October 28, 2011
The Information and Privacy Commissioner Comments on the Release of a Decision by the Newfoundland and Labrador Court of Appeal dated October 26, 2011
“The Court of Appeal decision makes it clear that public bodies are required to produce any records to my Office which I consider relevant to an investigation, including records which a public body claims are protected by solicitor-client privilege,” said Commissioner Ring. This decision overturned a decision at the Trial Division by Justice Valerie Marshall in 2010. The Marshall decision had meant that the Commissioner was prevented from effectively fulfilling his mandate because it removed his ability to review records where there was a claim of solicitor-client privilege.
In explaining its decision to overturn the Marshall decision, the Court of Appeal, at paragraph 54, illustrated the problem that would occur if the Commissioner was unable to review such records:
It would be too easy to have documents declared to be subject to solicitor-client privilege to delay resolution of a matter and to deter a … citizen from pressing a claim for access to documents in court.
Commissioner Ring commented that “this decision by the Court of Appeal upholds a key element of any modern democratic society, which is an effective access to information law. Such a law can only be effective if the Commissioner appointed to oversee the law can exercise all the powers necessary to do that job. As the Court stated in this decision, ‘a right of access to records is meaningless without a means of enforcing this right.’
Commissioner Ring went on to say that “prior to Justice Marshall’s ruling, we had conducted many reviews of access to information decisions where there had been a claim of solicitor-client privilege. In every case, we reviewed the relevant records and either issued recommendations to the public body, or in most cases resolved the matter informally to the satisfaction of both parties. Since Justice Marshall’s ruling we have been unable to access the relevant records in order to conduct reviews involving claims of solicitor-client privilege. As a result we have accumulated a number of files involving such claims. We now intend to access those records and get to work on those files.”
The Commissioner also expressed his wish that the Court of Appeal ruling be respected: “Of course the Attorney General has the right to seek leave to appeal to the Supreme Court of Canada on this matter. Further, and of greatest concern to me, is that the government has the ability, should it wish to do so, to simply amend the ATIPPA in order to take away once and for all this essential power of the Commissioner. I call on the Premier to carefully review this decision by the Court of Appeal, and before considering any amendment to the ATIPPA, to decide whether citizens of this province should enjoy the services of a strong Commissioner who is fully able to uphold the rights of citizens granted under that Act, or whether the citizens of this Province should stand at the back of the line and settle for having the weakest Commissioner of an access to information law in Canada. I believe government is well aware of my views on this matter.”
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Media contact:
Ed Ring
Information and Privacy Commissioner
709-729-6309
BACKGROUNDER
History of this Case:
In January of 2009 the Department of Justice refused access to records requested by an access to information applicant, claiming that the records were subject to solicitor–client privilege. The applicant requested that the Commissioner review the decision to deny access to the records. The Commissioner commenced his investigation, but the Department of Justice refused to comply with a request by the Commissioner to allow him to review records which the Department of Justice had refused to provide to the applicant. The Commissioner maintained that he required access to the records in order to carry out his mandate under the ATIPPA. The Attorney General for Newfoundland and Labrador responded in March of 2009 by seeking a declaration from the Court that the Commissioner was not entitled to review records of a public body where there has been a claim of solicitor–client privilege.
In February of 2010 Justice Valerie Marshall of the Supreme Court Trial Division rendered her decision in which she declared that section 52 of the ATIPPA does not oblige the Department of Justice to produce records claimed as solicitor–client privileged to the Commissioner for review.
This left Commissioner Ed Ring as the only Commissioner of an access to information statute in Canada with no ability to review such records. Commissioner Ring indicated at that time that “Without that ability, the accountability and transparency promised by the ATIPPA must be considered inferior to that which is enjoyed by Canadians in other jurisdictions. I believe that solicitor-client privilege is a principle which can be balanced with the twin pillars of transparency and accountability, as all three are essential underpinnings of our democracy.”
The Commissioner appealed the decision of Justice Marshall to the Court of Appeal, resulting in that Court’s decision of October 26th, 2011.
Role of the Information and Privacy Commissioner:
The Access to Information and Protection of Privacy Act (ATIPPA) gives citizens a right of access to records in the control or custody of a public body (provincial government departments, agencies, boards, municipalities, etc.). Included among the exceptions to the right of access is section 21: solicitor–client privilege. In reviewing decisions by public bodies in relation to access to information requests from citizens under the ATIPPA, the Commissioner requires public bodies to produce for his review a copy of any records relevant to his investigation. The Commissioner must then determine whether the decision of the public body is supported by the provisions of the ATIPPA, and where appropriate to make recommendations reflecting his findings.
2011 10 28 2:00 p.m.