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Document
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P-1430
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File #
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P_9700067
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Institution/HIC
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Ministry of Natural Resources
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Summary
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NATURE OF THE APPEAL: The Ministry of Natural Resources (the Ministry) received a request underthe Freedom of Information and Protection of Privacy Act (the Act ). The request was for access to all correspondence between the Ministry and theMinistry of Environment and Energy (MOEE) regarding issues of compliancescheduling, non-compliance or exemption from any of the terms of EA-87-02, theEnvironmental Assessment by the Ministry for the management of timber on Crownlands in Ontario. The Ministry located six records containing information whichwas responsive to the request and denied access to them, in their entirety,claiming the application of the following exemptions contained in the Act : advice or recommendations - section 13(1) proposed plans, projects or policies of the Ministry - section 18(1)(g) solicitor-client privilege - section 19 The requester, now the appellant, appealed the Ministry's decision to denyaccess. Within the time period described in the Confirmation of Appeal sent bythe Commissioner's office, the Ministry withdrew its reliance on section 19 withrespect to Records 5 and 6 and confirmed that it was relying on sections 13 and18(1)(g) for Record 2. During the mediation of the appeal, the requester alsoraised the possible application of the "public interest override" insection 23 of the Act . A Notice of Inquiry was provided to the Ministry and the appellant. Representations were received from both parties. In the Inquiry stage of theappeal, submissions were also invited from the Ministry on the application ofsection 23 to the records. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE The Ministry indicates that it is relying on the section 19 exemption withrespect to Record 2. Section 19 of the Act consists of two branches,which provide a head with the 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 givinglegal 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-clientprivilege (Branch 1), the Ministry must provide evidence that the recordsatisfies either of two 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 legaladvisor, and (d)the communication must be directly related to seeking, formulating orgiving legal advice; OR 2.the record was created or obtained especially for the lawyer's brief forexisting or contemplated litigation. [Order 49] A record can be exempt under Branch 2 of section 19, regardless of whetherthe common law criteria relating to Branch 1 are satisfied. Two criteria mustbe satisfied in order for a record to qualify for exemption under Branch 2: 1.the record must have been prepared by or for Crown counsel; and 2.the record must have been prepared for use in giving legal advice, or incontemplation of litigation, or for use in litigation. [Order 210] The Ministry argues that Record 2, with the exception of its covering page,is exempt from disclosure under the second part of Branch 1 and Branch 2 of thesection 19 test. It submits that Record 2 was prepared especially in order tobrief counsel on the Ministry's progress in implementing the terms andconditions set forth by the Environmental Assessment Board (EAB) with respect totimber management. This was necessary as counsel was required to assess theMinistry's legal position with respect to a judicial review application whichhad been brought by the organization represented by the appellant. Finally, theMinistry argues that the record was used to brief Crown counsel for use inlitigation, as contemplated by Branch 2 of the exemption. I find that, with the exception of the covering page, Record 2 is properlyexempt under either the second part of Branch 1 or Branch 2 of the section 19exemption. The document was prepared specifically to brief Crown counsel withrespect to existing litigation, the judicial review application brought by theappellant's organization. I find, therefore, that Record 2, with the exceptionof the cover page, is exempt under section 19 of the Act . ADVICE OR RECOMMENDATIONS The Ministry has claimed the application of section 13(1) to all six of therecords at issue in this appeal. The appellant, however, submits that one ormore of the mandatory exceptions to the exemption contained in sections13(2)(a), (b), (d), (g), (i) or (j) apply in the circumstances. These sectionsstate that: (1)A head may refuse to disclose a record where the disclosure wouldreveal advice or recommendations of a public servant, any other person employedin the service of an institution or a consultant retained by an institution. (2)Despite subsection (1), a head shall not refuse under subsection (1) todisclose a record that contains, (a)factual material, (b)a statistical survey; (d)an environmental impact statement or similar record; (g)a feasibility study or other technical study, including a costestimate, relating to a government policy or project; (I)a final plan or proposal to change a program of an institution, or forthe establishment of a new program, including a budgetary estimate for theprogram, whether or not the plan or proposal is subject to approval, unless theplan or proposal is to be submitted to the Executive Council or its committees; (j)a report of an interdepartmental committee task force or similar body,or of a committee or task force within an institution, which has beenestablished for the purpose of preparing a report on a particular topic, unlessthe report is to be submitted to the Executive Council or its committees; The Ministry argues that each of the records at issue contain advice orrecommendations with respect to its position on how to proceed to adjust theterms and conditions of the EAB decision within the meaning of section 13(1). I have reviewed the records for which the Ministry has claimed section 13(1)and find that the covering memorandum to Records 1 and 2, as well as Records 5and 6 do not contain advice or recommendations, as contemplated by section13(1). The remainder of Record 1 and portions of Records 3 and 4 do contain theadvice or recommendations of public servants to government. In my view, thedisclosure of this information would inhibit the free flow of advice within thedeliberative process of governmental decision and policy making. Accordingly,Record 1 (with the exception of
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Legislation
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FIPPA
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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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Donald Hale
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Published
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Jul 22, 1997
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Type
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Order
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