FOIPP Act Policy and Procedures Manual

Interpretation Note 3 (Section 12(2)(a)):

Interpretation Note 4 (Section 12(2)(b)):

Interpretation Note 5 (Section 12(2)(c)):

"Purpose"

 Background explanations or analysis

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

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

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

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

Examples

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

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

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

Decision has been made public 

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

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

Examples

• a formal press conference;

• a statement by a minister or senior ministry executive;

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

• a letter from a minister to a newspaper.

Decision has been implemented 

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

Example:

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

Example

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

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

See "Calculation of Time"

LOCAL PUBLIC BODY CONFIDENCES  - 12(3) and 12(4)

PROCEDURE

1. Determine the age of the record. See Calculation of Time. If the requested record has been in existence for 15 or more years, this exception does not apply (paragraph 12(4)(b)) and the record must be released unless another exception applies.

2. Preliminary Examination

   
   

3. Line by Line Review
   
   Determine whether the draft or the subject matter of the deliberations which would be revealed has been considered in a meeting open to the public. If so, this exception does not apply and the record must be released, unless another exception applies [paragraph 12(4)(a)].

4. Exercise of Discretion

5. Severance

LOCAL PUBLIC BODY CONFIDENCES  - 12(3) and 12(4)

INTERPRETATION

Records falling within the paragraphs 12(4)(a) or (b) are not covered by this exception, and must be released to applicants, unless another exception applies.

Interpretation Note 6 (Section 12(3)(a)):

 Draft of a resolution, bylaw or other legal instrument 

"Draft" means that the resolution, bylaw or other legal instrument or bill in question has not yet been finalized for consideration by the local public body. 

This applies to entire draft legal instruments or private Bills and to individual sections or phrases that are part of a draft.

Example

• A preliminary version of a zoning bylaw drafted by the municipal planning department. 

"Resolution" means a formal expression of the opinion or will of an official body or public assembly, adopted by vote. The term is usually employed to denote the adoption of a motion, the subject matter of which would not properly constitute a statute, such as a mere expression of opinion; an alteration of the rules; a vote of thanks or of censure, etc. [Black's]. 

Example

• A policy analyst for a school district drafts a resolution. The analyst makes several revisions to the resolution before submitting it to the Board of School Trustees for consideration. All versions other than the final version submitted to the Board may be withheld under this section. The version that is submitted to the Board may not be withheld. 

Generally, "bylaw" means a rule or resolution adopted by a corporation to regulate its operations [DCL]. As it applies to local government bodies, "bylaw" means a Regulation made by the council or board and formalized in a document known as a bylaw. 

"Other legal instrument by which the local public body acts" means any formal or legal document in writing, other than a resolution or bylaw, which relates to the internal governance of the local public body or with the Regulation of its area of jurisdiction. 

Example

Rules established by the Law Society of British Columbia. 

• Drafts of resolutions, bylaws or other legal instruments by which the local public body acts which will govern the conduct or actions of a local public body may be withheld, unless the provisions of subsection 4 apply. 

Example

• An initial draft of a school board Regulation regarding curriculum requirements may be withheld under this section. 

Private Bill

"Private Bill" means a bill relating to matters of particular interest or benefit to an individual or group.

Example

• Vancouver Charter
• Resort Municipality of Whistler Act 

Interpretation Note 7 (Section 12(3)(b)):

The substance of deliberations

"Substance"

"Deliberation" means the act of deliberating, the act of weighing and examining the reasons for and against a contemplated act or course of conduct or a choice of acts or means [Black's].

The following are some of the types of records that are presumed to reveal the substance of deliberations of a local public body's elected officials or governing body or a committee of the governing body. 

Note that in the following examples, subsection 12(3) would apply only if the subject of the deliberations is one of the matters specified as those which may be considered in camera either in another Act or in a Regulation under the Freedom of Information and Protection of Privacy Act. [For an alternative interpretation of subsection 12(3), see the note following the interpretation of the phrase "If an Act or a Regulation under this Act authorizes the holding of a meeting in the absence of the public."]

Examples

• An agenda, minute or other record that documents the matters addressed by the elected officials, governing body or committee of the governing body; e.g., minute of a meeting of the Vancouver Police Board which reveals the substance of discussions of a personnel issue at a recent board meeting. 
  
  

• A letter from an elected official that relates to the discussion or consideration of an issue or problem, or that reflects a decision that has not yet been made public; e.g., a letter from the Chair of a school board to the school trustees summarizing a recent decision of the Board which has not yet been made public.
   

• A briefing note or submission placed before the elected officials, governing body or one of its committees. 
  
  

• A briefing note from the City Clerk to Council concerning a matter that will be/is being considered by the council

Meeting of its elected officials or of its governing body or a committee of its governing body

"Meeting" means an assembly or gathering at which the business of the local public body is considered. 

