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Office of the Information and Privacy Commissioner
March 25, 2010
Office of the Information and Privacy Commissioner
Comments on Recent Court Decision
The Information and Privacy Commissioner, Ed Ring, has
been involved in a court case for which the decision has
been rendered. The case arose as a result of a public
body refusing to provide responsive records for the
Commissioner's review as a result of a request for
review by an applicant. The records in their entirety
were withheld from the Commissioner's Office by the
public body citing Section 21 of the Access to
Information and Protection of Privacy Act (ATIPPA).
Section 21 states that the head of a public body may
refuse to disclose to an applicant information that is
subject to solicitor and client privilege. Previously
all records for which there was a claim of Section 21
were routinely provided to the Commissioner by the
public body when a request for review was filed by an
applicant.
The Commissioner takes the view that Section 52 of the
ATIPPA clearly requires public bodies to produce
all records relevant to an investigation. However, the
public body in this case, differed in its interpretation
of the legislation, refusing to allow the Commissioner
to review the records in question. As a result of this
difference in interpretation, the matter was referred by
the head of the public body to the courts for review.
The matter was filed on March 13, 2009, heard on October
14, 2009 and the decision was rendered on February 16,
2010 by the Honourable Madam Justice Valerie L.
Marshall. Madam Justice Marshall upheld the position of
the public body, citing the development of the law
surrounding solicitor and client privilege over the past
number of years, and its elevation from a rule of
evidence to a rule of substance.
Prior to the decision of Madam Justice Marshall, our
normal practice in cases such as this was to simply
review the records in order to confirm whether all or
part of the records fit the criteria for a Section 21
exception. If we found that the records, or a portion
thereof, did not fall under Section 21, we would
complete the review and recommend their release. If
however, we agreed with the claim of Section 21, those
records would not be recommended for disclosure to the
Applicant. As recently stated by the Honourable Justice
Fowler in a previous court decision, "It must be
remembered that the Commissioner under no circumstances
can release information or order the head of a public
body to release information. He can only recommend such
release which can be refused by the head of the public
body resulting in an appeal to the Trial Division."
Prior to this case, this Office had dealt with 49 cases
where solicitor and client privilege was claimed, and in
all cases those records were provided to the
Commissioner for review. Again, in all 49 cases, the
information was reviewed, and where the solicitor and
client exception applied, the information was not
recommended for release. With the subject case, the
public body refused to provide any of the responsive
records to the Commissioner citing Section 21. This
raises the question, does the Commissioner simply accept
the opinion of the head of the public body that the
information being requested does indeed fall under
Section 21? If that were the case, it could arguably be
seen to erode the confidence of the public in the Act
by the appearance or perception that the process is not
independent, transparent or accountable. It could also
be argued that the head of the public body could
intentionally withhold information from review by the
Commissioner by simply stating that it falls under
Section 21. What has occurred in this case is that the
public body has applied a Section 21 blanket exception
to all the responsive records subject to the request
based on the fact that the records were forwarded to
legal counsel for review. The question then becomes, how
can the Commissioner confirm that the exception is
properly claimed?
Bearing in mind the relatively large number of previous
requests for review where Section 21 has been claimed,
the current situation proves problematic and could
significantly impact the Commissioner's mandate to
provide appropriate oversight of the Legislation,
particularly if Section 21 continues to be claimed
often, or perhaps increases in frequency.
Furthermore, this Office takes great pride in the high
percentage of reviews and complaints that are able to be
resolved informally. This can only occur when applicants
can be assured that the Commissioner's Office, as an
independent body, has reviewed the records in question
and can provide the necessary assurance that Applicants
have received all appropriate records. The alternatives
to informal resolutions would likely include more formal
reports being issued by this Office, causing additional
delay and greater impact on the time and resources of
both public bodies and applicants. A further alternative
would involve much more frequent recourse to the courts
which would cause even greater impact on the time and
financial resources of all concerned.
In light of the above, Commissioner Ring stated that,
"The situation is of great enough significance that the
decision of Madam Justice Marshall will be appealed."
Appropriate direction has been provided to the
Commissioner's legal counsel to proceed with the appeal.
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Media contact:
Ed Ring
Information and Privacy Commissioner
709-729-6309
2010 03
25
3:35 p.m.
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