DAOD 9000-1, Identification and Handling of Cabinet Confidences

Identification

Date of Issue: 1999-09-09

Application: This is an order that applies to members of the Canadian Forces (CF) and a directive that applies to employees of the Department of National Defence (DND).

Supersession:

Approval Authority: This DAOD is issued under the authority of the Assistant Deputy Minister, Policy (ADM (Pol)).

Enquiries: Director of Cabinet Liaison (D Cabinet Ln)


Definitions

Authorized Recipient (destinataire autorisé)
An authorized recipient is a DND employee or CF member with a:
  • security clearance of Level II, Secret; and,
  • a "need to know" to carry out their duties.
Cabinet (Cabinet)
Cabinet refers to the Queen's Privy Council for Canada, Committees of Queen's Privy Council, the Cabinet and Committees of Cabinet. Committees of Cabinet include standing Committees, Ad Hoc Committees and any other Ministerial Committees.
Note - The term Council is often used interchangeably with the term Cabinet.
Cabinet Confidence (document confidentiel du Cabinet)
A Cabinet Confidence is a record, or any information in a record, that describes the individual or collective decision and policy-making process of Ministers or Cabinet.
Examples: Records of Cabinet Decisions (RDs), Cabinet Agendas, Committee Reports (CRs) and Memoranda to Cabinet (MCs).
Any information relating to the business of Cabinet, but not contained in the types of Cabinet documents listed above also constitutes a Cabinet Confidence. Such information may be found in numerous other types of documents.
Examples: Analyses, Aide Memoires, Presentation Decks, Treasury Board Submissions, Treasury Board Decisions, briefs to Ministers, letters between Ministers and records of communications between Ministers
Documents created within DND that make reference to decisions, discussions or agenda of Cabinet and Cabinet Committees (including Treasury Board) are also Cabinet Confidences.
Cabinet Documents (document du Cabinet)
Cabinet documents are the formal documents issued by the Privy Council Office (PCO) and tightly controlled under the Cabinet Papers System. Examples of these documents are Memoranda to Cabinet (MCs), Aide Memoires, Presentation Decks, Cabinet Committee Reports (CRs) and Records of Cabinet Decisions (RDs). Each individual document has a serial and a copy number and is printed on coloured paper to identify its unique status and the need for special handling.
Record (document)
A record includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record and any other documentary material, regardless of physical form or characteristics, and any copy thereof.

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Identifying Cabinet Confidences

Purpose Test

A purpose test is a simple guide used to determine what constitutes a Cabinet Confidence. By examining the purpose for which a record is created, one can determine whether it contains one or several Cabinet Confidences.

A record is deemed a Cabinet Confidence if its purpose is to:

Note - One should not rely on a record's title or apparent type to make a determination, since many records are mislabelled and, therefore, could be misleading. The contents, not the title, determine the character of a document.

Care must be taken to include only records that were for the Minister's use. For example, records created for use by officials while developing policies are not Cabinet Confidences.

Attachments, Appendices, Enclosures, etc.

Material attached to a Cabinet Confidence is not necessarily a Confidence itself.

Such material should be examined independently of its attachment to a Cabinet Confidence. If a record was not prepared to present recommendations or proposals to Cabinet, but was prepared instead for use unrelated to the Cabinet process, then it is not a Confidence.

Example: A memorandum to Cabinet may have attachments such as:

These records in their original state are not Confidences, nor do they become Confidences because they were attached to a Confidence.

Note - The fact that such records were attached to the memorandum, however, is a Cabinet Confidence and should not be revealed.

Records Containing Information about Confidences

To qualify as a Confidence, a record containing information about Confidences must link the information provided with the collective decision-making and/or policy formulation processes of Ministers.

Example: If a record refers to the fact that a Memorandum of Cabinet contained specific statistics, then that record is a Confidence. If it merely refers to the statistics, but does not mention that they were contained in a Memorandum to Cabinet, then the record is not a confidence.

In addition, if only a portion of a record contains a Confidence, then only that portion is deemed a Confidence.

Form of Records

Regardless of whether the record is in draft or final form, it must be treated in the same fashion.

