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Document
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M-1165
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Institution/HIC
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Township of West Lincoln
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Summary
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NATURE OF THE APPEAL: A request was made to the Township of West Lincoln (the Township) under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to records relating to a particular municipal address and its use. The Township located records responsive to the request and denied access, in part, based on the following exemptions under the Act : • closed meeting - section 6(1)(b); • advice or recommendations - section 7(1); • law enforcement - section 8(1)(b); and • solicitor-client privilege - section 12. The Township also stated that records relating to inspections of the subject property did not exist. The requester appealed the denial of access. During the mediation of this appeal, the requester (now the appellant) advised that he was only appealing the denial of access to one record: a letter sent by Township staff to the Township solicitor requesting a legal opinion on the permitted occupancies at the subject property. As the Township has only claimed section 12 of the Act for this one record, this will be the only exemption at issue in this appeal. The appellant also believes that copies of reports/records relating to the inspection of the property by Township staff must exist, and therefore the question of whether additional records exist (reasonable search) is at issue in this appeal. During mediation, the Township provided the appellant with notes from the By-law Enforcement Officer pertaining to the subject property, however, the appellant still believes that more records should exist in relation to inspections of the property. This office provided a Notice of Inquiry to the Township and the appellant. Representations were received from both parties. In his representations, the appellant claims that the Township had waived solicitor-client privilege in the record at issue in that it had read out part of the legal opinion to him during a meeting. As this issue was not previously canvassed in the Notice of Inquiry a supplemental notice was sent to the Township asking for representations on this issue. The Township provided supplemental representations. The Township's supplemental representations were provided to the appellant, however, he did not provide a reply in response to them. I subsequently wrote to the parties and advised them that in order to address the issues in this appeal it was first necessary for me to determine whether the Township has waived solicitor-client privilege in the legal opinion which was prepared in response to the record at issue. I sent the parties a further supplementary Notice of Inquiry and asked them to address specific questions regarding the Township's treatment of the legal opinion. Representations were received from both the Township and the appellant. RECORD: The record at issue in this appeal consists of a letter dated September 25, 1997, from the Township's Director of Planning to the Township solicitor. 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 Orders 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 Township submits that the record is exempt under Branch 2 of the exemption in that it was prepared for use in giving legal advice to Township Council in contemplation of potential litigation. The Township also claims that the record was created or obtained specially for the lawyer's brief for existing or contemplated litigation and, is therefore, exempt under the second part of Branch 1. The Township does not provide any further clarification or evidence regarding the nature of the contemplated litigation. Accordingly, I am not satisfied that it is exempt under this part of the section 12 test. However, on its face, the letter is clearly addressed to legal counsel from the Township's Director of Planning, and is seeking legal advice on a legal issue. Accordingly, I find that the letter qualifies for exemption under Branch 2 of the section 12 exemption as it was prepared for counsel retained by the institution for use in giving legal advice. As I indicated above, the appellant claims that the Township has waived privilege in the document. In this regard, he states: [T]he Township used my October 8th/97 letter of complaint as a reference for the Township Solicitor to frame his legal opinion; advised me they were doing this and then read part of the legal opinion to me at a subsequent meeting. By sharing both their intent and the Solicitors opinion the matter no longer retains confidentiality. In responding to the supplemental Notice of Inquiry on this issue, the Township indicates that the appellant's letter was forwarded to its solicitor along with other background materials in order that he could have an accurate history prior to forming a legal opinion. In my view, the fact that the
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Legislation
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MFIPPA
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22(1)(a)
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Section 12
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Subject Index
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Published
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Dec 24, 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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