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Document
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P-579
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File #
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P-9300260
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Institution/HIC
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Ministry of Health
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Summary
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ORDER BACKGROUND: The Ministry of Health (the Ministry) received a request pursuant to the Freedom of Information and Protection of Privacy Act (the Act) for access to a copy of "the legal opinion on which the Ministry based its decision to purchase [a named drug] exclusively from the pharmaceutical firm [a named company]". The Ministry identified two records as being responsive to the request, a 17-page legal opinion and a one-page summary of the opinion. The Ministry denied access in total to both records pursuant to section 19 of the Act . The requester appealed. Mediation was not successful and notice that an inquiry was being held to review the Ministry's decision was sent to the Ministry and the appellant. Representations were received from both parties. Although the Ministry identified both the legal opinion and the summary as being responsive to the request, in my view, the request is clearly for access to a copy of the opinion itself. Accordingly, it is only that record which is responsive to the request and will be considered in this order. Before discussing the applicability of section 19 of the Act to the record at issue, I wish to provide some background information on the creation of the record and the matters that lead to this appeal. In June of 1992, the Deputy Director of the Legal Services Branch of the Ministry requested that outside counsel provide the Ministry with a legal opinion relating to various questions that had arisen concerning the allegation of the named company that another pharmaceutical company had infringed its patent for the named drug by producing a generic version of the drug. The Ministry requested the opinion in order to make a decision whether to continue purchasing the brand name version of the named drug from the named company or to purchase the generic version. The opinion was received by the Ministry in July of 1992. Subsequent to receiving the opinion, the Ministry decided to continue to purchase the named drug from the named company. The appellant, and other companies in a similar position, then wrote to the Minister of Health requesting, on an informal basis, a copy of the legal opinion. On February 26, 1993, the Minister wrote to the appellant stating that "... Recent inquiries have suggested that it might be useful for the generic drug industry to have a fuller explanation of the Ministry's legal advice". The letter continued "... The Ministry sought legal advice concerning the purchase of [the named drug]" and provided a two-page summary of some of the conclusions stated in the legal opinion which the Ministry had received from outside counsel. When the Ministry subsequently denied the appellant access to the opinion pursuant to its "formal" Freedom of Information request, claiming the exemption in section 19 of the Act , the appellant appealed on the basis that the Minister's letter constituted waiver of the solicitor-client privilege associated with the legal opinion. The appellant subsequently served the Ministry with notice under the Proceedings Against the Crown Act indicating an intention to commence litigation with respect to the Ministry's contract with the named company. The sole issue in this appeal is whether the discretionary exemption provided by section 19 of the Act applies to the record. This section states: 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. Prior to considering the application of this section of the Act to the record at issue, I would like to address one of the submissions of the appellant. The appellant submits that: We are not talking of allowing effective communication between solicitor and client; we are talking about obtaining the real reason for the Ministry's decision, in a manner that would enable the affected public to question it. In other words, we are talking of the very reason for the existence of the Freedom of Information and Protection of Privacy Act . To allow the Minister to keep the reason for her decision from the public simply because the reason happened to be embodied in a legal opinion would be to put form over substance, and would render the Act , in this case, chimerical. [emphasis added] The scheme of the Act , and the basis of the exemptions contained therein, requires an examination of the type of information at issue or the nature of the record to determine if access to the requested record or information should be granted. If, as the Ministry submits, the information requested is contained in a record that is subject to solicitor-client privilege, the Act provides an institution with the discretion to refuse to disclose the record. To take another example, if the reason for the Minister's decision was embodied in a Cabinet record, then section 12 of the Act , because of its mandatory nature, would preclude any disclosure at all. Therefore, the characterization of the information at issue in any case is critical to the analysis of the application of the exemption. Accordingly, I will consider the application of the section 19 exemption to the record at issue. Section 19 consists of two branches, which provide the Ministry with discretion to refuse to disclose: (1) a record that is subject to the common law solicitor-client privilege (Branch 1); and (2) 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). [Order 49] I will first consider the application of Branch 1, the common law solicitor-client privilege. In order for the common law solicitor client privilege to apply to a record, the Ministry must provide evidence that the record satisfies either of the following tests: 1. (a) there is a written or oral communication; and (b) the communication must be of a confidential nature; and (c) the communication is between a client (or his agent) and a legal advisor; and (d) the communication must be directly related to seeking, formulating or giving legal advice; or 2. the record was created or obtained especially for the lawyer's brief for existing or
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Legislation
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Subject Index
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Signed by
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Anita Fineberg
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Published
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Nov 18, 1993
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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