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Document
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M-739
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Institution/HIC
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City of Mississauga
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Summary
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NATURE OF THE APPEAL: The City of Mississauga (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to documentation concerning a by-law passed by the City to deal with lap dancing. The City identified 16 responsive records and provided the requester with full access to eight of them. The City denied access to the remaining eight records in their entirety pursuant to section 12 of the Act (solicitor-client privilege). The requester (now the appellant) appealed the City's decision. Mediation was not successful, and a Notice of Inquiry was sent to the City and the appellant. Representations were received from both parties. In its representations the City withdrew the exemption claim for Record 15, and subsequently released this record to the appellant. The records which remain at issue in this appeal are Records 9, 10, 11, 12, 13, 14 and 16, which were described to the appellant in an index attached to the City's decision letter. The appellant agreed that he was not interested in receiving any personal information contained in any records, and any such information is therefore excluded from the scope of this appeal. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE Section 12 of the Act 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 counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation. Section 12 consists of two branches, which provide an institution 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). For a record to be subject to the common law solicitor-client privilege (Branch 1), the City must provide evidence that (1) the record either constitutes a written or oral communication of a confidential nature between a client and legal advisor which relates directly to seeking, formulating or giving legal advice; or (2) the document was created or obtained especially for a lawyer's brief for existing or contemplated litigation. For a record to qualify for exemption under Branch 2, the City must establish that the document was prepared by or for counsel employed or retained by an institution and the document must have been prepared (1) for use in giving legal advice, or (2) in contemplation of litigation, or (3) for use in litigation. The appellant submits that the records are not subject to solicitor-client privilege because they were not produced for or in contemplation of litigation. In his view, the records were prepared to determine whether the City should pass a by-law to deal with lap dancing, and what effect such a by-law would have on adult entertainment club owners. The appellant's representations are restricted to the application of the common law solicitor-client privilege and do not address Branch 2. The City claims that Records 9, 10, 13 and 14 meet the requirements for exemption under Branch 2. Having reviewed these records, I find that they were all prepared either by or for counsel or an articling student employed by the City for use by various lawyers in giving legal advice to the Mayor and a City Councillor on the proposed lap dancing by-law under consideration at that time. Therefore, I find that these four records satisfy the requirements of Branch 2 of the section 12 exemption. Turning to Branch 1, the City claims that Records 11, 12 and 16 qualify under the first part of the commom law solicitor-client privilege. All three of these records appear to be the type which would qualify under this part of Branch 1: they are written or oral communications, with indications of confidentiality, between the City Solicitor and her client (the Mayor), which relate directly to the giving of legal advice on the proposed lap dancing by-law. However, all of these records are "cc'd" to other individuals. I must therefore assess whether or not the distribution of these records to persons other than the client negates or waives the privilege. The City's representations address the issue of waiver. As far as Record 11 is concerned, the representations state: While the document is copied to a person other than the person to whom the document is directed, such an action does not constitute a waiver of the privilege that attaches to the document in so far as the person to whom the document is copied is a member of municipal staff and, as a consequence, there is no disclosure of the document outside the confines of the municipal corporation such as might constitute a waiver of the privilege which attaches to it. Similar representations were made regarding Record 12, which was not actually sent to the Mayor but was discussed with another City employee, as evidenced by this person's handwritten notes on the face of the record. Record 16 was copied to two individuals, one of whom is also a City employee. The City's position with respect to the effect of disclosure to this employee is essentially the same as for Record 11. The second person copied on Record 16 is a Peel Regional Police Officer. In speaking to the impact of disclosure to this person, the City states: The City submits that the privilege that attaches to a document may be waived either in whole or in part. In the case of the present document, the presence of the restrictive language that labels the document makes it clear that the document, while disclosed to more than one person was clearly not done so as a complete waiver of that privilege but was, rather, disclosed only to a limited number of individuals to whom it was in the City's interest to disclose the document. I am prepared to accept that disclosure of Records 11 and 12 to other City employees does not constitute waiver, and that these two records qualify for exemption under the first part of Branch 1 of section 12. Similarly, I find that the fact that Record 16 was copied to the City's Director of Enforcement does not constitute waiver. The issue as far as Record 16 is concerned is whether disclosure of the record to someone outside the City is sufficient to negate what would otherwise constitute solicitor-client privilege. Manes & Silver, make the following po
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Legislation
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Subject Index
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Published
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Mar 21, 1996
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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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