FOIPP Act Policy and Procedures Manual

Summary Section Reference Policy Procedure Interpretation Sectional Index of Commissioner's Orders

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

Section 13 is intended to allow full and frank discussion of policy issues within the public service, preventing the harm which would occur if the deliberative process were subject to excessive scrutiny.

SECTION REFERENCE

Section 13 of the Freedom of Information and Protection of Privacy Act

13 (1) The head of a public body may refuse to disclose to an applicant information that would reveal advice or recommendations developed by or for a public body or a minister.

(2) The head of a public body must not refuse to disclose under subsection (1)

(a) any factual material,

(b) a public opinion poll,

(c) a statistical survey,

(d) an appraisal,

(e) an economic forecast,

(f) an environmental impact statement or similar information,

(g) a final report or final audit on the performance or efficiency of a public body or on any of its programs or policies,

(h) a consumer test report or a report of a test carried out on a product to test equipment of the public body,

(i) a feasibility or technical study, including a cost estimate, relating to a policy or project of the public body,

(j) a report on the results of field research undertaken before a policy proposal is formulated,

(k) a report of a task force, committee, council or similar body that has been established to consider any matter and make reports or recommendations to a public body,

(l) a plan or proposal to establish a new program or to change a program, if the plan or proposal has been approved or rejected by the head of the public body,

(m) information that the head of the public body has cited publicly as the basis for making a decision or formulating a policy, or

(n) a decision, including reasons, that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of the applicant.

(3) Subsection (1) does not apply to information in a record that has been in existence for 10 or more years.

POLICY

1. Section 13 serves to protect the open and frank discussion of policy issues within the public service, and to that end may be applied to information that would reveal advice or recommendations developed by or for a public body or a minister.

Interpretation Note 1

2. Public bodies must exercise discretion when applying section 13(1), at each instance where information that reveals advice or recommendations is identified.

3. Section 13(1) may be applied to information that reveals advice or recommendations created or submitted by a consultant or other service provider to the public body or minister.
   

4. Information or records within the scope of section 13(2) cannot be withheld under section 13(1).

Interpretation Notes 2 through 17

5. Information that reveals advice and recommendations developed by or for a public body or a minister, and related to but appearing separately from any of the information or records identified in section 13(2), would be covered by section 13(1).

Interpretation Note 8

PROCEDURE

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

2. Preliminary Examination
   
   

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

4. Conduct a line by line review to identify the actual information that would reveal advice or recommendations.
   
   

5. See the exercise of discretion

6. Severance

INTERPRETATION

Interpretation Note 1 (Section 13(1)):

"Developed by or for" means the advice or recommendations must have been created either 1) within the public body, or 2) outside the public body but for the public body (for example, by a service provider or stakeholder). 

Section 13 could be applied in various circumstances, for instance if:

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

Examples

The following might be information that would reveal advice or recommendations:

• the provision of counsel or opinion in a decision note;
   
• the recommendations portion of a briefing note prepared for a minister or ministry executive;
  
  
• a portion of text in a report prepared for a public body which provides suggested wording for regulations; and
  
  
• a draft letter prepared for a minister.
   
• advice or recommendations developed in briefing notes, decision notes, or any subsequent reports.

When options are listed for a minister or a public body, the alternatives or options can be characterized as recommendations.  In addition, the implications that accompany the options can also be protected under section 13(1) as advice.

A public body cannot assume that simply labelling information “advice” or “recommendations” will mean that information under this title can be withheld under section 13(1).  The public body must still establish whether information under such a heading qualifies for protection under section 13(1) or any other exception. 

The fact that a record is a draft does not necessarily mean that all of it can be withheld under section 13(1).  The usual principles apply, meaning that a public body can withhold only the information in the draft that actually would reveal advice or recommendations within the meaning of the section.

Sometimes a public body will prepare a proposed draft of a report, letter, or other document to be provided for a decision by the decision maker for the public body.  In those cases some or all of the information in the draft (or in earlier versions of that same draft) might be withheld if disclosing it would reveal advice or recommendations as to a course of action.  In other cases drafts might be prepared as part of the public body's day-to-day activities but they are no intended for a decision maker. Context will be important for public bodies making this determination.

Example

• Staff prepare a draft letter for a minister to respond to an inquiry received from a member of the public.  The draft letter is sent to the minister but she decides not to accept the recommended approach the letter has taken and instead rewrites the letter.  In this case information in the draft may be severed as it reveals advice or recommendations to the minister.

Interpretation Note 2 (Section 13(2)):

Public bodies are encouraged to consider the routine release of information that is specifically excluded from coverage of the advice and recommendations exception by section 13(2).  However, routine release would occur only if there were no other privacy or confidentiality concerns.

