DSLU and cabinet confidence

Question 1

What’s a confidence of the Queen’s Privy Council for Canada S.69(1) ?

Answer 1

69 (1) This Part does not apply to confidences of the Queen’s Privy Council for Canada, including, without restricting the generality of the foregoing,

(a) memoranda the purpose of which is to present proposals or recommendations to Council;
(b) discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
(c) agenda of Council or records recording deliberations or decisions of Council;
(d) records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(e) records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d);
(f) draft legislation; and
(g) records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f).

Question 2

Where a potential Cabinet confidence is identified by the ATIP Analyst, the ATIP Division will consult with who ?

Answer 2

the Departmental Legal Services Unit (DLSU)

Question 3

What must be completed by the analyst prior to sending a DLSU consult ?

Answer 3

The DLSU schedule template prepared by DLSU must be

Question 4

If SSC ATIP is in disagreement with DLSU’s recommendation, DLSU will consult with who ?

Answer 4

If SSC ATIP is in disagreement with DLSU’s recommendation, DLSU will consult with PCO.

Question 5

All Cabinet Confidences are classified as what ?

Answer 5

All Cabinet Confidences are classified as Secret or higher

Question 6

What keywords are often indicators of possible Cabinet Confidences ?

Answer 6

Business Case
Transformation Plan 
Shared Services Canada Investment Plan
Main/supplementary estimate
MC/MR
Funding Gaps
Financial Outlook / Departmental Balance Sheet

Question 7

What keywords are always indicators of Cabinet Confidences ?

Answer 7

TB approval

TB submission

Cabinet decision on…

Letters between Ministers

Reference to Draft Legislation

Minister’s Agenda

Council agendas

Records of decision

Ministerial recommendations

ARLU (annual reference level update) depending at what stage it’s at

Orders-in-council (again depending at what stage they’re at)

Sole source contracts

Future Budgetary $ figures (which haven’t been previously released)

Question 8

In accordance with section 69, the ATIA does not apply to confidences of the Queen’s Privy Council of Canada, which include ?

Answer 8

• Memoranda presenting proposals or recommendations to Council;
• Discussion papers presenting background explanations, analyses of problems, or policy options to Council for consideration in making decisions;
• Agenda of Council or records indicating deliberations or decisions of Council;
• Records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
• Records briefing ministers of the Crown in matters before, or proposed to be brought before Council;
• Draft legislation, and;
• Records that contain information about the contents of the types of records described above.

Question 9

“Council” means ?

Answer 9

1. the Queen’s Privy Council of Canada,
2. committees of the Privy Council,
3. Cabinet, and Cabinet committees.

Question 10

There are instances, however, where even though the documents fall under one of the types described above, they cannot be withheld as Confidences, but must be reviewed for possible release under the ATIA:

Answer 10

• confidences of the Queen’s Privy Council that are more than 20 years old;
• discussion papers if the related decisions have been made public, or;
• where decisions have not been made public, four years have passed since the decisions were made.

Question 11

Preparing the Package

Answer 11

It should be indicated on the package that it contains “Secret” documents and must be double enveloped. The package will be sent to DLSU by courier.

Question 12

The request for consultation will consist of:

Answer 12

• Memorandum - Request for legal advice on the applicability of Cabinet confidences exclusions;
• Schedule;
• The documentation submitted for review (on CD); and
• Any additional reference documentation (on CD).

Question 13

what do you do once it has been confirmed that records are deemed Cabinet Confidences ?

Answer 13

Do not reinsert these pages with the original package of records when sending to DLSU :

1. Keep them in a separate envelope in the file folder - mark the outside of the envelope “Cabinet Confidence”.
2. Keep the schedule and the disk in this envelope.

Then if there is a complaint on the file, all Cabinet Confidences can easily be removed before the investigator reviews the file as they are not privy to Cabinet Confidences.