We previously wrote about the Supreme Court of Canada’s ruling on whether the Alberta Information and Privacy Commissioner could order disclosure of records to verify a claim of solicitor-client privilege (read previous post). In that case, the Court concluded that the Alberta legislation was not clear enough to override solicitor-client privilege, with the result that the Alberta Commissioner could not order such disclosure.
The Alberta Commissioner has since requested amendments to the Alberta legislation to confirm the Alberta Commissioner’s powers when it comes to such records (read more). At the time of our last post, we noted that the wording in freedom of information legislation in Canada varied and may be subject to different judicial interpretation.
In this blog, we review a recent court decision which provides guidance to public bodies on the disclosure of records to the Saskatchewan Information and Privacy Commissioner to verify a claim of solicitor-client privilege.
In The Office of the Information and Privacy Commissioner, Saskatchewan v The University of Saskatchewan, 2017 SKQB 140, Justice Mills considered the Commissioner’s powers in relation to claims of solicitor-client privilege pursuant to The Local Authority Freedom of Information and Protection of Privacy Act (Saskatchewan) (“LAFOIP”). As the wording in LAFOIP in this respect is the same as that in The Freedom of Information and Protection of Privacy Act (Saskatchewan) (“FOIP”), the conclusions are relevant to both local authorities (subject to LAFOIP) and government institutions (subject to FOIP).
The decision involved what Justice Mills considered a “bald claim” of solicitor-client privilege by a local authority in the context of a review by the Commissioner, and a refusal by the local authority to provide the Commissioner with either copies of the records over which solicitor-client privilege were claimed or sufficient evidence to permit the Commissioner to conclude that the records were subject to solicitor-client privilege.
Section 43 of LAFOIP grants powers to the Commissioner to compel and review documents “notwithstanding any other Act or any privilege available at law.” Justice Mills concluded that this provision clearly allows the Commissioner to compel documents over which solicitor-client privilege is claimed.
He then went on to outline a two-step process for public bodies dealing with records over which solicitor-client privilege is claimed in the context of reviews by the Commissioner:
- A detailed affidavit may suffice as an initial step. Justice Mills noted that, in many circumstances, an affidavit submitted to the Commissioner by a public body would be sufficient for the Commissioner to make a determination as to the claim of solicitor-client privilege. Such an affidavit would need to contain sufficient information, including a description of the documents over which solicitor-client privilege is claimed with enough detail to enable the document to be identified and to permit the Commissioner to determine whether a prima facie case for privilege exists.
- If an affidavit is not sufficient, the Commissioner has the power to demand the actual documents. Justice Mills noted that, where the information in an affidavit is not sufficient, the Commissioner has the power to demand the actual documents for the purpose of examination on a document-by-document basis as to whether or not the claim for solicitor-client privilege is well-founded.
Justice Mills noted this is consistent with how Courts deal with claims involving solicitor-client privilege, and that section 43 gives the Commissioner power “in the same manner and to the same extent as” the Courts to obtain information.
Public bodies and others impacted by this decision may wish to seek the assistance of experienced legal counsel to provide guidance on the freedom of information process – such guidance can be valuable from the time an access request is made and throughout the process.
The Office of the Saskatchewan Information and Privacy Commissioner also provides helpful guidelines and resources.