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Document
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P-1441
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File #
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P_9600438
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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 appellant submitted a request under the Freedom of Information andProtection of Privacy Act (the Act ) to the Ministry of NaturalResources (the Ministry). The request was for access to all information in theMinistry's possession relating to the introduction of the Aboriginal CommunalFishing Licences Regulations (ACFLR) in June 1993 and subsequent amendments inMay and August 1994 and in January 1995. The Ministry granted partial access to the records it identified asresponsive to the request, claiming the following exemptions found in the Act : advice and recommendations - section 13 relations with other governments - section 15 economic and other interests - sections 18(1)(e) and (g) solicitor-client privilege - section 19 invasion of privacy - section 21 The appellant appealed the denial of access. During mediation, the Ministrydisclosed additional records to the requester. The Ministry disclosed a portionof Record 1-19b, and claimed that the undisclosed portion is not responsive tothe request. The appellant does not dispute the responsiveness of theundisclosed portion of Record 1-19b, and this record is, therefore, no longer atissue. The appellant has narrowed the scope of the appeal by not pursuing access tothe information severed from Records 3-1 to 3-16d, 3-22, 3-23 and 3-27 to 3-38. Accordingly, these records and the application of section 21 of the Act are no longer at issue. In addition to the exemptions originally claimed, the Ministry has appliedsection 12 of the Act to Record 1-7. The Ministry has also withdrawnall of the exemptions previously claimed for 33 of the records at issue, and hasagreed to provide access to three additional records and parts of a fourth. Therecords and exemptions remaining at issue are summarized in Appendix A attachedto this order. This office provided a Notice of Inquiry to the Ministry, the appellant and15 parties whose interests could be affected by the outcome of this appeal (theaffected parties). Representations were received from the Ministry, theappellant and two of the affected parties. DISCUSSION: CABINET RECORDS The Ministry submits that Record 1-7 falls within section 12(1)(f), whichstates: A head shall refuse to disclose a record where the disclosure would revealthe substance of deliberations of the Executive Council or its committees,including, draft legislation or regulations. I have examined this record and I find that it is a draft regulation, and isproperly exempt under section 12(1)(f) of the Act . SOLICITOR-CLIENT PRIVILEGE The Ministry submits that Records 1-6, 1-9a, 1-11, 1-25, 1-26c, 1-47, 1-78and 1-104 qualify for exemption under section 19 of the Act . Thissection consists of two branches, which provide a head with the discretion torefuse 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). The Ministry submits that the records fall within Branch 1 of the exemption. 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 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 legaladviser, 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] The records are letters and memoranda to and from two lawyers inthe Ministry's Legal Services Branch. The Ministry states: In that correspondence, these solicitors provide legal advice to theirclient, the Ministry, or provide updates upon the status of their legal work. Having reviewed the records, I am satisfied that Records 1-6, 1-9a, 1-11,1-47, 1-78 and 1-104 are confidential written communications between a clientand a legal adviser which are directly related to seeking, formulating or givinglegal advice and, therefore, qualify for exemption under the first part ofBranch 1 of section 19. Records 1-25 and 1-26c are letters from a Ministry lawyer to a lawyer withthe Government of Canada. The Ministry relies on Branch 1 of the section 12exemption for both records. In Susan Hosiery Limited v. Minister ofNational Revenue [1969], 2 Ex. C.R.27, the criteria for the first part ofthe common law solicitor-client privilege are described as follows: ... all communications, verbal or written, of a confidential characterbetween a client and a legal advisor directly related to the seeking,formulating or giving of legal advice or legal assistance (including the legaladvisor's working papers directly related thereto) are privileged ... It is clear from the submissions that the Ministry's solicitor preparedRecords 1-25 and 1-26c for the purposes of preparing a legal opinion for hisclient, the Ministry. I find that I have been provided with sufficient evidenceto demonstrate that these records were directly related to the preparation oflegal advice, which was then communicated to the client. Accordingly, I findthat Records 1-25 and 1-26c constitute part of the solicitor's working paperswithin the meaning of the criteria expressed in Susan Hosiery . As such,Records 1-25 and 1-26c satisfy the requirements of the first part of thesolicitor-client privilege test and are exempt from disclosure. In view of thisfinding, it is not necessary for me to consider the application of sections 9and 10 of the Act to these records. RELATIONS WITH OTHER GOVERNMENTS For a record to qualify for exemption under section 15(a), the Ministry mustestablish that: 1.the relations must be intergovernmental, that is relations between aninstitution and another government or its agencies; and 2.disclosure of the records could give rise to a reasonable expectation ofprejudice to the conduct of intergovernmental relations. [Order P-908] In relying on this exemption, the Ministry refers to Ontario'sintergovernmental relations with Canada. The records are correspondence betweenthe Ontario Government and the Government of Canada over the issue of aboriginalfishing and the ACFLR and correspondence o
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Legislation
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FIPPA
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12(1)(f)
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15(a)
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18(1)(e)
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18(1)(g)
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Section 19
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Section 23
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13(1)
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17(1)
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Subject Index
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Signed by
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Holly Big Canoe
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Published
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Aug 11, 1997
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Type
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Order – Interim
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