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Document
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MO-1316
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Institution/HIC
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Township of King
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Summary
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NATURE OF THE APPEAL: The appellant made a request to the Township of King (the Township) under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to "all of the Township's files concerning the Ascot Estates at King property and the proposed estate residential development." In particular, the appellant requested: anything relating to Ascot's re-zoning application and to passage of the zoning by-law in regard to the Ascot Property, from August 1987 to the present; anything relating to Ascot's application for an official plan amendment, and application for draft subdivision approval, in regard to the Ascot Property, from June 1988 to the present; and anything pertaining or relating to the 1990-91 request to, and denial by, the Minister of Environment to review the proposed development of the Ascot Property under the Environmental Assessment Act. The appellant also requested all correspondence between Council members, including the Mayor, and the various Township departments, particularly the Planning Department, the Public Works Department, and the Building Department, concerning the matters listed above from August 1987 to the present. The Township located the records responsive to the request and granted access to a large number of them. The Township denied access to the remaining records pursuant to sections 6, 7, 12 and 14 of the Act . The Township also provided the appellant with a detailed index of the responsive records. The appellant appealed the Township's decision to deny access. During mediation, the Township and the appellant agreed to meet to review the general content of the withheld records, with a view to narrowing the records at issue in this appeal. As a result of this meeting, only 15 records remain at issue. The Township provided the appellant with a revised index containing only those records remaining at issue. Records 5 and 15 are duplicates and will, therefore be dealt with as a single record. Therefore, I will not refer to Record 15 again in this order, and my decision with respect to Record 5 will apply equally to Record 15. The appellant has agreed that the records identified in the amended index are the only records remaining at issue in this appeal. By narrowing the records at issue in the appeal, the application of sections 6 and 14 of the Act are no longer at issue. The Township claims that section 7(1) (advice or recommendations) applies to exempt those records numbered 5, 8, 10 and 14 as set out in the amended index. The Township indicates that it has applied section 12 (solicitor-client privilege) to all of the records remaining at issue. In reviewing the records, I noted that Records 5 and 8 pertain to two engineering firms (the affected parties). Record 5 is a letter which was sent to the Township's solicitors from one firm and Record 8 is a letter which was sent to the Township by the same firm with a record pertaining to another firm attached. Because these two firms may have an interest in the disclosure of these two records, I raised the possible application of the mandatory exemption in section 10(1) of the Act in the Notice of Inquiry which I sent to the parties. I sent a Notice of Inquiry, initially, to the Township and the affected parties. Representations were received from the Township. After reviewing its representations, I decided to move this inquiry to stage two and sought representations from the appellant. In doing so, I decided to seek representations from the appellant only with respect to the issue of the "communication privilege" aspect of solicitor-client privilege and the issue of waiver. The Notice of Inquiry which was originally sent to the Township and the affected parties was modified to reflect this. I sent this modified Notice to the appellant and enclosed a copy of the Township's non-confidential representations which address these two issues. I received the appellant's representations on these issues and decided to move this inquiry into stage three, in order to provide the Township with an opportunity to reply to them. The appellant consented to the full disclosure of his representations to the Township and they were enclosed with the Reply Notice of Inquiry which I sent to the Township. In addition, I modified the Reply Notice to reflect the issues which I requested the Township to address in reply. The Township submitted representations in response to the Reply Notice which specifically addressed the issues raised by the appellant in his representations. RECORDS: Only the 14 records included in the Township's three page amended index are at issue. The records at issue were located in three areas: the Clerks Department Official Plan Amendment (Folder #3), The Clerks Subdivision file (Folders #1, 2 and 3) and the Public Works Department File (Folder # 1). The records at issue consist of correspondence, notes and a memorandum. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE Section 12 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 counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation. This section consists of two branches, which provide an institution with discretion to refuse to disclose: a record that is subject to the common law solicitor-client privilege (Branch 1); and 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
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Legislation
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Subject Index
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Published
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Jun 27, 2000
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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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