Library and Archives Canada (Re), 2022 OIC 51
Date: 2022-12-15
OIC file number: 5821-00890
Institution file number: A-2019-16007
Summary
The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under section 23 (Solicitor-client) of the Access to Information Act in response to an access request for information relating to regulations pursuant to the Food and Drugs Act and related litigation. While the information met the requirements of section 23, LAC did not provide any information indicating that it had considered its obligation to exercise its discretion to decide whether to disclose the information. Consequently, LAC did not show that it had reasonably exercised its discretion. The Information Commissioner ordered that LAC re-exercise its discretion to decide whether to disclose the withheld information, taking into account all relevant factors. LAC gave notice to the Commissioner that it would implement the order and would re-exercise discretion to decide whether to disclose the information at issue, taking into account all relevant factors for and against disclosure. LAC subsequently provided the Commissioner with an explanation of its decision on discretion.
The complaint is well founded.
Complaint
[1] The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under section 23 (Solicitor-client) of the Access to Information Act in response to an access request for information relating to regulations pursuant to the Food and Drugs Act and related litigation.
Investigation
[2] During the investigation, the complainant informed the Office of the Information Commissioner (OIC) that their complaint was limited to LAC’s refusal to disclose portions of the following records based on section 23:
- A memorandum for the Deputy Minister of Justice, W. Stuart Edwards, from Department of Justice (Justice) counsel, Edward Miall, dated January 9, 1933 (pp. 1988-1990 of the release package).
- A letter to W. Stuart Edwards from R. L. Maitland, outside counsel contracted in relation to the Standard Sausage litigation, dated January 30, 1933 (pp. 2037-2040; redactions applied at pages 2039 and 2040).
- A memorandum for the Deputy Minister of Justice, W. Stuart Edwards, from the Assistant Deputy Minister of Justice, F. P. Varcoe, dated December 3, 1932 (pp. 2090-2092).
[3] When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.
Section 23: solicitor-client privilege
[4] Section 23 allows institutions to refuse to disclose information subject to solicitor-client privilege or the professional secrecy of advocates and notaries when the information relates to legal advice given to a client. Section 23 also allows institutions to refuse to disclose information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.
[5] To claim this exemption with regard to solicitor-client privilege, institutions must show the following:
- The information consists of communication between a lawyer or notary and his or her client.
- That communication relates directly to the seeking or giving of legal advice, including all the exchanges of information needed to give legal advice.
- The parties intend the communication and advice to remain confidential.
[6] When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to release the information.
Does the information meet the requirements of the exemption?
[7] In the present instance, LAC has claimed that the information at issue is subject to solicitor-client privilege.
[8] The complainant, for their part, states, among other things, that the information does not satisfy the requirements of solicitor-client privilege because: LAC did not establish that the communications between counsel were in fact conveyed to the client; and, at least in the case of the January 30th, 1933 letter, facts are merely being communicated, as opposed to the communication of legal advice.
[9] In the alternative, the complainant alleges that there has been an implied waiver of solicitor-client privilege because the same or closely related information has been disclosed elsewhere within the responsive records and / or in open court; and / or that, in the interests of fairness, LAC’s selective waiver (or “cherry picking”) of portions of the privileged records require that all portions of the records be disclosed.
[10] Upon reviewing the information at issue and submissions made, I do not agree with the complainant’s submissions.
[11] The information relates directly to the seeking or giving of legal advice and was provided as part of “the continuum of communications” between solicitor and client for the purpose of providing legal advice. (see, for example: Samson Indian Band v. Canada, 1995 CanLII 3602 (FCA) and Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23). The information, on its face, was communicated with an intention that it would be kept confidential (see, for example: Blank v. Canada (Minister of the Environment), 2001 FCA 29).
[12] Solicitor-client privilege is not limited to actual exchanges between solicitor and client, but extends to exchanges made for the purpose of obtaining / providing legal advice (Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860). This includes communications between counsel for the purpose of formulating or providing advice, whether or not the same is precisely communicated directly to the client (see, for example: Foster Wheeler Power Co. v. Société intermunicipale de gestion et d'élimination des déchets (SIGED) inc., [2004] 1 S.C.R. 456; Canada (Information Commissioner) v. Canada (Prime Minister), 2019 FCA 95).
[13] While the records at issue include communications of fact, I am satisfied that the redacted information is not limited to the communication of factual information, but instead consists of the communication of legal views / advice.
