By Koren Thomson, John Samms, and Matthew Raske

The Newfoundland and Labrador Court of Appeal has held that the Information and Privacy Commissioner for this province (the “Commissioner”) does not have the authority to order public bodies to produce information covered by solicitor-client privilege under the Newfoundland and Labrador Access to Information and Protection of Privacy Act, 2015 (“ATIPPA”).^[1]

Public bodies need not disclose solicitor-client privileged information to the Privacy Commissioner in the course of the administration of access to information requests or appeals in relation to those requests. In an important decision for not only public bodies but also the rule of law as a whole, this decision affirms that public bodies may communicate freely and candidly with their legal counsel with the expectation that these communications will remain confidential.

Background

An applicant filed an access to information request seeking records related to an environmental complaint. The Minister of Justice and Public Safety (the “Minister”) replied to the applicant and disclosed all relevant documents except those it claimed were covered by solicitor-client privilege. The applicant complained to the Commissioner about the Minister’s refusal to disclose the records it claimed to be privileged. The Commissioner wrote to the Minister and, relying on section 97 of ATIPPA, asked to review the withheld records to confirm solicitor-client privilege applied to them. The Minister refused, stating its opinion that ATIPPA does not require public bodies to disclose solicitor-client privileged records to the Commissioner.

Following his investigation, the Commissioner recommended that the Minister disclose the withheld records to the applicant. In response, the Minister applied to the Supreme Court of Newfoundland and Labrador for a declaration stating it need not follow the Commissioner’s recommendation. The applications judge granted the declaration, finding ATIPPA did not authorize the Minister to compel disclosure of solicitor-client privileged records. The Commissioner appealed.

Issue

This appeal concerned section 97 of ATIPPA. It authorizes the Commissioner to compel a public body to produce “any record” in its control considered relevant to an investigation notwithstanding “a privilege under the law of evidence”. The question before the Court was whether the phrase “a privilege under the law of evidence” is sufficiently specific to override solicitor-client privilege.

To answer this question, the Court had to contend with two opposing forces:

1. A recent Supreme Court of Canada decision, which found the phrase “a privilege under the law of evidence” was insufficient to override solicitor-client privilege. The Minister argued this case determined the correct interpretation of section 97 of ATIPPA.
2. The history of amendments to ATIPPA, which the Commissioner argued demonstrated the legislature’s intention to empower the Commissioner to compel, for his review, records alleged to be protected by solicitor-client privilege.

Decision

The Court relied on jurisprudence from the Supreme Court of Canada to find that the ATIPPA language is not sufficiently clear, explicit and unequivocal to override solicitor-client privilege. The evidence of legislative history and intent was found to be relevant but not determinative.

The ATIPPA language is insufficiently clear, explicit and unequivocal to override solicitor-client privilege

The language of section 97 of ATIPPA is nearly identical to language in Alberta’s access to information legislation that was the subject of the Supreme Court of Canada’s decision in Calgary.^[2] In that case, the question was whether the phrase “any privilege of the law of evidence” was sufficient to capture solicitor-client privilege.

The Supreme Court in Calgary noted that solicitor-client privilege has evolved from a privilege under the law of evidence into a substantive protection and a principle of fundamental justice that must remain as close to absolute as possible. It can only be set aside by statutory language that is clear, explicit and unequivocal. The Supreme Court found the phrase at issue inadequately captured the broader substantive interests protected by solicitor-client privilege. As such, it failed to demonstrate sufficient legislative intent to set aside solicitor-client privilege.

The Court in this case adopted the reasoning in Calgary to find the language of section 97 of ATIPPA is not sufficiently clear, explicit and unequivocal to set aside solicitor-client privilege. In reaching this conclusion, the Court noted that ATIPPA was similar to the Alberta legislation interpreted in Calgary in two material respects:

• First, ATIPPA uses inconsistent phrases. Section 97 refers to “a privilege under the law of evidence”, while section 30(1)(a) refers explicitly to “solicitor and client privilege”. Different terms have different meanings. The Court reasoned that if the legislature intended to make solicitor-client privileged records compellable, it could have done so explicitly.
• Second, ATIPPA contains insufficient safeguards to prevent disclosure by the Commissioner of solicitor-client privileged documents. Presumably, the Court reasoned, if the legislature had intended to set aside solicitor-client privilege, then it would have included provisions to ensure privileged documents are not disclosed in a manner that compromises the substantive right.

