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Document
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P-586
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File #
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P-9300131
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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 under the Freedom of Information and Protection of Privacy Act (the Act ) for access to a series of records relating to five compliance investigations undertaken by the Office of the Information and Privacy Commissioner (the IPC). The Ministry located a total of 94 records which were responsive to the request and released many of them to the requester. Following mediation efforts, a total of 11 records remain outstanding. These consist of 10 memoranda (designated as Records A8, A13, A54, A55, A56, B10A, B10B, B11, B13 and B14) and one letter (Record A7). Record B11 is a duplicate of Record A8 and I will not refer to Record B11 again in this order. The Ministry claims that these records are exempt from disclosure in their entirety pursuant to sections 19 and 52(9) of the Act . The requester has appealed this denial of access and also questions whether the person who made the decision to withhold the records had the requisite authority to do so. Finally, the appellant submits that additional records responsive to his request should exist in named locations within the Ministry. Further mediation was not successful and notice that an inquiry was being conducted to review the Ministry's decision was sent to the Ministry and to the appellant. Representations were received from both parties. PRELIMINARY ISSUE: The appellant submits that the Director of Legal Services for the Ministry lacked the delegated authority under section 62(1) of the Act to deny access to the responsive records. Section 62(1) of the Act provides as follows: A head may in writing delegate a power or duty granted or vested in the head to an officer or officers of the institution subject to such limitations, restrictions, conditions and requirements as the head may set out in the delegation. Along with its representations, the Ministry has provided the Commissioner's office with a copy of the institution's Delegation of Authority document which was in effect at the time that the relevant decision was issued. This document indicates that the various Directors within the Ministry had, among other powers, the delegated authority to grant access to records in part and to apply exemptions under sections 12 through 22 and 49 of the Act . On this basis, I am satisfied that the Director of Legal Services had the requisite delegated authority to apply the exemption contained in section 19 of the Act . I note that the Ministry also denied access to the records under section 52(9) of the Act and that the delegation document does not refer specifically to this provision. Section 52(9) of the Act provides as follows: Anything said or any information supplied or any document or thing produced by a person in the course of an inquiry by the Commissioner under this Act is privileged in the same manner as if the inquiry were a proceeding in a court. Section 52(9) of the Act creates a particular type of privilege for information supplied, or documents or things produced, during an inquiry. In my view, it is not necessary that this privilege be referred to expressly in the document which delegates a head's powers under section 62(1) of the Act . As a result, I am satisfied that the decision-maker had the authority to claim that the privilege referred to in section 52(9) applies to the records at issue. ISSUES: The remaining issues to be addressed in this appeal are the following: A. Whether the discretionary exemption provided by section 19 of the Act applies to the records at issue. B. Whether the privilege provided by section 52(9) of the Act applies to the records at issue. C. Whether the Ministry's search for responsive records was reasonable in the circumstances of this case. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the discretionary exemption provided by section 19 of the Act applies to the records at issue. The Ministry has claimed that section 19 of the Act applies to each of the ten records which remain at issue. This provision states that: 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 provides an institution with the discretion to refuse to disclose: (1) A record that is subject to the common law solicitor-client privilege (Branch 1); OR (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). In order for a record to be subject to the common law solicitor-client privilege (Branch 1), the institution 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 must be between a client (or his agent) and a legal adviser; 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 a lawyer's brief for existing or contemplated litigation. To meet the requirements for inclusion under the second branch, the institution must demonstrate that: (1) The record was prepared by or for "Crown counsel"; and (2) The dominant purpose for the preparation of the record was for use in giving legal advice, or in contemplation of litigation, or for use in litigation. [Order P-218] In general, legal advice will include a legal opinion about a legal issue, and a recommended course of action, based on legal considerations, regarding a matter with legal implications. It does not include information given about a matter with legal implications, where there is no recommended course of action, based on legal considerations, and where no legal opinion is expressed. In its representations, the Ministry did not indicate whether it was relying on the
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Legislation
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FIPPA
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52(9)
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Section 19
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62(1)
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Subject Index
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Signed by
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Irwin Glasberg
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Published
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Nov 25, 1993
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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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