2010-2011 Operational procedures based on advice cannot be protected as advice

Complaint: In response to the same request, the Royal Canadian Mounted Police (RCMP) and the Department of Justice Canada, after consulting each other, released only parts of a joint protocol, withholding the rest under two exemptions.

Investigation: The institutions could not show that the protocol constituted either advice or recommendations that could be exempted under paragraph 21(1)(a)) or that it was protected by solicitor-client privilege (section 23).

Outcome: The Information Commissioner applied to the Federal Court to have the matter reviewed after both institutions refused, in response to her recommendation, to disclose the text of the protocol.

Information Commissioner’s position

  • To claim paragraph 21(1)(a) and section 23, institutions must show that these exemptions apply to the records themselves, not to the information or discussions on which they were based.
  • In this case, the protocol was not advice. Rather it was an agreement resulting from a policy decision based on advice or recommendations, including legal advice, previously provided.
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