Information and Privacy Commissioners across Canada call on governments to safeguard independent review of solicitor-client privilege claims
IQALUIT, NU, Oct. 19, 2017 /CNW/ - In a joint resolution, Canada's Information and Privacy Commissioners (IPCs) have called on governments to ensure that access to information and privacy legislation in every jurisdiction empowers IPCs to compel the production of records over which solicitor-client privilege has been claimed by public bodies to verify whether these claims are properly asserted when responding to requests for access to information.
In Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, the Supreme Court determined that legislative language did not expressly permit the Alberta Commissioner to compel the production of records over which solicitor-client privilege had been claimed. Canada's IPCs are concerned with this decision as they require the power to compel these records in order to properly fulfil their mandate of providing first-level, independent review of public bodies' responses to requests for access to information.
Canada's IPCs are calling on their respective governments to amend access to information and privacy legislation to ensure they are empowered to compel the production of records in order to independently review records over which public bodies claim solicitor-client privilege.
The joint resolution is available on the IPCs' respective websites.
SAFEGUARDING INDEPENDENT REVIEW OF SOLICITOR-CLIENT PRIVILEGE CLAIMS
Resolution of the Federal, Provincial and Territorial Information and Privacy Commissioners
Iqaluit, Nunavut, October 17-18, 2017
CONTEXT
Canada's federal, provincial and territorial Information and Privacy Commissioners (IPCs) perform a vital oversight function by ensuring that public bodies comply with their obligations under access to information and privacy legislation. IPCs perform an important first level of independent review about the manner in which public bodies process requests for access to information.
The independent review function performed by each of Canada's IPCs fundamentally depends on their ability to examine responsive records over which public bodies claim exemptions, including the exemption for solicitor-client privilege[1], in order to determine that such claims have been properly asserted.
In Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (University of Calgary), the Supreme Court of Canada recently determined that the legislative language used in Alberta's Freedom of Information and Protection of Privacy Act (FOIP) did not express a sufficiently clear and unambiguous intention to empower the Alberta Commissioner to compel records for review when solicitor-client privilege is claimed over those records. The Supreme Court reached this conclusion despite language in FOIP authorizing the Alberta Commissioner to compel the production of records notwithstanding "any privilege of the law of evidence."
IPCs are concerned there is considerable variation in the legislative language used to confer powers, including the power to compel the production of records, upon IPCs at the federal, provincial and territorial levels. Given this variability, Canada's IPCs are concerned about the potential ramifications of the Supreme Court's ruling in University of Calgary for the proper functioning of access to information and privacy legislation across the country.
WHEREAS
- Access to information and privacy are quasi-constitutional rights that are fundamental to individual self-determination, democracy, accountability and good government;
- The decisions made by public bodies with respect to the disclosure of information must be independently reviewed in order to ensure that the fundamental objectives of access and privacy legislation at all levels are fulfilled;
- Canada's IPCs perform an important first level of independent review by reviewing the manner in which public bodies process requests for access to information, including personal information. Canada's IPCs have been tasked by Legislatures and Parliament with overseeing public bodies in this regard;
- Canada's IPCs recognize the importance of the protections afforded by solicitor-client privilege for the proper functioning of Canada's legal system;
- The IPCs have practices and procedures in place to ensure confidentiality and security of information provided to them, including information over which public bodies have claimed solicitor-client privilege;
- Providing IPCs with records over which solicitor-client privilege is claimed for the purposes of independent review does not constitute waiver of this privilege. The IPCs' review of these records is only to confirm whether they are subject to solicitor-client privilege. IPCs do not disclose the records or use them for any other purpose; and
- The Supreme Court has determined that legislative language purporting to set aside solicitor- client privilege must be clear, explicit and unequivocal.
THEREFORE
Where there is any doubt about the adequacy of existing legislative language, Canada's IPCs call upon the governments in such jurisdictions to amend their access to information and privacy legislation to express the unambiguous intention that the associated Commissioner is authorized to compel the production of records over which solicitor-client privilege is claimed in order to determine whether this exemption has been properly asserted.
List of signatories
Suzanne Legault,
Information Commissioner of Canada
Daniel Therrien,
Privacy Commissioner of Canada
Jill Clayton,
Information and Privacy Commissioner of Alberta
Drew McArthur,
Acting Information and Privacy Commissioner for British Columbia
Charlene Paquin,
Ombudsman for Manitoba
Donovan Molloy, Q.C.,
Information and Privacy Commissioner for Newfoundland and Labrador
Elaine Keenan Bengts,
Information and Privacy Commissioner for the Northwest Territories and Information and Privacy Commissioner for Nunavut
Catherine Tully,
Information and Privacy Commissioner of Nova Scotia
Brian Beamish,
Information and Privacy Commissioner of Ontario
Karen A. Rose,
Information and Privacy Commissioner of Prince Edward Island
Me Jean Chartier,
President, Commission d'accès à l'information du Québec
Ronald J. Kruzeniski, Q.C.,
Information and Privacy Commissioner of Saskatchewan
Diane McLeod-McKay,
Information and Privacy Commissioner of Yukon
[1] In this resolution, the term "solicitor-client privilege" includes litigation privilege
SOURCE Office of the Information Commissioner of Canada
For further information: Natalie Bartlett, Manager, Communications and Media Relations Office of the Information Commissioner of Canada, 819-994-1068, [email protected]; Office of the Privacy Commissioner of Canada, [email protected]; Andrea Corlett, Director, Communications, Office of the Information and Privacy Commissioner of Ontario, 416-326-3902; Kim Kreutzer-Work, Director, Knowledge Management, Office of the Information and Privacy Commissioner of Alberta, 780-422-6860
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