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Document
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PO-2370
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File #
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PA-040146-1
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Institution/HIC
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Archives of Ontario
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Summary
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NATURE OF THE APPEAL: The Archives of Ontario (the Archives) received a request under the Freedom of Information and Protection of Privacy Act (the Act ), for a copy of a report on kickboxing. In his letter, the requester specified the date the report was created and the file number. Subsequently, the requester clarified that he wished to obtain a copy of the entire file entitled “kickboxing”. This file had been created by the Ministry of Consumer and Commercial Relations (now the Ministry of Consumer and Business Services) and maintained by that Ministry prior to its transfer to the Archives. The Archives located 10 records responsive to the request and granted partial access to them. The Archives denied access to some of the records, in full or in part, pursuant to sections 13(1) (advice or recommendations), 19 (solicitor-client privilege), and 21(invasion of privacy). The Archives identifies sections 21(2)(f), 21(2)(h) and 21(3)(g) in support of the section 21 claim. In its decision letter, the Archives provided the requester with a fee estimate for processing the request and advised that payment was required before the records could be disclosed. The requester paid the fee and the records were disclosed to him. The requester, now the appellant, appealed the Archives’ decision to deny access to some records, either fully or in part. During mediation, the Archives granted partial access to an additional record, which had not been located at the request stage. Also during mediation, the Archives withdrew the section 13(1) exemption claim. To confirm these changes, the Archives created an Index of Records, which provided further information on the general nature of the undisclosed records/portions of records and indicated the exemptions that were being claimed for them. The Archives agreed to share the Index of Records with the appellant. Upon review of the Index of Records, the appellant narrowed the scope of his appeal to 5 of the 11 responsive records. The appellant also confirmed that the report on kickboxing was no longer at issue having been disclosed in its entirety by the Archives at the request stage. Further mediation was unsuccessful and the file was transferred to former Assistant Commissioner Tom Mitchinson for the adjudication stage of the appeals process. Since Assistant Commissioner Mitchinson’s retirement, I have taken over carriage of this appeal. Assistant Commissioner Mitchinson began his inquiry by sending a Notice of Inquiry setting out the facts and issues on appeal to the Archives. The Archives responded with representations. In its representations, the Archives stated that it had revised its initial position with respect to records 5 and 10. Upon further review of these records, the Archives determined that Record 10 may be disclosed to the appellant in its entirety and portions of Record 5 may also be disclosed. A new decision letter was subsequently issued and Record 10 and portions of Record 5 were released to the appellant. Former Assistant Commissioner Mitchinson then sent a copy of the Notice of Inquiry, along with a copy of the Archives’ representations, to the appellant. The appellant chose not to submit representations. RECORDS: The records that remain at issue in this appeal are listed in the Index of Records prepared by the Archives as Records 1, 2, 5, and 11. The records were all prepared by or for the Ministry of Consumer and Commercial Relations in 1983. These records, and the exemptions claimed for them, are as follows: Record 1 is a 4-page legal opinion about a newscast on kickboxing that aired on February 22, 1983. The Archives claims section 19 applies to the record. Record 2 is a 1-page staff commentary on a newscast on kickboxing that aired on February 22, 1983. The Archives claims section 21 applies to the record. Record 5 is a 6-page memorandum about the regulation of kickboxing. Portions of this record were disclosed during mediation. The Archives claims that portions of the record are exempt under section 19 and other portions are exempt under section 21. Record 11 is an 11-page memorandum to the Deputy Attorney General to the Director, Crown Law Office, Criminal. The final two pages of this record are a newspaper article and an advertisement. These pages were disclosed during mediation. The Archives claims that section 19 applies to the remainder of the record. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE The Archives takes the position that section 19 applies to Records 1, 11 and portions of Record 5. General principles Section 19 of the Act reads: A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation. Section 19 contains two branches. The Archives must establish that one or the other (or both) branches apply. The Archives claims that both Branch 1 and Branch 2 of the solicitor-client privilege exemption apply to the records. I will begin with an analysis of the application of Branch 1 to the records at issue. Branch 1: common law privileges This branch applies to a record that is subject to “solicitor-client privilege” at common law. The term “solicitor-client privilege” encompasses two types of privilege: solicitor-client communication privilege litigation privilege Common law litigation privilege has not been raised by the Ministry and has no application in the circumstances of this appeal. Solicitor-client communication privilege Solicitor-client communication privilege protects direct communications of a confidential nature between a solicitor and client, or their agents or employees, made for the purpose of obtaining or giving professional legal advice [ Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 (S.C.C.)]. The rationale for this privilege is to ensure that a client may confide in his or her lawyer on a legal matter without reservation [Order P-1551]. The privilege applies to “a continuum of communications” between a solicitor and client: . . . Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach [ Balabel v. Air India , [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.)]. The privilege may also apply to the legal advisor’s working papers directly related to seeking, formulating or giving legal advice [ Susan Hosiery Ltd. v. Minister of National Revenue , [1969] 2 Ex. C.R. 27]. Confidentiality is an essential component of the privilege. Therefore, the institution must demonstrate that the communication was made in confidence, either expressly or by implication [ General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.)]. The Archives relies on the common law solicitor-client communication privilege component of Branch 1 for Records 1, 11 and portions of Record 5. With respect to Record 1, the Archives submits: The Record is a legal opinion prepared by counsel in the Ministry of the Attorney General for the Director of the Legal Services Branch in the Ministry of Consumer and Commercial Relations. The opinion relates to a newscast on kickboxing that aire
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Legislation
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Subject Index
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Signed by
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Brian Beamish
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Published
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Feb 17, 2005
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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