[14] The complainant raised allegations of waiver and partial waiver as a result of the disclosure of parts of the records at issue. In terms of waiver, although significant portions of the three records have been disclosed, there is no evidence of a waiver of privilege over the substantive contents of the information that continues to be redacted. The subject matter of the redacted information is distinct from the two other subject matters disclosed elsewhere in the records.
[15] In light of this fact, I also see no basis for concluding that there has been a selective waiver of privilege over information that is favourable to the Crown and do not see any basis for concluding that, in this context, any partial waiver of privilege warrants a loss of privilege over the whole.
[16] Consequently, I am satisfied that LAC has showed that the information meets the requirements of section 23.
Did LAC reasonably exercise its discretion to decide whether to release the information?
[17] Since the information meets the requirements of section 23, LAC was required to reasonably exercise its discretion when deciding whether or not the information at issue would be disclosed. In doing so, LAC was required to consider all relevant factors for and against disclosure.
[18] With regard to its exercise of discretion, LAC indicated during the investigation that it would undertake consultations with Justice, pursuant to LAC’s Principled Framework on Providing Access to Archival Government Records Containing Solicitor-client Privileged Information, in order to inform that exercise. LAC subsequently indicated that it had completed those consultations, yet it did not provide representations as to how the discretion to grant or refuse access to the information at issue was exercised reasonably based on a consideration of all relevant factors.
[19] In turn, I cannot accept that LAC reasonably exercised its discretion under section 23.
[20] In Ontario (Public Safety and Security) v. Criminal Lawyers’ Association,2010 SCC 23, the Supreme Court of Canada explained that “a discretion conferred by statute must be exercised consistently with the purposes underlying its grant” and that “to properly exercise this discretion, the head must weigh the considerations for and against disclosure, including the public interest in disclosure.” (at para. 46) Although the Court in that case went on to conclude that because of the near absolute nature of legal advice privilege, presumptively the protection of the privilege will outweigh other factors favouring disclosure, the Court recognized that there may be exceptional circumstances where that privilege must yield. (at para. 75)
[21] In the present instance, based on the information gathered during the investigation and in the absence of any representations from LAC on this issue, it is my view that exceptional circumstances may well exist in the present instance.
[22] The records at issue are almost 90 years old. At no point during the investigation was there any suggestion that the information’s disclosure could reasonably be expected to have any continued impact on current or future litigation; nor is it apparent in reviewing the information at issue that this would be the case.
[23] The records were transferred to LAC under the Library and Archives Actbecause of their historical significance. That statute instructs Canada’s Librarian and Archivist to “acquire and preserve” the documentary heritage of Canadians, “make that heritage known”, in addition to “facilitating access” (see: Library and Archives of Canada Act, S.C. 2004, c. 11 at s. 7).
[24] InBronskill v. Canada (Minister of Canadian Heritage), 2011 FC 983, the Federal Court opined that the Library and Archives of Canada Act should be considered in every review of an access request, regardless of the department or decision maker involved. It follows that LAC’s delegated decision-maker under the Act ought to certainly have considered LAC’s mandate and objectives under its governing statute when exercising discretion to disclose records of historical significance transferred to LAC’s control.
[25] LAC, however, did not establish that such factors, or other relevant factors, were considered by its delegated decision-maker when refusing disclosure. Those additional factors would certainly include: the purpose of the Act; the purpose underlying the exemption for solicitor-client privilege and whether the interest underlying this privilege would in fact be harmed by the disclosure of the record at issue in the present instance; the public interest in the records’ release; the likelihood of any prospect of injury, or lack thereof, from disclosure; and the extent to which similar information has previously been disclosed.
[26] I conclude that LAC did not consider all relevant factors when it decided not to disclose the information. Consequently, the exercise of discretion by LAC was not reasonable.
Result
[27] The complaint is well founded.
Order
Under subsection 36.1(1) of the Act, I order the Minister of Canadian Heritage to re-exercise his discretion to decide whether to disclose the information to which it applied section 23, taking into account all relevant factors for and against disclosure including those identified in this report.
The Minister must abide by the terms of subsection 37(4) when disclosing any records in response to my order.
On November 10, 2022, I issued my initial report to the Minister of Canadian Heritage setting out my order.
On December 12, 2022, the Minister of Canadian Heritage gave me notice that he would be implementing my order. Specifically, he indicated that he will re-exercise discretion to decide whether to disclose the information to which LAC applied section 23, taking into account all relevant factors for and against disclosure. The Minister also intends to provide me with a transparent and intelligible explanation for his decision on discretion by January 20, 2023.
When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They must apply for this review within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43.