Example: A draft of a record created for the purpose of presenting proposals and recommendations to Cabinet, but which was never actually presented to Cabinet, is still a Confidence.

Types of Records

The following table identifies some types of records that are considered Cabinet Confidences.

Record Type refer(s) to …

Memoranda to Cabinet

records that present proposals or recommendations to Cabinet. This group of records includes, but is not restricted to, documents entitled Memoranda to Cabinet (MCs). For example, submissions to TB are records that present proposals or recommendations to Cabinet. These also fall within this category.

In recent years there has also been an increase in the use of aide-mémoires and presentation decks to inform Ministers and to present proposals and recommendations. These are also Cabinet Confidences.

Agenda and Records

records such as an agenda of Cabinet or a record of Cabinet deliberations and decisions, and includes:

  • agenda of meetings of Cabinet and Cabinet Committees;
  • the minutes of any meeting of Cabinet; and
  • records of decisions taken in such meetings, [i.e. Records of Cabinet Decisions (RDs) and Committee Reports (CRs)]

Discussion Papers

records that present background explanations, analyses of problems or policy options to Cabinet.

Note - Although discussion papers, as contemplated by the Access To Information 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. Paragraph 69(1)(b) of the Access To Information Act applies to these records.

A document entitled "Discussion Paper", "Aide Memoire" or "Presentation Deck" that contains recommendations or proposals to be presented to Cabinet must be treated as a Memorandum to Cabinet.

Draft Legislation

any drafts of proposed legislation. It is not relevant whether the legislation was ever introduced into the House or the Senate or indeed, even seen by Cabinet, it still remains a Confidence.

Draft legislation remains a Confidence even after the final version is introduced into the House/Senate and even after the final version has been passed and proclaimed in force.

Note - The above are all records that are controlled under the Cabinet Papers System of the PCO and require special handling. The following do not require special handling.

Communication between Ministers

records of communication, or correspondence between Ministers, whether formal or informal, on matters relating to the making of government decisions or the formulation of government policy.

A letter from one Minister to another setting out the Minister's opinions or decisions is a Confidence.

This type also includes:

  • records that contain notes taken during a discussion between Ministers; and
  • any record prepared for use by a Minister in discussions.

Briefs to Ministers

records used to brief Ministers of the Crown in relation to matters that are:

  • brought before, or are proposed to be brought before Cabinet; or
  • the subject of communication or discussions between Ministers.

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Handling and Distribution of Cabinet Confidences

Identification of Cabinet Confidences

Cabinet Confidences are secret and must be clearly stamped with the security classification and identified on each page as a Cabinet Confidence by the author.

Authors or Offices of Primary Interest (OPIs) should identify applicable paragraphs of an internal record containing Confidences by inserting the letters CC after the security prefix of the document [e.g., Secret (CC)] and the paragraph [e.g., S-CC] at the time of writing. This will assist in the removal of Confidences when the rest of a departmental record is to be released through the Access to Information Act.

When the reference to a Cabinet Confidence is short, the statement should be underlined to assist in identification.

Exceptions: TB and Governor-in-Council submissions must comply with Treasury Board Submission Guide.

Protection of Cabinet Confidences

TB Decisions, letters from other Ministers, correspondence making reference to Cabinet Decisions and Ministerial Discussions, etc. are often not properly identified as Cabinet Confidences when we receive them; however, they must still be treated accordingly.

All records that contain Confidences must be separated from other records within directorate files and placed in the approved file folders (NATO stock number 7530-21-902-0364 (Secret)).

Directorates must keep a sequential record of those files known to contain Cabinet Confidences to facilitate access by authorized recipients only.

When the time comes for disposal of Cabinet Confidences, they must be treated in accordance with departmental and governmental policy and with the National Defence Security Policy, Chapter 11, Destruction of Classified Information.

Annual Audit of Holdings

Each year the PCO or Departmental Security Staff audits all Cabinet Documents in the Department to assess the control and security of Cabinet Documents in the Department. The audit examines the Cabinet document register, filing system and security measures and verifies all Cabinet Documents held in the Department at the time of the audit.

