Jonathan Coady

After more than five years, the Prince Edward Island Information and Privacy Commissioner (the “Privacy Commissioner”) has completed her review into more than sixty records withheld by a local school board on the ground of solicitor-client privilege.¹ The school board had refused to disclose the records in response to a request under the Freedom of Information and Protection of Privacy Act.² In a long-awaited decision, the Privacy Commissioner recognized solicitor-client privilege as an essential part of our legal system – even in the context of access to information legislation – and concluded that the school board acted properly when it refused to disclose the records. For public bodies and their lawyers, the decision represents an important safeguard for the full, frank, and free exchange of information that is at the core of the solicitor-client relationship.

Background

Section 25(1)(a) of the Freedom of Information and Protection of Privacy Actprovides that, in response to a request for access to information, a public body “may refuse to disclose … information that is subject to any type of legal privilege, including solicitor-client privilege.”³ The exception to disclosure is a discretionary one. And any decision refusing disclosure is liable to review by the Privacy Commissioner.⁴

In this case, the local school board, after receiving a request for all records related to the person making the request, located sixty-one records that it claimed were subject to solicitor-client privilege. The school board relied upon section 25(1)(a) of the Freedom of Information and Protection of Privacy Act and exercised its discretion to refuse disclosure. The person making the request sought review of that decision. The Privacy Commissioner then issued an order demanding production of the records in question. The school board objected to production and questioned whether the Privacy Commissioner had the legal authority to compel records protected by solicitor-client privilege.⁵ In the interest of resolving the matter, the school board eventually produced the records for inspection by the Privacy Commissioner. However, the school board maintained its objection to production and continued to assert that the records were privileged.

In the years that followed, the parties made detailed submissions to the Privacy Commissioner.⁶ The school board also made representations in private as authorized by the Freedom of Information and Protection of Privacy Act.⁷ In the end, the Privacy Commissioner agreed with the decision made by the school board. The records were found to be privileged and not disclosed.

Message for Public Bodies

As the Privacy Commissioner acknowledged in her decision, this review process – although lengthy – was her first opportunity to clarify the boundaries of solicitor-client privilege under the Freedom of Information and Protection of Privacy Act.⁸ For public bodies and their lawyers, the decision provides a valuable summary of the applicable principles:

• solicitor-client privilege is an essential part of our legal system even in the context of legislation aimed at public access to information;⁹
• a public body is not required to sever portions of a record subject to solicitor-client privilege for partial disclosure;¹⁰
• solicitor-client privilege belongs to the public body and not an individual member of the public body;¹¹
• in order for solicitor-client privilege to be applicable, it is not necessary for the communication to specifically request or offer legal advice;¹²
• solicitor-client privilege includes factual information, background documents, and other material that a public body provides to its lawyer as part of the continuum of communication related to seeking, formulating, or giving legal advice;¹³
• solicitor-client privilege includes documents generated by a public body that reference or discuss the legal advice received from its lawyer;¹⁴
• there is a rebuttable presumption that invoices from a lawyer are subject to solicitor-client privilege;¹⁵ and
• a waiver of solicitor-client privilege by a public body requires a clear intention to voluntarily relinquish the privilege.¹⁶

In summary, while the claim of solicitor-client privilege was ultimately upheld by the Privacy Commissioner, her decision is mandatory reading for public bodies – and their lawyers – in Prince Edward Island.

Questions

If you have any questions about this update, please do not hesitate to contact our team at Stewart McKelvey in Charlottetown, Prince Edward Island. The local school board in this case was represented by Rosemary Scott, QC and Jonathan Coady.

¹ Order No. FI-17-004 (8 March 2017).
² R.S.P.E.I. 1988, c. F-15.01.
³ Ibid., s. 25(1)(a).
⁴ Ibid., s. 60(1).
⁵ The Supreme Court of Canada has recently confirmed that the Alberta Privacy Commissioner has no such authority. The legislation in Alberta and Prince Edward Island is identical in this regard. See Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53.
⁶ The Privacy Commissioner was directed, in particular, to recent decisions from the Supreme Court of Canada safeguarding solicitor-client privilege. See e.g. Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, and Canada (National Revenue) v. Thompson, 2016 SCC 21.
⁷ Supra note 2, s. 64(3).
⁸ Supra note 1 at para. 61.
⁹ Ibid. at para. 13.
¹⁰ Ibid. at para. 14.
¹¹ Ibid. at paras. 26-29.
¹² Ibid. at para. 34.
¹³ Ibid.
¹⁴Ibid.
¹⁵ Ibid. at paras. 40-41.
¹⁶ Ibid. at para. 47.