Interpretation Note 3 (Section 13(2)(a)):

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

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

Examples

• A draft of an audit report includes an evaluation of management practices. The author's assessment of the public body is based on factual material regardless of whether the public body agrees with the assessment. The information that reveals the author's recommendations may be excepted under section 13(1), but the background factual material upon which the recommendations are made cannot be withheld under this section. Other exceptions, however, may apply.
   
• The discussion portion of a minister's briefing note contains statements of fact. These statements may be withheld under section 13(1) if they would allow someone to accurately infer information that qualifies as advice or recommendations.

The British Columbia Court of Appeal has indicated that “advice”:

…should be interpreted to include an opinion that involves exercising judgment and skill to weigh the significance of matters of fact on which a public body must make a decision for future action.  (College of Physicians of B.C. v. British Columbia (Information and Privacy Commissioner) 2002 BCCA 665 at 113.)

While section 13(1) may be applied in circumstances described by the Court of Appeal, public bodies are reminded that factual material cannot be withheld under section 13(1).

Interpretation Note 4 (Section 13(2)(b)):

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

Example

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

The public opinion poll might include facts, methodology, data, analysis, findings, and conclusions.  These would form part of the poll and could not be withheld under section 13(1). Other exceptions may apply to the polling information.

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

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

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

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

Interpretation Note 5 (Section 13(2)(c)):

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

Examples

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

• A public body produces a statistical survey which analyzes mortality rates in automobile accidents in the Greater Vancouver area for a specific time period. Advice, based on the survey results, is sent to the public body’s head office. The survey methodology and data, questions and survey analysis could not be withheld under section 13(1) and would be released, unless another exception applies.

The statistical survey might include facts, methodology, data, analysis, findings, and conclusions.  These would form part of the survey and could not be withheld under section 13(1). Other exceptions may apply to the survey results.

Interpretation Note 6 (Section 13(2)(d)):

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

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

In the context of this Act, an appraisal would include a  report or other record of the appraisal.

Examples

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

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

The appraisal might include facts, appraisal methodology, data, analysis, findings, and conclusions.  These would form part of the appraisal and could not be withheld under section 13(1). Other exceptions may apply to the appraisals.

Interpretation Note 7 (Section 13(2)(f)):

In the context of this Act, an "economic forecast" is a report or other record predicting trends in the economy.

Examples

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

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

The economic forecast might include facts, appraisal methodology, data, analysis, findings, and conclusions.  These would form part of the economic forecast and could not be withheld under section 13(1). Other exceptions may apply to economic forecasts.

Interpretation Note 8 (Section 13(2)(f)):

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

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

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

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

An "environmental impact statement" usually contains technical assessments, based on factual findings and conclusions, respecting the social, cultural, economic and environmental effects, influences or consequences of specific projects or activities such as buildings, highways, construction, mining and timber harvesting. Information similar to an environmental impact statement would also fall within section 13(2)(f).

Examples

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

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

The environmental impact statement might include facts, methodology, data, analysis, findings, and conclusions.  These would form part of the environmental impact statement and could not be withheld under section
13(1). Other exceptions may apply to the environmental impact statement.

Interpretation Note 9 (Section 13(2)(g)):

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

"Report"

"Final report" would be the conclusive or decisive report.

A final report can be generated internally by the public body or by an external party for the public body.

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

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

A final audit can be generated internally by the public body or by an external party for the public body.

In some cases a public body cannot confirm an audit report is, or is intended to be, the final finished copy. In those cases, if no further audit report is forthcoming, the public body should consider if the final draft is the final audit for the purposes of section 13(2)(g).

Example

• If a file contains only a draft audit report at the time of the applicant's request and circumstances indicate that the auditor will provide a final audit report, the draft audit report is not a "final audit" report under section 13(2)(g).
   
• In another case there might have been insufficient funds or resources to complete the audit and the existing draft contained preliminary conclusions that had not yet been verified or confirmed by the auditor.  In those circumstances, the audit is not "final", or conclusive, for the purposes of section 13(2)(g).

Context will be important in making this determination.

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

“Performance or efficiency of a public body” means the performance or efficiency of a public body as a whole. 

“Program” Programs, in the context of this section, do not refer to computer programs.

“Performance or efficiency of a public body’s programs” means the performance or efficiency of a program as a whole, and not the performance or efficiency of an activity within the program.

“Policy”

“Performance or efficiency of a public body’s policies” means the performance or efficiency of a policy of the public body.

The final report or final audit might include facts, methodology, data, analysis, findings, and conclusions.  These would form part of the final report or final audit and could not be withheld under section 13(1). Other exceptions may apply to the final reports or final audits.

Interpretation Note 10 (Section 13(2)(h)):

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

"Report"

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

Examples

• A report of tests of a sample population’s use of a new online service provided by a public body
   
• A report of tests of children's products

A “report of a test carried out on a product to test the equipment of a public body” refers to the testing report on products that test a public body’s equipment.

