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Material appended to a memorandum presented to Cabinet will not necessarily be a Confidence. Such material should be examined independently of its attachment to the memorandum. If a record was not prepared to present recommendations or proposals to Cabinet but rather was prepared for use unrelated to the Cabinet process it is not itself a Confidence. For example, memoranda to Council may have as appendices newspaper clippings, tables of statistics, reports prepared for use within a department.

These records in their original state are not Confidences and they do not become Confidences simply because they were attached to a memorandum and are thereby distributed to Cabinet or to Ministers of the Crown for use in Cabinet deliberations. However, the fact that they were attached to a memorandum to Cabinet is a Cabinet confidence and should not be revealed. As mentioned, the Act does not apply to Confidences and a refusal to provide access to such documents is not reviewable.

Although discussion papers, as contemplated by the Act, no longer form part of the Cabinet Papers System there may be requests for discussion papers, which were at the time they were prepared, part of the Cabinet Paper System.

The “Counterfeiter”

Documents may also be mislabelled as discussion papers. When dealing with such documents, it is important to note that the title of the document is not determinative of the character of the document. For example, a document entitled Discussion Paper but containing recommendations or proposals to be presented to Cabinet is not a discussion paper but rather a memorandum.

Thus, the Act will apply to these documents, and unless an exemption applies, they should be disclosed pursuant to a request under the Act. Treasury Board decision letters. It should be noted that these will obviously include not only drafts of these documents but also any informal notes which officials occasionally make of Cabinet or Cabinet committee meetings. A distinction must be made between the text of the formal Record of Decision, which always remains a Confidence, and the substance of the decision of Cabinet, which is often made public.

The formal text of the Record of Decision is always a Confidence and is excluded from the application of the Act. The substance of a decision reached by Cabinet may be disclosed to the public as deemed appropriate by Cabinet or by a Minister with the approval of Cabinet.

For example, the Treasury Board may wish to reflect its decision in circulars and manuals. Such a record may take the form of a letter from one minister to another setting out the minister's opinions or decisions. Also, a record which contains notes taken during informal discussions between ministers would be included as would any record prepared for the use of the minister in discussion with a colleague or colleagues. Records of communications between ministers that were not used to or do not reflect discussions relating to the making of government decisions or the formulation of government policy do not fall under this category.

It also deals with records the purpose of which is to brief ministers in relation to matters that are to be the subject of communications or discussions between ministers concerning the making of government decisions or the formulation of government policy. Policy recommendations can appear in a record created independent of the Cabinet process, which record was not prepared for the purpose of briefing a minister in relation to matters before Cabinet or for use in a discussion with other ministers.

The purpose for which the record was prepared is the crucial factor. For example, take a situation where a formal Record of Decision directs a government department to develop policy recommendations for its minister on a particular subject. The officials in that department have meetings for which agendas are prepared, notes are made of the proceedings and reports are developed to be the basis of subsequent discussions on the same subject.

Although the ultimate purpose of the meetings and reports is to develop policy recommendations for the use of the minister in his or her presentation to Cabinet, the records themselves are not Confidences. The records were created for the use of officials while they are developing policy, not for the use of the minister. However, if any of the information in these records provides a link to Cabinet, that information should be protected.

In the same view, the end product e. This provision relates to any drafts of proposed legislation. It is not relevant whether the legislation was ever introduced into the House or the Senate or indeed seen by Cabinet, it still remains a Confidence. Draft legislation includes draft Bills, draft regulations and draft Orders in Council. Draft legislation remains a Confidence even after the final version is introduced in the House or the Senate or in the case of draft regulations or draft Orders in Council, even after they have been approved by the Governor-in-Council and published.

In order for the paragraph to apply, the record must connect the information provided with the collective decision-making and policy formulation processes of ministers. For example, if a record refers to certain statistics which are also found in a memorandum to Cabinet, this fact alone does not convert the first record into a Confidence. But if the first record refers to the fact that a memorandum to Cabinet contained the statistics, then that first record itself becomes a Confidence. If there is any doubt concerning a document the legal advisors within government institutions are to be consulted and they in turn will consult with the Legal Counsel, Privy Council Office.

After that time, the record will be subject to the Act and its releasibility must be determined by reference to the exemption provisions. Access to the discussion paper then becomes subject to the provisions of the Act.

5 Ways to Boost Your Self-Confidence

Once the relevant records have been selected from departmental files either officials in the Access to Information and Privacy Office or officials with subject area expertise or both review the records. The policy requires that once the review process is completed, all records that may themselves be Cabinet confidences or that may contain portions revealing the contents of Cabinet confidences must be sent to departmental legal counsel for review.

Those records which legal counsel agrees may be or may contain Cabinet confidences must be sent to the Office of Counsel of the Privy Council Office. This is particularly important for documents falling outside the formal Cabinet Paper System for example, overhead slides prepared to make presentations to Cabinet, without reference to the presentation appearing on the paper copies of the slides.

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