Annual Report: 2002-2003

A. JUDICIAL GUIDANCE

1) The Assertion of Cabinet Confidence to Justify Secrecy

The decisions of the Supreme Court of Canada in Babcock and of the Federal Court of Appeal in Ethyl, will be enormously important catalysts for reducing the zone of cabinet secrecy. In future, for example, it is to be hoped that, after cabinet decisions are made public, a great deal of related information will be disclosed, such as: the record of cabinet decision, references to the decision and its content in other records and portions of cabinet records containing background explanations, analysis of problems and policy options. From now on, governments must exercise their discretion to invoke the cabinet confidence privilege with bona fides and in a manner designed to serve the public interest and promote accountability.

However, it may take some time--and some nudging by the Information Commissioner and the courts--before governments bring their cabinet confidentiality practices into compliance with the law and the judicial direction given this year. Examples of government's slowness to face up to the new post-Babcock reality are discussed at pages 21 to 25.