Example

• A public body conducts regular checks on drinking water using certain equipment to ensure it meets standards for human consumption.  The public body also issues a report on the tests it conducts on this equipment to ensure it is functioning appropriately.  This report could not be withheld under section 13(1).

The reports covered by section 13(2)(h) might include facts, methodology, data, analysis, findings, and conclusions.  These would form part of the report and could not be withheld under section 13(1).

However, records of tests that do not form part of a report would not be covered by section 13(2)(h). Other exceptions may apply to a consumer test reports or a report of a test carried out on a product to test the equipment of a public body.

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

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

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

"Policy"

Example

• A public body's study into whether it is feasible or technically possible to construct a new highway in the province could not be withheld under subsection 13(1). The entire study, including cost estimates, would be released unless another exception applies.

The reports covered by section 13(2)(j) might include facts, methodology, data, analysis, findings, and conclusions.  These would form part of the report and could not be withheld under section 13(1). Other exceptions may apply to feasibility or technical studies.

Interpretation Note 12 (Section 13(2)(j)):

"Research"

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

"Policy"

"Proposal"

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

Example

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

The reports covered by section 13(2)(j) might include facts, methodology, data, analysis, findings, and conclusions.  These would form part of the report and could not be withheld under section 13(1). Other exceptions may apply to reports on the results of field research.

"Report"

"Task force" means a unit specially established and organized to complete a set task.

"Committee"

"Council"

Examples

• A task force appointed by government to study and report on organized crime.
   
• A task force appointed by the Attorney General to study and report on teenagers as perpetrators of violent crimes.
  
  
• A school board establishes a committee of teachers, administrators and parents to review a curriculum program, comment on whether the program meets its stated goals and recommend changes.

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

Example

• Employees of an agricultural product marketing board (a public body) are asked to study and report on market potential for a new product. No formal name or title is assigned to the group but it is similar to task forces, committees or councils and it was established to consider a matter for a public body.

The reports covered by section 13(2)(k) might include facts, methodology, data, analysis, findings, and conclusions.  These would form part of the report and could not be withheld under section 13(1).

However, records of the task force, committee, council or similar body that do not form part of a report would not be covered by section 13(2)(h). Other exceptions may apply to the reports of task forces, committees, councils or similar bodies.

Interpretation Note 14 (Section 13(2)(l)):

Section 13(2)(l) applies when:

1) There is a plan or proposal to establish a new or program, or to change a program; and

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

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

"Proposal"

"Program" Programs, in the context of this section, do not refer to computer programs.

Section 13(2)(l) does not apply to plans or proposals during the deliberative process, but only to the plans or proposals "approved or rejected by the head of the public body". This means that the plan or proposal has been: a) approved or rejected, and b) only by the head of the public body.

Example

• A plan approved by the Chair of the Workers' Compensation Board (the head of a public body) to introduce a new program to provide services for injured workers.

A draft discussion paper cannot be reasonably construed as a plan or a proposal. In addition, a plan or proposal approved by someone other than the head of the public body is not covered by this provision. Other exceptions may apply to the plan or proposal.

The phrase "that the head of the public body has cited publicly" means the head must have cited (e.g., referred to, quoted from, mentioned, paraphrased or explained the meaning of) the information in a public manner. The determination of what has been cited publicly is one to be made from an examination of all the facts and circumstances in the case. This provision does not apply where someone other than the head of the public body has cited the information publicly.

"Basis"

"Formulate" means to express clearly and precisely [OED].

The phrase "as the basis for making a decision or formulating a policy" means the head must have cited publicly the information as the basis for making any of his or her decisions as head of the public body or as the basis for formulating a policy of the public body. This provision does not apply where someone other than the head of the public body has made a decision or formulated a policy. Other exceptions may apply to part or all of the information.

Example

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

Interpretation Note 16 (Section 13(2)(n)):

Decision, including reasons

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

"Reasons"

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

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

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

"That affects the rights of the applicant" means the decision must, in some way, affect the rights of the applicant.

Example

• The Environmental Appeal Board exercises an adjudicative function pursuant to a number of statutes. Where the Board issues a written decision under one of these statutes, a public body cannot apply section 13(1) to withhold the decision where it affects the rights of the applicant.

Section 13(2)(n) does not apply to all records that relate in any way to the exercise of a discretionary power or an adjudicative function, but only to the decision or reasons for it. Other exceptions may apply to part or all of the information.

Interpretation Note 17 (Section 13(3)):

Section 13(3) provides that any information contained within a record which has been in existence for 10 or more years cannot be withheld under section 13(1).

Ten years is a period of time beginning on one month and day, and ending on a corresponding month and day 10 years later. See Calculation of Time for a further explanation. The age of a record may be determined by the date of the record, or if the record is not dated, through context, such as by examining other dated records attached or close to it. Other exceptions may apply to the information.

SECTIONAL INDEX OF COMMISSIONER'S ORDERS

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

For a summary of the Commissioner's orders and policy interpretation of key points, Click here.