Future access to information could be at stake, as top court hears Doug Ford's mandate letter appeal

The Supreme Court of Canada will hear the Ontario government's appeal to try and keep Premier Doug Ford's mandate letters secret today. 

Mandate letters traditionally lay out the marching orders a premier has for each of their ministers after taking office — and have been routinely released by governments across the country.

Ford's government, however, has been fighting to keep his mandate letters from the public since shortly after he was first elected nearly five years ago. CBC Toronto filed a freedom of information request for the records in July 2018. The government denied access in full, arguing the letters were exempt from disclosure as cabinet records.

But Ontario's former information and privacy commissioner disagreed and ordered the government to release the letters in 2019. The province has since lost appeals of that decision in Divisional Court and at the Ontario Court of Appeal. Ford's government was granted leave to appeal to Canada's top court — its final option to prevent disclosure — last May.

Ontario's Freedom of Information and Protection of Privacy Act states that any records that "would reveal the substance of deliberations of the executive council or its committee" are exempt from public disclosure under what's commonly referred to as the cabinet record exemption.

The interpretation of that exemption is at the heart of the mandate letter case and could have a profound impact on the future of public access to information in Canada that goes far beyond the letters themselves. 

The privacy commissioner's initial decision, and all of the court rulings so far in this case, have supported a narrower interpretation of the boundaries of cabinet secrecy, which differentiates between deliberations and their results. But Ontario's interpretation is broad and could exempt any records falling under the umbrella of a topic cabinet discussed or might discuss in the future. 

Several organizations intervening at the Supreme Court argue that if the Ontario government's broad interpretation of what should be considered a cabinet record is adopted, it would vastly expand the scope of records the government can keep secret from the public in a way that would undermine democracy and impair the public's ability to hold the government accountable. 

"It's like putting up a huge shield around what the government is doing and saying the public has no right to know any of that," said James Turk, director of the Centre for Free Expression at Toronto Metropolitan University.

"If the government of Ontario wins on this, it will turn the cabinet confidences exclusion into a black hole in which, just an enormous amount of material relevant to the public understanding what governments are doing can be properly excluded from access to information."

The Centre for Free Expression, Canadian Journalists for Free Expression, The Canadian Association of Journalists and Aboriginal Peoples Television Network are intervening in the case as a group. They're arguing against the government's interpretation of the legislation, which they say will lead to "absurd results" including keeping secret "any record that revealed that a particular topic had been identified by the premier as a policy priority." 

The Canadian Civil Liberties Association and B.C. Freedom of Information and Privacy Association are also intervening with similar veins of arguments supporting a narrower interpretation of the exemption. 

Ontario's submissions argue the information and privacy commissioner took a "narrow and restrictive approach" interpreting "substance of deliberations" which amounts to "an unwarranted incursion into the functioning of cabinet."

"This appeal will be this honourable court's first opportunity to address the scope of a cabinet records exemption in a provincial freedom of information statute," said the province in its factum.