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Document
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PO-1848-F
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File #
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PA-990433-1
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Institution/HIC
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Ministry of Energy, Science and Technology
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Summary
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NATURE OF THE APPEAL: The appellant submitted a request under the Freedom of Information and Protection of Privacy Act (the Act ) to the Ministry of Energy, Science and Technology (the Ministry) for access to all records pertaining to the exemption of Ontario Hydro's successor companies from the Act . The request was clarified with the requester to exclude legislation, public hearings and any documents of a public nature. Following consultation, the Ministry granted partial access to the records. Access was denied or partially denied to the remaining records on the basis of the following sections of the Act : cabinet records - sections 12(1) and 12(1)(a), (b), (d) and (e); advice or recommendations - section 13(1); solicitor-client privilege - section 19; and invasion of privacy - section 21(1). The decision letter was accompanied by an index which set out the specific exemptions applied to each record as well as those parts of the records which were considered not responsive to the request. The appellant appealed the denial of access to the records. During mediation, the Mediator reviewed all portions of the records which the Ministry claimed were not responsive to the request and advised the appellant that she concurred with the Ministry's position. The appellant agreed that the portions of records considered non-responsive could be eliminated from the scope of the appeal. In addition, portions of Records 21, 23, 24 and 25, consisting of the names and addresses of individuals were withheld under section 21(1). The appellant advised that he is not seeking access to this personal information. As a result of the discussions held during mediation, the following aspects of the appeal were resolved: Record 6 is no longer at issue in this appeal as part of this document was disclosed and the remaining parts are not responsive to the request; Sections I, II and IV of Records 10 and 11 are not responsive to the request and these sections have been eliminated from the appeal. The remaining parts of these records are still at issue; Sections 1 and 2 of Record 16 are not responsive to the request and these sections have been eliminated from the appeal. The remaining parts of this record are still at issue; Part of Record 25 is not responsive to the request and the remaining severances contain personal information. Therefore, this record is no longer at issue; Records 21, 23 and 24 contain personal information and are no longer at issue in this appeal. As a result of mediation, the mandatory exemption in section 21(1) is no longer at issue. During the course of the appeal, the appellant raised section 23, the so-called public interest override. I sent a Notice of Inquiry setting out the issues in the appeal to the Ministry, initially. The appellant submitted a similar request to (the former) Ontario Hydro, which is now represented for the purposes of dealing with the access request by Ontario Hydro Services Company pursuant to a Transfer Order made by the Lieutenant Governor in Council under the Electricity Act, 1998 . Ontario Hydro issued a decision which the appellant also appealed and Appeal PA-990434-1 was opened. One record at issue in the current appeal (Record 12), is the same as Record 1 in Appeal PA-990434-1. The Ministry was requested to address the issues arising with respect to this record in its submissions in the current appeal. I sent a Notice of Inquiry for Appeal PA-990434-1 to Ontario Hydro concurrently with the Notice I sent to the Ministry. For the sake of consistency, I also sent Ontario Hydro a copy of the Notice of Inquiry for the current appeal and provided it with an opportunity to address the issues arising in this appeal with respect to Record 12. Both the Ministry and Ontario Hydro submitted representations in response. I sent the non-confidential portions of these representations to the appellant along with the Notice of Inquiry. The appellant did not submit representations. I have dealt with the issues in Appeal PA-990434-1 in Order PO-1846. However, the representations submitted by Ontario Hydro pertaining to Appeal PA-990434-1 address the duplicated record in both appeals and I will, therefore, also consider them in this order. RECORDS: The records remaining at issue in this appeal consist of e-mails, notes and issues papers. The Ministry claims the application of section 12 for Records 7, 8, 9, 10 and 11; section 13(1) for Records 4, 5, 7, 8, 9, 10, 11, 15, 16 and 19; and section 19 for Records 1, 2, 3, 4, 5 and 12. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE 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. This section consists of two branches, which provide an institution with discretion to refuse to disclose: a record that is subject to the common law solicitor-client privilege (Branch 1); and a record which was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation (Branch 2). Although the wording of the two branches is different, the Commissioner's orders have held that their scope is essentially the same: In essence, then, the second branch of section 19 was intended to avoid any problems that might otherwise arise in determining, for purposes of solicitor-client privilege, who the "client" is... In my view, Branch 2 of section 19 is not intended to enable government lawyers to assert a privilege which is more expansive or durable than that which is available at common law to other solicitor-client relationships. (Order P-1342; upheld on judicial review in Ontario (Attorney General) v. Big Canoe , [1997] O.J. No. 4495 (Div. Ct.). This case dealt
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Legislation
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FIPPA
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12(1)
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Section 19
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Section 23
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13(1)
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Subject Index
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Signed by
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Laurel Cropley
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Published
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Dec 21, 2000
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Type
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Order – Final
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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