"Elected officials" means those people elected by the constituents of the local public body to conduct the business of the local public body. 

"Governing body" means the assembly of persons who are responsible for the administration of the local public body. 

"Committee of its governing body" means a group of people designated by the governing body of the local public body who have been designated to consider a particular issue or subject matter. A committee may be composed of elected officials, members of the local public body and/or other persons designated by the governing body. 

If an Act or a Regulation under this Act authorizes the holding of a meeting in the absence of the public

"Act" means a statute of British Columbia, and does not include any Regulations, rules or bylaws under a statute.

"Regulation under this Act" means a Regulation under the Freedom of Information and Protection of Privacy Act. 

A public body may withhold a record that reveals the substance of deliberations at an in camera meeting where there is express authorization in an Act or in a Regulation under the Freedom of Information and Protection of Privacy Act that allows that meeting in the absence of the public and that specifies the matters that may be discussed at the meeting. This interpretation of paragraph 12(3)(b) is consistent with government's stated intention in drafting the in camera provisions of the Act. 

Information from an in camera meeting may not be withheld under the authority of an Act that permits meetings to be held in the absence of the public without specifying the matters that may be discussed, or under the authority of an Act that merely provides a power to make Regulations, bylaws or rules allowing for meetings in the absence of the public or regarding the general conduct of meetings. 

The Regulation under paragraph 76(2)(l) of the Freedom of Information and Protection of Privacy Act provides authority for the application of paragraph 12(3)(b) in cases where a local public body's governing Act does not do so. It is expected that the in camera provisions of other Acts governing local public bodies will be reviewed and amended to specify matters that may be discussed in camera. 

Note: An alternative interpretation of paragraph 12(3)(b) would permit a local public body to withhold information from an in camera meeting where another Act authorizes meetings in the absence of the public without specifically listing matters that may be discussed at such meetings. 

Examples

• The Police Act explicitly authorizes the holding of meetings in the absence of the public to discuss specified matters. The minutes of an in camera meeting of a Police Board to consider a matter specified in the Police Act may be withheld under paragraph 12(3)(b). 
  
  

• The School Act and the Municipal Act authorize the holding of meetings in the absence of the public, but do not specify the matters that may be considered at those meetings. 
  
  

• The University Act gives the university board of governors the power "to make rules for the meetings of the board and its transactions." In this case, the Act does not authorize that meetings be held in the absence of the public, but merely allows the board to make rules regarding this matter. 
  
  

• Local public bodies governed by the University Act, the Municipal Act or the School Act may not withhold information that would reveal the substance of deliberations of an in camera meeting under the authority of their own Act. They may, however, use paragraph 12(3)(b) to protect such information if the subject is one of the matters specified in the Regulation under paragraph 76(2)(l) of the Freedom of Information and Protection of Privacy Act. [For an alternative interpretation of section 12(3), see the note preceding these examples.] 

Other exceptions may apply to information in a record of an in camera meeting.

Absence of the public 

The "public" means the public at large, not simply the members of the local public body who are not elected officials, members of the governing body or members of a committee under the governing body. 

Example

• A meeting open to the members of the College of Teachers, but not to the public at large, is a meeting held in the absence of the public.
  
  

• A meeting open to the public, which no members of the public happen to attend, is not a meeting held in the absence of the public. 
  
  

• A meeting which may be held in camera under the School Act, but to which the public is nevertheless invited, is not a meeting held in the absence of the public.
  
  

• A meeting which may be held in camera under the Local Government Act, but to which certain members of the public are invited to discuss sensitive issues that pertain to their property or other rights, is a meeting held in the absence of the public.

Interpretation Note 8 (Section 12(4)):

Has been considered in a meeting open to the public 

Where the draft of the resolution, bylaw, other legal instrument or private Bill or the subject matter of the deliberations has been considered during a meeting open to the public, subsection 12(3) provides that it must be disclosed. 

A draft has been "considered" where it has been the subject of discussions by members of the local public body. 

A meeting "open to the public" means a meeting from which the local public body has not excluded the public. Where a local public body does not explicitly exclude the public from a meeting, that meeting is presumed to be open to the public.

That has been in existence for 15 or more years 

See "Calculation of Time".

Examples

• If a record was created on May 15, 1981, it would be 15 years old on May 15, 1996.
   
• The minutes of an in camera meeting of a municipal council, the subject matter of which has never been considered in a meeting open to the public, and is 15 years and 1 day old, would be released (unless other exceptions, such as the third party business exception, applied.)

SECTIONAL INDEX OF COMMISSIONER'S ORDERS

For orders organized by the Act's section numbers, Click here.