Ford government loses appeal to keep mandate letters secret but takes 2-year fight to higher court

The Ontario government is taking its now two-year fight to keep Premier Doug Ford's mandate letters secret to the Ontario Court of Appeal after the province's judicial review application was dismissed in Divisional Court last month. 

Mandate letters traditionally lay out the marching orders a premier has for each of his or her cabinet ministers after taking office — and have been routinely made public by governments across the country. 

But Ford's government is now seeking leave to argue the case in a higher court to prevent its letters from becoming public. It's a surprising and "bizarre" move, according to the director of the Centre for Free Expression at Ryerson University.

"They got slapped down by the privacy commissioner himself, they got slapped down by the Divisional Court, now they're going to the Court of Appeal," said James Turk. 

"It's a total waste of taxpayers' money, but apart from that, it's a total denial of the kind of transparency that's necessary in a democracy." 

Government's case dismissed by 3-judge panel

In late August, a three-judge panel ruled that Ontario's information and privacy commissioner's (IPC) original decision ordering Ford's government to disclose its mandate letters to CBC News was reasonable and dismissed the judicial review.

"The Attorney General's submission amounts to no more than an invitation for this Court to re-weigh the evidence and overturn the findings of the IPC with which the Cabinet Office disagrees," said Justice Michael Penny in the Aug. 27 decision. 

In a virtual Divisional Court hearing this spring, counsel for the government argued that all 23 of the premier's mandate letters should not be released to CBC News to maintain cabinet secrecy. 

They told the three-judge panel that Ford provided the letters to the ministers at a cabinet meeting so it's reasonable to infer the records were discussed.

Ontario's Freedom of Information and Protection of Privacy Act (FIPPA) states that any records that "would reveal the substance of deliberations of the executive council or its committee" can't be released under the legislation.

Since the province first denied freedom of information request from CBC News for the records in August 2018, the government has argued that releasing the roughly 150 pages of records would reveal the substance of cabinet deliberations. 

The province had until Friday to decide whether or not it would seek leave to appeal the Divisional Court decision or release the mandate letters. 

Appeal raises issues of public importance: government

In its motion to seek leave to appeal, Ford's government said the Divisional Court erred in its reasoning and the appeal raises issues of public importance. 

Those issues concern how the cabinet records exemption "addresses the important public policy of cabinet confidentiality, which is essential to the proper function of good government," according to the motion. 

Former IPC Brian Beamish determined the mandate letters didn't meet the criteria for the cabinet record exemption. Instead of revealing the substance of deliberations, Beamish determined the mandate letters were the end point, or product, of the premier's deliberations.

"There is no persuasive evidence or argument before me that disclosure [of the letters] would give rise to a chilling effect on cabinet deliberations," said Beamish in his 2019 ruling. 

"To a great extent, the mandate letters bear a close resemblance to the detailed policy platforms often produced by political parties during election campaigns." 

The office of the IPC told CBC News it can't comment on the government's decision to appeal again because the matter is still before the courts. But in a statement, the IPC said "Ontario's FOI laws are based on the principle that every person has a right to access government information.

"This right exists to ensure the public has the information it needs to participate meaningfully in the democratic process, and that politicians and bureaucrats remain accountable."

In an email, a spokesperson for Ford's office told CBC News it would be inappropriate to comment on the case because it's before the court. 

But opposition leaders were quick to condemn the government's decision to extend its court battle over the mandate letters Tuesday.

"It's outrageous," said Ontario NDP leader Andrea Horwath. "The bottom line is they're using public money to keep information from the public."

The Liberals and Green Party both released statements arguing that the province must have something to hide if it's unwilling to release the letters. 

Government ordered to pay $17K in legal costs

The Ontario government was ordered to pay CBC $17,000 in legal costs for the judicial review since the case was dismissed. 

Besides covering those costs, it's unclear how many tax dollars and government resources have gone toward the case.

Last fall, CBC News filed a freedom of information request to find out how many Crown attorneys were working on the province's case — and how many hours each lawyer had devoted to it — since the corporation's initial access request for the mandate letters was filed.

The Ministry of the Attorney General denied access to the records, claiming that information was exempt from disclosure because of attorney-client privilege.

CBC News appealed the ministry's decision to the IPC, and the appeal is now at the adjudication stage. 

'Keep them to ourselves as long as possible'

Although the cost of its efforts remains unknown, it is clear that senior officials inside the Ford government planned to keep the mandate letters secret for as long as they could. 

In an email dated July 31, 2018 obtained by CBC News, the then-executive director of policy to the premier suggests it was the government's position to keep the letters from public view. 

"Here's the letters. As I said, the intention is to keep them to ourselves as long as possible," Greg Harrington said in the email to the chief of staff's senior policy adviser, Derek O'Toole.

That's also the only reason Turk can think of that explains why the province is trying to continue its fight at the Ontario Court of Appeal. 

"This is all just about using delay as a way of denying the public the right to see what it has the right to see."