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Document
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M-505
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Institution/HIC
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Sudbury Regional Police Services Board
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The Sudbury Regional Police Services Board (the Police) received two requests for access to records containing the requester's personal information. The Police identified 572 responsive records and disclosed many in full, some in part and withheld others in their entirety relying on the following exemptions contained in the Act : solicitor-client privilege - section 12 discretion to refuse requester's own personal information - section 38(a). The requester appealed the decision to deny access. During the mediation stage of the appeal, the appellant indicated that he no longer sought access to the personal information of others and, accordingly, that information is no longer at issue. A Notice of Inquiry was sent to the appellant and the Police. Representations were received from both parties. The 19 records which remain at issue in this appeal are listed in Appendix "A" to this order. As two requests were received by the Police, two searches were undertaken for records which resulted in the preparation of two indices entitled 94-010 and 94-011. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE/DISCRETION TO REFUSE REQUESTER'S OWN PERSONAL INFORMATION All of the records at issue in this appeal contain the personal information of the appellant. Under section 38(a) of the Act , the Police have the discretion to deny access to records which contain an individual's own personal information in instances where certain exemptions would otherwise apply to that information. The exemptions listed in section 38(a) include the solicitor-client exemption provided by section 12. The Police claim that the records are exempt under section 38(a) because they qualify for exemption under section 12. In the discussion which follows, I will consider whether the records at issue in this appeal qualify for exemption under section 12 as a preliminary step in determining whether the exemption in section 38(a) applies. Section 12 of the Act 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). The Police submit that Records 3-4 and 14 are exempt under Branch 1 of section 12. As the Police claim the application of section 12 to all of the records, I will also apply the test set forth in Branch 1 to Records 21 and 81. In order for a record to be subject to the common law solicitor-client privilege (Branch 1), the Police 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. The Police claim that Records 3-4 and 14 are exempt under the second part of the common law solicitor-client privilege. I have reviewed the records and considered the above-noted test. Record 14 is a letter from the Ontario Human Rights Commission (OHRC) seeking the submissions of the Police as to whether a Board of Inquiry under section 36 of the Human Rights Code should be appointed in a complaint which had been instituted by the appellant. Record 3-4 similarly invites the Police to provide submissions on the appellant's request for a reconsideration of OHRC's decision not to appoint a Board of Inquiry into the appellant's complaint. While litigation in the form of a proceeding before the OHRC was under way at the time the letters were received, I find that they cannot be characterized as records created especially for the lawyer's brief for existing litigation within the meaning of the Act . Records 3-4 and 14 are not concerned with the preparation of the case for the Police by the lawyer who was retained. They simply acted as notification to counsel for the Police that a complaint, and then a reconsideration request, had been made by the appellant. Records of this description do not fall within the solicitor-client privilege. As no other exemptions have been claimed for Records 3-4 and 14, and no mandatory exemptions apply, they should be disclosed to the appellant. Records 21 and 81 are letters to the Chair of the Sudbury Regional Board of Commissioners of Police from its counsel. These records clearly fall within the ambit of Branch 1 of the section 12 exemption, being confidential correspondence between a solicitor and client which directly relate to the seeking and giving of legal advice. I find, therefore, that Records 21 and 81 fall within the ambit of Branch 1 of the section 12 exemption. The Police claim the remainder of the records are exempt under Branch 2 of the section 12 exemption. A record can be exempt under Branch 2 of section 12 regardless of whether the common law criteria relating to Branch 1 are satisfied. 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 the Police; and 2. the record must have been prepared for use in giving legal advice, or in contemplation of litigation, or for use in litigation. These records consist of letters to and from counsel for the Police and the OHRC, the Sudbury Regional Police Association, the Workers' Compensation Board (WCB) and the Chair of the Sudbury Regional Board of Commissioners of Police. Record 1-2 is the submission, prepared by counsel retained by the Police, in response to the appellant's request for reconsideration of the OHRC decision not to appoint a Board of Inquiry. The letter soliciting these submissions from the Commission, Record 3-4, indicates that the submission would be shared with the appellant and that he would have the opportunity to comment on them. I find that the submissions we
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Legislation
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Subject Index
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Published
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Mar 29, 1995
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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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