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Document
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P-1075
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File #
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P-9500463
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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 billing records submitted to the Ministry by a lawyer appointed by the Official Guardian (now the Children's Lawyer) to represent the interests of the requester's son. The requester is the non-custodial parent and is involved in litigation with the child's mother over access to their son. The Ministry located records responsive to the request and granted access, in part, to them. The undisclosed portions of the records consist of the particulars of the services rendered by the lawyer on behalf of the requester's son as enumerated on each legal account. The Ministry claimed that the information which was not disclosed falls within the following exemptions contained in the Act : solicitor-client privilege - section 19 invasion of privacy - sections 21(1) and 49(b) discretion to refuse requester's own information - section 49(a) The requester appealed the Ministry's decision to deny access to the records and claimed that the public interest override provided by section 23 of the Act applied to the undisclosed information. In addition, the appellant submitted that additional records responsive to his request should exist. A Notice of Inquiry was provided to the Ministry, the appellant and to five individuals whose rights might be affected by the disclosure of the records (the affected persons). Representations were received from the Ministry and the appellant. PRELIMINARY ISSUE: In his representations, the appellant submits that the Divorce Act and the Children's Law Reform Act grant him a right of access to information about his son in addition to that which he may exercise under the Act . The proceeding in which the appellant is seeking access to his son is being conducted under the Children's Law Reform Act before a Judge of the Ontario Court (Provincial Division). I have not been provided with any evidence to indicate that a proceeding under the Divorce Act has been commenced. Section 20(5) of the Children's Law Reform Act provides as follows: The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. (emphasis added) I have reviewed the undisclosed portions of the records and find that the information which they contain do not relate in any direct or tangible way to the health, education or welfare of the child. I find therefore, that the provisions of the Children's Law Reform Act respecting the right of a non-custodial parent to make inquiries and obtain information about his or her child have no application in the present appeal. DISCUSSION: PERSONAL INFORMATION Under section 2(1) of the Act , "personal information" is defined, in part, to mean recorded information about an identifiable individual. In this case, the undisclosed information contained in the records pertain to the services provided by the lawyer appointed to represent the appellant's son in the access proceedings between the appellant and his former wife. I have reviewed the records and I find that all of them contain the appellant's personal information as well as personal information pertaining to other individuals. DISCRETION TO REFUSE REQUESTER'S OWN INFORMATION Section 47(1) of the Act gives individuals a general right of access to their own personal information held by a government body. Section 49 provides a number of exceptions to this general right of access. Under section 49(a) of the Act , the Ministry has the discretion to deny access to an individual's own personal information in instances where certain exemptions would otherwise apply to that information. Section 49(a) states as follows: A head may refuse to disclose to the individual to whom the information relates personal information, where section 12, 13, 14, 15, 16, 17, 18, 19 , 20 or 22 would apply to the disclosure of that personal information; (emphasis added) In order to determine whether the exemption provided by section 49(a) applies to the undisclosed information contained in the records, I will begin by considering the Ministry's claim that this information qualifies for exemption under section 19, which is referred to in section 49(a). SOLICITOR-CLIENT PRIVILEGE The Ministry claims that section 19 of the Act applies to the undisclosed information contained in the legal accounts which are at issue in this appeal. Section 19 consists of two branches, which provide the Ministry 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 giving legal advice or in contemplation of or for use in litigation (Branch 2). The Ministry indicates that it is relying on Branch 1 of the section 19 exemption. In order for a record to be subject to the common law solicitor-client privilege (Branch 1), the Ministry must provide evidence that the record satisfies 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 legal advisor, and (d) the communication must be directly related to seeking, formulating or giving legal advice; OR 2. the record was created or obtained especially for the lawyer's brief for existing or contemplated litigation. The appellant maintains that no solicitor-client relationship exists between his son and counsel, that since his son is very young he could not have instructed counsel and that he has been poorly represented. In essence, the appellant argues that he, as well as his son, is entitled to be considered the client in this solicitor-client relationship. I find, however, that a solicitor-client relationship exists onl
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Legislation
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FIPPA
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47(1)
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49(a)
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Section 19
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Section 23
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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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Dec 05, 1995
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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