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Document
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PO-2162
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File #
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PA-020301-1
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Institution/HIC
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Ministry of Labour
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Summary
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NATURE OF THE APPEAL: The Ministry of Labour (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for access to all records relating directly or indirectly to the decision to lay charges under the Occupational Health and Safety Act (the OHSA ) , against the requester's clients. Specifically, the requester sought access to: … copies of all records, including, but not limited to, correspondence, memos, notes, reports, e-mails, opinions or recommendations…copies of all records in the offices of the Minister and his staff, the Deputy Minister and his staff, the Investigation, Inspection and Enforcement Secretariat, the Legal Services Branch, the Occupational Health and Safety Branch, the Northern Region office, the Sault Ste. Marie District Office (or any satellite office) and the Policy and Communications Division. The Ministry identified 16 responsive records located in two program areas: the Sault Ste. Marie District Office and the Legal Services Branch. The Ministry denied access to all of these records, claiming that they qualify for exemption under section 19 of the Act (solicitor-client privilege). The requester, now the appellant, appealed the Ministry's decision. During mediation the Ministry revised its decision and granted access to two records. Mediation did not resolve the remaining issues, and the file was transferred to the adjudication stage of the appeal process. I sent a Notice of Inquiry to the Ministry, inviting submissions on the application of section 19. I also added section 21 and/or 49 of the Act to the scope of my inquiry. Before the Ministry submitted its representations, the appellant was provided with access to seven of the records in the context of disclosure proceedings relating to the OHSA prosecution. These records are no longer at issue in this appeal. The Ministry then provided representations in response to the Notice of Inquiry. I sent these representations to the appellant, along with a copy of the Notice, and he responded with representations. RECORDS: Records 3, 6, 7, 8, 9, 13,and 14 have been disclosed to the appellant and are no longer at issue in this appeal. The remaining seven records (Records 1, 2, 4, 5, 10, 11, and 12) consist of e-mail messages and handwritten notes, as described in an Index of Records prepared by the Ministry and provided to the appellant and this office. DISCUSSION: PERSONAL INFORMATION/RIGHT OF ACCESS TO ONE'S OWN PERSONAL INFORMATION Introduction "Personal information" is defined, in part, to mean recorded information about an identifiable individual, including the individual's name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual [paragraph (h)]. All of the records at issue in this appeal relate to individuals who are the subject of charges under the OHSA . Some individuals are identified by name in the records and, as far as I can determine, at least some of them are represented by the appellant. As such, I find that the records contain the personal information of the appellant's clients as defined in section 2(1) of the Act . Right of access to requester's own personal information Section 47(1) of the Act gives individuals a general right of access to their own personal information held by an institution. Section 49 provides a number of exceptions to this general right of access. Under section 49(a) of the Act , the institution has the discretion to deny an individual access to their own personal information in instances where the exemptions in sections 12, 13, 14, 15, 16, 17, 18, 19 , 20 or 22 would apply to the disclosure of that information. The Ministry claims that all remaining records qualify for exemption under section 19. Should I find that this exemption applies, I must also satisfy myself that the Ministry has properly exercised discretion under section 49(a) in denying access to any exempt records. DISCRETION TO REFUSE REQUESTER'S OWN INFORMATION/SOLICITOR-CLIENT PRIVILEGE The Ministry claims that all of the records fall within the scope of the section 19 exemption. 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. Branch 1 includes two common law privileges: solicitor-client communication privilege; and litigation privilege. Branch 2 contains two analogous statutory privileges that apply in the context of Crown counsel giving legal advice or conducting litigation. Here, the Ministry relies on common law solicitor-client communication privilege and common law litigation privilege under Branch 1. Common law solicitor-client communication privilege under Branch 1 General principles 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.)]. Representations The Ministry submits that all of the records involve confidential communications between a Ministry counsel and his client or were prepared for giving advice to the client. The Ministry's representations include an affidavit sworn by the counsel outlining his roles and responsibilities and the context in which the records were created. He deposes: That the items not disclosed include communications between myself and the Ministry of Labour Inspector in charge of the investigations leading to the prosecution, his District Manager, and/or officers of the Ontario Provincial Police; handwritten notes made by myself relating to communications with t
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Legislation
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Jul 11, 2003
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Type
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Order
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