Province Applies to Appeal O'Connor Decision

TREASURY/POLICY BOARD--Province Applies to Appeal O'Connor Decision

The government of Nova Scotia is notifying the Supreme Court of Canada that it will apply for leave to appeal a recent court decision that erodes cabinet confidentiality under the Freedom of Information and Protection of Privacy (FOIPOP) Act.

The government will seek to overturn the recent Nova Scotia Court of Appeal decision on the O'Connor case, which dealt with the release of confidential information for the provincial cabinet. The Appeal Court upheld a lower court order to release information that included advice and recommendations to cabinet. The notice was being filed in the Supreme Court of Canada this morning.

Justice Minister Michael Baker said recent court decisions have significantly affected the operations of government, in that cabinet is less likely to receive and consider important, confidential information if it could soon become public.

"Cabinet confidentiality is a foundation of Canada's system of government -- and is protected by all provinces," Mr. Baker said. "The latest court decision has narrowed the scope of the cabinet confidentiality provisions in the FOIPOP Act to a point that makes it difficult to conduct the business of government. That's why we believe it should be appealed."

The appeal relates to the release of government information on an inventory of programs known as the Program Analysis and Options document, which was considered in cabinet deliberations in spring 2000. The applicant, Dan O'Connor, the New Democratic Party of Nova Scotia's chief researcher, had asked for and received information on all programs -- except sections considered advice and recommendations to cabinet.

Both the Supreme Court of Nova Scotia and the Court of Appeal later upheld the government's right to not disclose written advice provided to cabinet. However, the courts directed the government to release some information that had been considered by cabinet on the grounds that it was background information.

The notice of application to the Supreme Court of Canada will be followed by an application to the Nova Scotia Court of Appeal for a stay in complying with the terms of its decision.

The government has already released information on 85 of the 86 programs under the Supreme Court of Nova Scotia decision on the case. Advice regarding one program was held back to protect the government's right to appeal.