Reproduction

Formal Cabinet Documents issued by the PCO shall not be copied or reproduced in whole or in part.

Disclosure

Any disclosure or suspected disclosure of a Cabinet Confidence constitutes a breach of security and must be reported immediately to the D Cabinet Ln.

Receipt of Cabinet Documents

External Cabinet Documents (i.e. records that are controlled under the Cabinet Papers System of the PCO - MCs, CRs, RDs, etc) are always circulated on a "need to know" basis:

Upon receipt of a Cabinet Document, the recipient shall:

The receipt is proof of delivery. Each recipient must ensure that a record is kept of the Cabinet Documents received and returned. Recipients shall retain receipts until after the next audit of Cabinet documents.

On the rare occasion that an OPI might receive externally originated Cabinet Documents directly, the recipient must deliver it by hand to the Directorate of Cabinet Liaison immediately.

Circulation of Cabinet Documents

D Cabinet Ln is responsible for identifying, logging and tracking Cabinet Documents.

Cabinet Documents must never be left unattended. They must be kept locked in an approved, secure filing cabinet when not in use.

OPIs and/or Offices of Collateral Interest (OCIs) shall review and circulate these records quickly. These documents must not be held for more than two working days without advising D Cabinet Ln.

When circulation is complete, Cabinet Documents must be returned immediately to D Cabinet Ln.

Subsequent access to these Cabinet Documents can be obtained by contacting D Cabinet Ln.

Only D Cabinet Ln shall issue changes to distribution lists for Cabinet Documents.

Transport outside DND Buildings

Cabinet Documents being transported outside a secure DND building must be in an approved locked security briefcase.

Only authorized National Defence Records and Library Services (NDRLS) messengers shall carry out movement of Cabinet Documents to and from the PCO. Similarly, only personnel with a Level II, Secret, security clearance shall carry Cabinet Documents destined for DND buildings outside the Pearkes Building.

Commercial courier services must never be used to transport Cabinet Documents.

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Processing Requests for External Access

Constitutional Convention

This convention makes the Cabinet papers of a previous government privy to the members of that government, while preventing disclosure of these papers to a Minister of a new government. The convention also applies to Confidences that may be reflected in departmental records.

Non-Release

The Access to Information Act (AIA) does not apply to Cabinet Confidences. In other words, Cabinet Confidences will not be disclosed to applicants submitting AIA requests for records held by the DND and the CF.

As AIA requests are responded to by Director Access to Information and Privacy (DAIP), Cabinet Confidence material responsive to such requests must be forwarded to DAIP. DAIP is then responsible for seeking case-by-case, record-by-record authorization from the PCO for the exclusion, or not, of Cabinet Confidence material from records disclosed in response to individual AIA requests.

Neither the Information Commissioner of Canada, nor his staff, has the authority to examine material deemed as Cabinet Confidence.

Sources of Requests

Requests for access to records containing Cabinet Confidences generally come from:

Requests from the Auditor General

The Auditor General has the right to access information relating to his or her responsibilities under the Auditor General Act, and it is departmental policy to provide information to him wherever possible.

All requests by the Auditor General for access to Cabinet Confidences should be referred immediately to D Cab Ln who will:

Inappropriate Requests

Since most formal Cabinet Documents are either Privy Council or TB Documents and not Departmental Documents, the Department has no authority to release these Cabinet Confidences directly to the Auditor General.

From time to time, however, DND employees and/or CF members receive requests for such information. Recipients of such requests shall explain that they have no authority to release the information and that the following process applies:

Requests under the Access to Information Act

Subsection 69(1) of the Access to Information Act provides that Confidences are excluded from the application of the Act. This exclusion operates for 20 years. After that time, the record is not protected unless other exemptions apply.

Note - The Discussion Paper (now called the Analysis section of a Memorandum to Cabinet) is treated somewhat differently.

If:

then:

however, if no decision was made, they remain confidential for twenty years.

OPIs reviewing a record for release under the Access to Information Act must identify all Cabinet Confidences to the Director, Access to Information and Privacy (DAIP).

References

Source References

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