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This tight-fisted stance means knuckles rapped
By donalee Moulton

November 11 2011 issue


A recent Newfoundland Court of Appeal ruling will resonate across the country, says Anna Cook, a partner with Cox & Palmer in St. John’s, who represented provincial Privacy Commissioner Ed Ring. [Photo by Maurice Fitzgerald for The Lawyers Weekly]


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The Newfoundland and Labrador Department of Justice has had its knuckles rapped by the court of appeal for failing to hand over requested information to the provincial privacy commissioner. The DOJ claimed solicitor-client privilege prevented sharing the information. The court made it clear that argument did not hold up to legal scrutiny — a determination that is resonating across the country.

“This decision is a very important one in the area of access to information, and since there is very little jurisprudence on the point, it has bearing right across the country. I understand it has already been filed in some court cases that are currently ongoing,” said Anna Cook, a partner with Cox & Palmer in St. John’s who represented the Information and Privacy Commissioner.

“The court of appeal has confirmed that the information and privacy commissioner has the right to independently verify claims of solicitor-client privilege being made by public bodies,” she added.

Not surprisingly, the decision sits well with Commissioner Ed Ring. “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,” he said in a news release issued to media on the heels of the appeal court decision.

Until the judicial green light from the province’s highest court, the commissioner had been effectively prevented from fulfilling his mandate, Ring said, because his ability to review records where there was a claim of solicitor-client privilege had been removed. Last year Justice Valerie Marshall of the Supreme Court Trial Division concluded section 52 of the Access to Information and Protection of Privacy Act (ATIPPA) did not oblige the Department of Justice to produce records claimed as solicitor-client privileged to the commissioner for review.

“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,” Ring said.

“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,” he noted. “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 access comes with the court of appeal ruling, which overturned the trial division decision. “Section 52 of ATTIPA is unambiguous and explicitly permits the commissioner to abrogate a claim to solicitor-client privilege in order to verify the legitimacy of such a claim in the discharge of his statutory mandate,” Justice Michael Harrington wrote in his 26-page decision.

Without such access, he noted, “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 public servant or citizen from pressing a claim for access to documents in court.”

The case, Newfoundland and Labrador (Information and Privacy Commissioner) v. Newfoundland and Labrador (Attorney General), 2011 NLCA 69, revolves around a justice department employee who requested access to certain documents in a file of a DOJ solicitor. Those documents related to an internal human resources issue affecting the employee and included copies of correspondence, notations, and e-mails. The requested information specifically involved communications between the minister, deputy minister and other senior departmental officials.

The request was denied on the basis of Section 21 of ATIPPA, which allows the head of a public body to refuse to disclose to an applicant information that is subject to solicitor-client privilege or that would reveal legal opinions provided to a public body by an officer of the Crown.

So the employee requested that the privacy commissioner review the decision. The commissioner, in turn, requested access to the documents in question.

Having determined that s. 52 gives the commissioner the authority to compel the production of material subject to solicitor-client privilege, the appeal court also addressed the issue of whether “the routine production” of materials is required.

The court found it is. “The purpose of the legislation … is to provide for an independent review officer which can undertake a timely and affordable first level review of all information request denials. This access to justice rationale mandates that the commissioner’s routine exercise of his authority to review solicitor-client privileged materials is absolutely necessary,” said Justice Harrington.

“The purpose of ATIPPA is to create an alternative to the courts,” he added. “This goal would be defeated if the commissioner cannot review denials of access to requested records where solicitor-client privilege is claimed and was forced to resort to applications to court to compel production.”

There are significant benefits to allowing an outside and impartial review of material, said Cook. “Such an independent review is beneficial for both the citizen and the public body alike.”

The appeal court also noted that the justice department had not demonstrated that all the requested information was, in fact, protected by solicitor-client privilege. “In principle an employment file would likely contain documents (like pay stubs, memos, etc.) that on their face would not normally be considered solicitor-client privileged,” Justice Harrington said. “Yet the DOJ in this case is claiming privilege for the whole file, not on a document-by-document basis. No affidavit was filed by the minister with the commissioner identifying, generally, the type of documents in issue and explaining why particular ones met the test for solicitor-client privilege.”

Both the privacy commissioner and the Court of Appeal put forward appeals for reasonableness and co-operation moving forward. In his decision, Justice Harrington noted that, “The key to all this is good faith in the exercise of authority. With that comes mutual trust, by the commissioner that senior Justice officials are being truthful and by Justice officials that the commissioner will not unreasonably call for the production of legal opinions and advice. Co-operation should be the rule and litigation very much the exception.”

For his part, the commissioner is asking the Department of Justice and the government to forgo further legal action. “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,” Ring said.

“I call on the premier to carefully review this decision by the Court of Appeal,” he added, “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.”

Citation: Newfoundland and Labrador (Information and Privacy Commissioner) v. Newfoundland and Labrador (Attorney General), 2011 NLCA 69

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