval

36

39

7

Email with attached information note –

12(1) and

email contains legal advice

19(a)

19

Cabinet record – email with attached

information note (email summarizes

changes); also possible request for legal

advice

12(1)

46

48

26

17

Cabinet record – email with attached LRC

12(1)

approval form (email discusses changes)

Cabinet record – email with attached LRC

approval package (email provides

summary, instructions, and direction)

67

25

Cabinet record – email with attached LRC

12(1) and

approval and briefing note (email provides 19(a)

summary and update)

68

70

95

43

36

24

Email and attached briefing note, slide

12(1) and

deck, option chart – IPC

13(1)³⁷

Email and attached LRA approval form

12(1)

Email

Not

responsive

³⁷Records are exempt under both section 12(1) and 13(1).

- 36 -

96

6

Email with attached questions and

responses

12(1)

13(1)

12(1)

120

122

123

126

128

129

130

131

133

134

14

7

Email with attached briefing note

Email and attachment

18

19

11

46

23

33

15

11

Email and attachment

Email and attached slide deck

Email and attached document

Email and attached slide deck

Email and attached document

- 37 -

135

138

139

4

Email and attached revised minutes

12(1)

80

8

Email with slide deck and Cabinet

submission

Cabinet record; not reviewed as IPC not

provided with a copy of the record; not

referred to in the order

140

141

142

143

144

145

146

15

5

Email with attached Deputy Minister’s

12(1)

briefing slide deck

Email with attached Minister’s speaking

notes for committee meeting

20

12

30

94

21

Email with attached Committee submission 12(1)

Email with attached Minister’s Questions

12(1)

and Answers for Cabinet Submission

Email with attached documents for review 12(1) and

13(1)

Email with attached project plan

12(1)

Cabinet record; not reviewed as IPC not

provided with a copy of the record; not

referred to in the order

12(1)

- 38 -

147

148

149

150

151

152

154

155

156

157

158

99

15

21

20

5

Email with attached Cabinet Submission

for committee

12(1)

Email with attached questions and

answers

Email with attached document for Cabinet 12(1)

submission

Email with attached communication plan

for Cabinet submission

12(1)

13(1)

12(1)

13(1)

12(1)

Email with attached plan

Email with attached questions and

answers

22

19

17

30

3

Email with attached documents

Email with attached document

Email with attached slide deck for

committee presentation

Email with attached meeting minute

- 39 -

160

161

162

163

164

166

167

168

169

170

173

24

8

Email with attached information note

12(1)

Email with attached briefing note for

Cabinet Submission

32

13

47

4

Email with attached slide deck

Email

Not

responsive

Email with attached technical briefing slide 12(1)

deck

Email with attached Information note

Email with attached briefing note

Email with attached document

12(1)

10

13

23

8

Email with attached briefing note for

committee meeting

Email with attached information note

22

Email with attached briefing note

- 40 -

183

184

185

187

189

190

191

192

193

195

200

19

11

7

Email with attached document

12(1)

Email with attached technical briefing slide 12(1)

deck

Email chain

14(1)(i)

11

3

Email with attached letter of agreement

Email with attached document

Email

21(1)

14(1)(i)

25

13

14

9

Not

responsive

Email with attached document

Email with attached document (brief)

Email with attached document

Email with attachment document

Email chain

14(1)(i)

12(1)

236

7

14(1)(i)

13(1)

- 41 -

202

204

205

208

210

211

212

213

214

216

217

3

Email

Not

responsive

18

8

Email with attached committee submission 12(1)

Email with attached briefing note

Email with attached letter of agreement

Email with attached document

Email chain

12(1) and

19(a)

8

21(1)

7

13(1)

12(1)

7

2

89

9

Email with attached document

19(a) and

21(1)

13(1)

12(1)

21

3

Email with attached committee approval

form and draft amendment

Email chain

- 42 -

227

230

236

239

243

244

245

246

251

254

255

30

6

Email and attached package

12(1)

Email with attachment

Not

responsive

6

Email with attached document

Email with attached Cabinet submission

Email with attached document

Email

12(1)

20

35

2

11

3

Not

responsive

3

Email with attached document

12(1)

37

21

Email with attached draft briefing, draft

assessment form and draft amendment

Email with attached slide deck

- 43 -

256

257

15

20

Email with attached draft amendment

12(1)

Email with attached draft amendment