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Document
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PO-1879
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File #
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PA_000112_1
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Institution/HIC
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Ministry of the Attorney General
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Summary
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NATURE OF THE APPEAL: The Ministry of the Attorney General (the Ministry) received a request under the Freedom of nnformation and Protection of Privacy Act (the Act ), from a lawyer, for the following: all materials filed by the Crown in support of the application to declare a named individual a dangerous offender; any materials filed by the named individual in response to the application; copies of all documents made exhibits at the dangerous offender application; any other documentation in the Ministry's file relating to the named individual. The Ministry identified one responsive record, consisting of a two-volume, 353-page package of documents, and denied access to this record in its entirety pursuant to the exemptions at sections 19 (solicitor-client privilege) and 21(1) (invasion of privacy) of the Act . The Ministry identified the presumption in section 21(3)(b) of the Act in support of the section 21(1) exemption claim. In a supplementary decision letter, the Ministry identified section 15(b) (relations with other governments) as an additional exemption claim for page 331, and claimed that pages 71-75 fall outside the scope of the Act . The requester (now the appellant) appealed the Ministry's decision. During mediation, the appellant identified the factor described in section 21(2)(d) as a relevant consideration in determining whether disclosure would constitute an unjustified invasion of personal privacy. The appellant also took the position that the Ministry's decision letter was inadequate, in that it failed to provide reasons for denying access under section 21(1), and thereby failed to satisfy the requirements of section 29(1)(b)(ii) of the Act . Mediation was not successful, so the appeal proceeded to the adjudication stage. I sent a Notice of Inquiry initially to the Ministry, and received representations in response. I then sent the Notice to the appellant, together with the non-confidential portions of the Ministry's representations. The appellant did not provide representations. RECORDS: The record consists of a two-volume, 353-page package of documents pertaining to the dangerous offender application made by the Attorney General regarding the individual identified in the appellant's request. PRELIMINARY ISSUE: Adequacy of Decision Letter Section 29(1)(b)(ii) reads: Notice of refusal to give access to a record or a part thereof under section 26 shall set out, where there is such a record, the reason the provision applies to the record, The Ministry's decision letter states the following in regard to section 21: Access to the record (approximately 353 pages) is denied pursuant to the following subsections and/or sections of the Act : section 21 as the record contains personal information of other individuals and disclosure of that information would constitute an unjustified invasion of personal privacy; and subsection 21(3)(b) as the personal information was compiled and is identifiable as part of an investigation into a possible violation of law. The Ministry has chosen to simply use the language of the particular sections in order to explain why these provisions apply in the context of this appeal. As stated in previous orders, the purpose of section 29(1)(b) is to put the requester in a position to make a reasonably informed decision on whether to appeal the head's decision (see, for example, Orders 158, P-235, P-324 and M-936). A restatement of the language of the legislation is generally not sufficient to satisfy the requirements in section 29(1)(b)(ii) (Order M-936). In future, I would encourage the Ministry to expand on the reasons it provides to requesters for denying access to records. That being said, the appellant in this case is aware that a dangerous offender application was made by the Attorney General regarding the named individual and, as a lawyer, would be generally aware of the types of documents associated with an application of this nature and the type of personal information typically included. The appellant was also provided with a copy of all non-confidential portions of the Ministry's representations which, when combined with other information within the appellant's knowledge, is, in my view, sufficient information to enable him to address the issues in this appeal. DISCUSSION: Solicitor-Client Privilege General Section 19 of the Act 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. The Ministry submitted the following in their representations. This exemption covers records subject to the common-law solicitor-client privilege (Branch 1) or those records prepared by or for Crown counsel or counsel employed or retained by an institution, for use in giving legal advice or in contemplation of or for use in litigation (Branch 2). The common law privilege applies to: (i) all communications, verbal or written, of a confidential character, between a client, or his or her agent, and a legal adviser directly related to the seeking, formulating or giving of legal advice or legal assistance (including the legal adviser's working papers directly related thereto); and (ii) papers and materials created or obtained especially for the lawyer's brief for litigation, whether existing or contemplated. Branch 2 can apply regardless of whether the common-law privilege applies." I do not accept the Ministry's statement that "branch 2" of the section
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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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Mar 14, 2001
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Type
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Order
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© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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