Evidence of legislative history and intent was relevant but not determinative

The Court also considered the history of amendments to access to information legislation in Newfoundland and Labrador, which the Commissioner argued demonstrated legislative intent to override solicitor-client privilege. This evidence did not persuade the Court.

Prior to 2012, the legislation governing access to information in the province required a public body to produce to the Commissioner a record notwithstanding “a privilege under the law of evidence”. The Court of Appeal, in a 2011 decision, interpreted this phrase to include solicitor-client privilege.

In 2012, the House of Assembly substantially amended the provincial access to information legislation when it passed Bill 29. The amendments, which were the source of considerable political controversy at the time for reasons that extend beyond privilege issues, expressly revoked the Commissioner’s ability to review records alleged by public bodies to be protected by solicitor-client privilege.

In 2014, the Wells Committee conducted an independent and comprehensive review of access to information legislation in the province. In its final report, the Wells Committee recommended the Act be amended to restore “the right of the Commissioner to require production of any record for which solicitor-client privilege has been claimed and the Commissioner considers relevant to an investigation of a complaint”.^[3]

The Wells Committee also drafted a Bill for consideration by the House of Assembly. The draft language for section 97, like the rest of the Act, was included verbatim in the new ATIPPA passed in 2015. In recommending the language that it did, the Wells Committee expressly relied on the Court of Appeal’s conclusion that the phrase “a privilege of law under evidence” included solicitor-client privilege.^[4]

The Commissioner argued that the legislature, by enacting the new ATIPPA in the precise form recommended by the Wells Committee, demonstrated clear intent to restore the Commissioner’s authority to compel production of solicitor-client privileged records for his review.

The Court accepted that the evidence of legislative history lent credence to the Commissioner’s theory of intent. However, it noted that its task was to determine the meaning of the legislation, not what was said about it prior to its enactment. The Court of Appeal held that the Supreme Court of Canada’s decision in Calgary confirmed that the language endorsed by the Wells Report, and adopted in the ATIPPA, was insufficiently clear, explicit and unequivocal to override solicitor-client privilege.

Key takeaways

This decision underscores the importance of solicitor-client privilege. It is more than a privilege under the law of evidence. It is a principle of fundamental justice which offers a substantive protection of confidentiality in relation to communications between lawyers and their clients. These protections apply regardless of whether the client is a private individual or a public body. If the legislature wishes to set aside solicitor-client privilege, it must use language that leaves no doubt about that intention.

Solicitor-client privileged records may be excepted from disclosure under section 30(1) of ATIPPA. Generally, solicitor-client privilege attaches to communications between a client and a solicitor which entail the seeking or giving of legal advice, and which are intended to be confidential. While the Court of Appeal has confirmed that the Commissioner has no power to compel production of records over which solicitor-client privilege is claimed, public bodies ought to be prepared to explain to the Commissioner, without specific reference to the contents of the records, why the records satisfy the exception for solicitor-client privilege during the Commissioner’s investigations. Importantly, a public body’s privilege determinations are not immune from review: unsatisfied applicants can appeal exceptions to disclosure to the Supreme Court of Newfoundland and Labrador.

We encourage public bodies to seek legal advice when responding to access to information requests involving potentially privileged records. A lawyer can help ensure public bodies meet their disclosure obligations in a manner that both promotes transparency and preserves the substantive protections afforded by solicitor-client privilege.

This update is intended for general information only. If you have questions about the above, please contact a member of our Newfoundland and Labrador team.

[1] Newfoundland and Labrador (Information and Privacy Commissioner) v. Newfoundland and Labrador (Justice and Public Safety), 2023 NLCA 27.
[2] Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 [Calgary].
[3] Report of the 2014 Statutory Review: Access to Information and Protection of Privacy Act, Vol II at p 121.
[4] Ibid, at p 114.