Highway 413 cost-planning records remain withheld under Cabinet exemption

Ontario’s information and privacy adjudicator upheld the refusal to release nine Highway 413 cost-planning records, finding that disclosure would reveal Cabinet deliberations or allow accurate inferences about them.

In Order PO-4917, Appeal PA23-00165, issued October 1, 2026, adjudicator Stephanie Haly dismissed a reporter’s appeal against the Treasury Board Secretariat’s access decision.

The request covered records from November 6 to December 7, 2022. The ruling does not disclose a current price tag for the highway, approve its construction or decide its environmental merits.

Drafts connected to Cabinet discussions

The reporter sought records relating to the most recent construction-cost estimates for the proposed highway. The secretariat located nine records, including proposed minutes, draft submissions and supporting documents, but withheld all of them under section 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act.

After mediation failed, the dispute proceeded to an inquiry. The secretariat said the records formed part of the 2023–24 strategic planning process, in which ministries proposed changes to multi-year plans and estimated expenditures.

Although Highway 413 was a Ministry of Transportation initiative, the secretariat held the documents because they were submitted to its office for use in preparing material for Treasury Board and Management Board of Cabinet. Haly accepted that both bodies are Cabinet committees covered by the exemption.

The legal question was not simply whether every document had physically reached Cabinet. A record that was never placed before Cabinet or one of its committees can still be protected if releasing it would reveal the substance of their deliberations or permit accurate inferences about those discussions.

The reporter argued that the secretariat had not provided enough evidence to establish that connection and asked Haly to examine the records herself.

Having reviewed the documents and both parties’ submissions, including confidential representations from the secretariat, Haly found the necessary link. The supporting records directly concerned the development and analysis of options and recommendations for Highway 413.

Her public reasons describe planning assessments, briefing slide decks, questions about project costs and scope, and a financial sign-off document. She accepted that their contents informed recommendations or briefings for the Cabinet committees. Some records could not be described more fully without disclosing the protected information itself.

Public interest could not override this exemption

The reporter also pointed to the government’s public commitment to disclose Highway 413 costs and to information previously obtained from the Ministry of Transportation through another IPC appeal.

Haly accepted that the government had made a public disclosure commitment. But that did not determine whether these particular records were exempt. The earlier Ministry of Transportation records were not before her, and the outcome of that separate appeal did not control the secretariat’s case.

The reporter further argued that disclosure was important because the proposed highway crossed parts of the Greenbelt. Haly did not dispute that policy decisions affecting Greenbelt lands could be of compelling public interest.

The obstacle was statutory: the Act’s public-interest override does not apply to records protected by the Cabinet-records exemption. The appeal therefore did not turn on a finding that public concern about the highway was weak or unimportant.

Haly also considered whether non-exempt information could be separated and released. She concluded that doing so would leave disconnected fragments without meaningful information, and declined to require that exercise.

Separate environmental-assessment records also withheld

Two days earlier, Haly reached the same result in Order PO-4916, Appeal PA23-00113, issued September 29, 2026. That separate request sought estimated environmental-assessment costs for Highway 413, covering January 1, 2007, to November 7, 2022.

The appeal concerned 59 records: final briefing submissions, drafts, due-diligence material and staff emails. Haly found that the final submissions had been put before the Cabinet committees and that the other material contained substantially similar information or supported those submissions. Disclosure would therefore reveal deliberations or allow accurate inferences about them.

She dismissed that appeal too. The ruling withheld cost-related records; it did not decide the adequacy of the environmental assessment or whether the highway should proceed.

The October 1 order leaves the nine disputed records withheld. Its reasoning concerns their demonstrated connection to Cabinet deliberations, rather than a blanket rule that every record about highway costs is confidential.