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Document
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PO-2022-I
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File #
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PA-010349-1
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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 Information and Protection of Privacy Act (the Act ) for access to any information held by the Crown Attorney's office in Toronto pertaining to the requester and six named individuals. The request was subsequently clarified to be for records relating to a specified criminal matter from the 1980s. In particular, the requester wanted to know why this matter did not proceed to trial. She also identified in her request that the office of the Assistant Deputy Attorney General had more recent dealings with this matter, and she wanted access to a report that was prepared by a Ministry legal counsel in this context. The Ministry issued a decision dated September 4, 2001, in which it stated the following: This is to advise that a search of [sic] the crown brief was conducted at the Office of the Crown Attorney in Toronto. However, no record was located. Accordingly, the Ministry is not in possession of the crown brief. With respect to the report, this is to advise that access to the record is denied under section 19 of the Act as the record was prepared by Crown Counsel for use in giving legal advice. The requester (now the appellant) appealed the Ministry's decision to deny access. During mediation, the appellant indicated that additional records should exist in the office of a named Ministry employee, because she met with this employee in 1999 on issues stemming from the prior criminal charges. The Ministry agreed to conduct an additional search for records in this employee's office, but subsequently advised the mediator that no additional records were located. The appellant did not accept the Ministry's position, and the reasonableness of the Ministry's search remains an issue in this appeal. In a follow-up letter to the appellant, the Ministry advised her that, because the one identified record contained her personal information, it was relying on section 49(a) of the Act as the basis for denying access. Further mediation was not successful, and the appeal proceeded to the adjudication stage. I sent a Notice of Inquiry to the Ministry initially, which set out the facts and issue in the appeal. The Ministry submitted representations in response, which were provided to the appellant along with a copy of the Notice of Inquiry. The appellant also submitted representations. RECORD: The record is a 2-page memorandum dated January 10, 2001 from a Ministry legal counsel to the Assistant Deputy Attorney General. DISCUSSION: PERSONAL INFORMATION Personal information is defined in section 2(1) of the Act as "recorded information about an identifiable individual". Having reviewed the record, it is clear from its face that it contains the appellant's personal information as defined in section 2(1). Specifically, the record contains details regarding the appellant's complaint to the Law Society of Upper Canada. It is also clear that any other individual identified in the record is referred to in a professional capacity as legal counsel, and not in any personal capacity. DISCRETION TO REFUSE REQUESTER'S OWN INFORMATION/SOLICITOR-CLIENT PRIVILEGE Introduction 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 Board has the discretion to deny the appellant access to his 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. 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 encompasses two heads of privilege, as derived from the common law: (i) solicitor-client communication privilege; and (ii) litigation privilege. In order for section 19 to apply, the institution must establish that one or the other, or both, of these heads of privilege apply to the records at issue. 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 professional legal advice. 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 Supreme Court of Canada has described this privilege as follows: ... all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attaching to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship ... [ Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 at 618, cited in Order P-1409] The Ministry submits: The Ministry claims exemption of the entire document under the solicitor-client communication and "legal advice" components of section 19. The document at issue consists of a communication between Crown counsel and the Ministry (as represented by the Assistant Deputy Attorney General) and was prepared for use in giving legal advice. The document recommends a particular course of action based on legal considerations arising from a complaint made to the Law Society of Upper Canada. Therefore, as outlined above, the record falls squarely within the scope of section 19. As part of its legal advice, Crown counsel drafted a letter to counsel to the Law Society of Upper Canada. This letter was ultimately copied to the Appellant. At no time, however, did the Ministry waive or purport to waive its claim of privilege in respect of the legal memorandum at issue. The memorandum was always intended to be confidential legal advice to the Assistant Deputy Attorney General. The Ministry still does not waive privilege in respect of this protected communication. The appellant's representations do not address the requirements of solicitor-client communication privilege. Having reviewed the record, I accept the Ministry's position. The document is accurately described as a written communication prepared by counsel and submitted to her internal client (the Assistant Deputy Attorney General), and consists of legal advice, specifically a recommended course of action in the context of the Law Society complaint referred to by the Ministry in its representations. Given the nature of the information contained in the record and the context in which it was prepared, I accept the Ministry's submission that it was a confidential communication. Accordingly, the requirements of solicitor-client communication privilege have been established, and I find that the record falls within the scope of the section 19 exemption claim. EXERCISE OF DISCRETION Sect
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Legislation
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FIPPA
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Section 19
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24(1)
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49(a)
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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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Jun 06, 2002
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Type
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Order – Interim
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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