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Summary
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NATURE OF THE APPEAL: The Ministry of the Solicitor General and Correctional Services (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to the following records: (i) All documents, including electronic documents, created by any and all individuals in attendance at the Inter-ministerial Committee for Aboriginal Emergencies meetings from September 3, 1995 to October 1, 1995. (ii) All minutes taken by any and all individuals in attendance at the meetings of the Core Working Group of the Ipperwash Incident Crisis Communications Procedures Group from September 3, 1995 to October 1, 1995. (iii) All documents, including electronic documents, created by any and all individuals in attendance at the meetings of the Core Working Group of the Ipperwash Incident Crisis Communications Procedures Group from September 3, 1995 to October 1, 1995. The Ministry located 116 pages of responsive records and granted access in full to 59 pages, partial access to 33 pages, and denied access in full to 24 pages. For those records to which access was denied, either in whole or part, the Ministry claimed the application of one or more of the following exemptions contained in the Act : Cabinet records - section 12 advice or recommendations - section 13 relations with other governments - section 15 third party information - section 17 valuable government information/economic and other interests - section 18 solicitor-client privilege - section 19 invasion of privacy - section 21 The requester (now the appellant) appealed the Ministry's decision. During mediation, the appellant agreed that he would not pursue access to pages 67 and 68. He also claimed that there is a compelling public interest in the disclosure of the remaining records pursuant to section 23 of the Act . There are a total of 55 pages of records which will be addressed in this interim order. Twenty-four have been exempted in whole and 31 in part. They consist of handwritten notes, issue notes, memoranda and drafts, a support group meeting chart, a transcript of a conference call, facsimiles and various related documents and drafts. This office sent a Notice of Inquiry to the Ministry and the appellant. In addition, the Notice was sent to an organization (the affected party) and two individuals (the affected persons) whose interests may be affected by the outcome of this appeal. Representations were received from the Ministry and one affected person but not from the appellant, the affected party or the other affected person. PRELIMINARY MATTER: Responsiveness of the records In its representations, the Ministry claims that pages 58-62 fall outside the scope of the request because they contain information about land claim negotiations and other Aboriginal issues concerning locations in the province other than Ipperwash. The Ministry argues that this information does not relate to either the Emergency Planning for Aboriginal Issues Interministerial Committee or Ipperwash Provincial Park. The Ministry, therefore, submits that these records are not reasonably related to the request. The issue of responsiveness of records was canvassed in detail by former Adjudicator Anita Fineberg in Order P-880. That order dealt with a redetermination regarding this issue which resulted from the decision of the Divisional Court in Ontario (Attorney-General) v. Fineberg (1994), 19 O.R. (3rd) 197. In the Fineberg case, the Divisional Court characterized the issue of the responsiveness of a record to a request as one of relevance. In her discussion of this issue in Order P-880, Adjudicator Fineberg stated as follows: In my view, the need for an institution to determine which documents are relevant to a request is a fundamental first step in responding to the request. It is an integral part of any decision by a head. The request itself sets out the boundaries of relevancy and circumscribes the records which will ultimately be identified as being responsive to the request. I am of the view that, in the context of freedom of information legislation, "relevancy" must mean "responsiveness". That is, by asking whether information is "relevant" to a request, one is really asking whether it is "responsive" to a request. While it is admittedly difficult to provide a precise definition of "relevancy" or "responsiveness", I believe that the term describes anything that is reasonably related to the request. I agree with these conclusions and adopt them for the purposes of this appeal. While the information in pages 58-62 may not be directly related to Ipperwash Provincial Park, having reviewed these records, it is clear to me that they were created as a result of discussions involving the Ipperwash incident. As such, I find that they are reasonably related to the request and, therefore, responsive. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE The Ministry claims that pages 2-3, 6, 7, 9, 11-14, 16, 30, 39-41, 53-54 and 58-62 qualify for exemption under section 19 of the Act , which reads as follows: 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 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 giving legal 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-client privilege (Branch 1), the Ministry must provide evidence that the record satisfies 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 communicati
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