Ford government's 3-year fight to keep its mandate letters secret heard at Ontario's top court

The Ontario government took its ongoing fight to keep Premier Doug Ford's mandate letters secret to the Ontario Court of Appeal Tuesday — three years after it first denied a CBC News freedom of information (FOI) request for access to the records. 

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.  

Despite being ordered to disclose the records by Ontario's former information and privacy commissioner, and losing a judicial review of that decision in Divisional Court last year, the government continued to argue that all 23 of the premier's mandate letters must be kept from the public to maintain cabinet secrecy in a virtual court hearing Tuesday. 

"These letters are fundamentally different from other mandate letters," Judie Im, counsel for the Attorney General of Ontario, told the three-judge panel. 

Im said that while other governments' letters were prepared for public consumption, Ford's mandate letters were not — and she argued the fact that just because past governments publicly released mandate letters, that doesn't mean the current Ontario government has to follow suit. 

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" are exempt from disclosure, under what's commonly referred to as the cabinet record exemption.

This is the first case in Canada to consider whether a government's mandate letters meet the criteria for exemption. 

Public 'really should care'

Intervener groups in the case argue the government's argument amounts to a radical re-interpretation of the FIPPA exemption — posing a threat to the public's right to know that goes beyond access to mandate letters.

"Their interpretation of the exemption in the act is pretty farcical," said Brent Jolly, president of the Canadian Association of Journalists (CAJ). 

"The public really should care about this because it speaks to the accountability of government and the ability for the public to have access to information, which is critical in a democracy."

The CAJ, the Centre for Free Expression, Canadian Journalists for Free Expression, Aboriginal Peoples Television Network, and News Media Canada intervened in the case as a group to argue about the dangers of what they consider a broadening of the interpretation of the cabinet record exemption by the province. 

Ontario's previous government — under Premier Kathleen Wynne — posted its mandate letters publicly on the province's website, a practice that has become the norm across most of the country since Prime Minister Justin Trudeau made his own letters public in 2015.

The Cabinet Office first denied the CBC News freedom of information request for Ford's letters to ministers under the cabinet record exemption in August 2018.

Release the letters, IPC says

But on appeal, former IPC commissioner Brian Beamish determined the mandate letters didn't meet the criteria for exemption. Instead of revealing the substance of deliberations, Beamish determined the mandate letters were the end point, or product, of the premier's deliberations and ordered their release in his decision.

"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."

Last year a three-judge Divisional Court panel ruled that Beamish's 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. 2020 decision. 

Ford's government then sought leave to appeal to the Ontario Court of Appeal — which was granted by the province's top court in February. 

Since the Ford government first denied access to the mandate letters it has argued the roughly 150 pages of records would reveal the substance of cabinet deliberations. On Tuesday, Crown counsel pointed to a cabinet meeting agenda, which lists mandate letters under a "chair notes" subhead, as evidence the letters were discussed in cabinet. 

Ontario Court of Appeal Justices Eileen Gillese, Lorne Sossin and Peter Lauwers reserved judgment on the appeal until a later date. 

Cost to taxpayers unclear

It's unclear how many tax dollars and government resources have gone toward trying to deny the public access to the mandate letters — but given it's been three years so far, Jolly says the cost must be "immense."

"What it boils down to is the fundamental idea that the public is paying to keep this information secret," Jolly told CBC News. 

"That just seems like a completely illogical position to me in a time when various other organizations and institutions are having to tighten their belts so, so immensely."

For two years CBC News has been trying to obtain information on how much time Crown attorneys have devoted to the mandate letter case. Last month, the IPC dismissed CBC News' appeal of the Ministry of the Attorney General's decision to deny CBC access to that information because of attorney-client privilege. 

The requested record listed the number of Crown attorneys working on the case, and how much time they spent on the case each month.

An IPC adjudicator determined the record fit the criteria for exemption because the level of detail in it combined with the requester's knowledge of the ongoing mandate letter appeal "creates a reasonable possibility that [CBC] could deduce privileged communications." 

CBC News filed a new FOI request last month for just the total combined number of hours all Crown attorneys have devoted to the case. The Ministry of the Attorney General denied access again, citing attorney-client privilege.

Documents obtained by CBC News concerning its original FOI request for the mandate letters make it clear that senior officials inside the Ford government planned to keep the records from public view. 

In an email dated July 31, 2018, the then-executive director of policy to the premier Greg Harrington says, "here's the letters. As I said, the intention is to keep them to ourselves as long as possible."