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Document
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MO-1172
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Institution/HIC
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City of Vaughan
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Summary
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NATURE OF THE APPEAL: The appellant made a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) to the City of Vaughan (the City) for a copy of a confidential memorandum from the Deputy City Manager and City Solicitor which was received by the City Council at an open session. The City located the record and denied access to it in full on the basis of section 12 (solicitor-client privilege) of the Act . The appellant appealed this decision and claimed that the City had waived privilege in the document. This office sent a Notice of Inquiry to the appellant and the City. The parties were specifically asked to address the issue of waiver. Representations were received from both parties. RECORD: The record at issue is a two-page memorandum to the Mayor and Members of Council from the Deputy City Manager and City Solicitor dated February 27, 1998. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE Section 12 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 counsel employed or retained by an institution 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 institution 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. [Order 49. See also Order M-2 and Order M-19] Two criteria must be satisfied in order for a record to qualify for exemption under Branch 2: 1. the record must have been prepared by or for counsel employed or retained by an institution; and 2. the record must have been prepared for use in giving legal advice, or in contemplation of litigation, or for use in litigation. [See Order 210] The City indicates that it is relying on Branch 1 of the exemption to withhold the record from disclosure. In this regard, the City submits that the record is a written communication from the City Solicitor to members of Council, that it was prepared and submitted to Council in confidence as evidenced by the notation on the first page of the memorandum, and that it is directly related to the giving of legal advice to Council concerning the Pine Valley Drive link. The appellant submits that the "taxpayers" are the true clients within the meaning of section 12 of the Act since the taxpayers ultimately pay the salary of the Council and the City's solicitor. If I were to accept this argument, there would effectively be no need for the exemption in section 12. Moreover, section 1 of the Act provides that the public has a right to information held by government institutions, but also stipulates that this right to information is not absolute. Through section 12, the Act recognizes the confidential relationship between public officials and their counsel to the same extent that the common law recognizes the private solicitor and client relationship (Orders P-1551 and P-1561). Further, section 12 acknowledges that public officials may be "clients", distinct from the public at large, notwithstanding the special duties and responsibilities these officials have with respect to the public. Accordingly, I find that the appellant's arguments in this regard are without merit. I have reviewed the record at issue and find that it is a direct written communication between the City Council and the City's solicitor. I also find that it contains advice from the solicitor regarding the issues and options to be considered by Council respecting the Pine Valley Drive link. I am satisfied that this document was prepared and intended to be communicated in confidence. This view is reinforced by the manner in which the document was referred to in the minutes of the Council meeting of March 9, 1998. Accordingly, I find that the record qualifies for exemption under the solicitor-client communication privilege in Branch 1 of section 12 of the Act . As I indicated above, the appellant claims that the City has waived privilege in the document. The appellant raises several points in asserting this claim. I will address each one separately. The appellant's first argument is based on the provisions of the Planning Act , R.S. O. 1990, C.P.13. He specifically refers to sections 16, 17 and 20 of the Planning Act as providing legal authority for the disclosure of the record. These sections refer to the public hearing process as it relates to the amendment of the official plan. In essence, these sections provide that any person or public body may make written submissions to the Council before a plan is adopted. These provisions of the Planning Act provide that the public shall be given sufficient information to enable them to participate in the public hearing process and indicate further that all submissions in this forum shall be made available to the public. In my view, these sections refer to the process whereby the public is included in the decision-making process regarding planning issues. There is nothing in the Planning Act which indicates that all information in the custody of the City respecting any amendments to the official plan must be made available to the public. I find that simply because the Planning Act envisions and provides for access to some information regarding amendments to the official plan and for public input into these issues, it does not follow that all information available to the
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Legislation
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Subject Index
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Published
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Dec 08, 1998
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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