Department of Justice Canada (Re), 2022 OIC 54

Date: 2022-12-21
OIC file number: 3217-00082
Institution file number: A-2013-01931/CJM

Summary

The complainant alleged that the Department of Justice Canada (Justice) had improperly withheld information under subsection 16(2) (facilitating the commission of an offence) and 19(1) (personal information), paragraphs 21(1)(a) (advice and recommendations), 21(1)(b) (accounts of consultations or deliberations), section 23 (solicitor client and litigation privilege), and excluded information under subsection 69(1) (cabinet confidences) of the Access to Information Act in response to a request for records related to the Alternate Independent Process (AIP) for St-Anne’s Residential School hearings for a specific time period. The complaint falls within paragraph 30(1)(a) of the Act. Justice could not show that it met all the requirements of section 23, whether solicitor-client or litigation privilege, in regards to several records consisting of communications that took place beyond the scope of solicitor-client relationship. More particularly, Justice did not establish the existence of common interest privilege with regard to different parties to litigation despite its claims of a sui generis relationship between parties established under the Indian Residential Schools Settlement Agreement (IRSSA).The Information Commissioner recommended that the Minister of Justice disclose all of the information withheld pursuant to section 23 which does not meet the requirements of the exemption, including but not limited to, exchanges between Justice and other parties to the litigation. Justice gave notice to the Commissioner that it maintains the application of section 23, but that it undertakes to review the records at issue to determine what information could be disclosed in the context of the overall application of the Act. The complaint is well founded.

Complaint

[1]      The complainant alleged that the Department of Justice Canada (Justice) had improperly withheld information under subsection 16(2) (facilitating the commission of an offence) and 19(1) (personal information), paragraphs 21(1)(a) (advice and recommendations), 21(1)(b) (accounts of consultations or deliberations), section 23 (solicitor client and litigation privilege), and excluded information under subsection 69(1) (cabinet confidences) of the Access to Information Act in response to a request for records related to the Alternate Independent Process (AIP) for St-Anne’s Residential School hearings for a specific time period. The complaint falls within paragraph 30(1)(a) of the Act.

[2]      Over the course of the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate the application of subsection 19(1) of the Act.

Investigation

[3]      When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.

[4]      As a result of the OIC’s investigation, I find that Justice did not correctly apply the Act. Below, I have provided numerous examples of information that should have been released to the complainant. These examples are non-exhaustive and represent the types of information found within the records that do not warrant exemption. These examples are meant to assist Justice in implementing the recommendations that I intend to make.

Subsection 16(2): facilitating the commission of an offence

[5]      Subsection 16(2) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to facilitate the commission of an offence.

[6]      To claim this exemption, institutions must show the following:

• Disclosing the information (for example, information on criminal methods or techniques, or technical details of weapons, as set out in paragraphs 16(2)(a) to (c)) could facilitate the commission of an offence.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[7]      When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[8]      Justice applied subsection 16(2) to withhold information on pages 10,151; 10,349; 13,388 and 13,390 of the records. The information withheld under this provision are teleconference access codes, conference ID numbers and related passcodes.

[9]      Based on Justice’s representations, I am satisfied that this information meets the criteria for subsection 16(2) and that release could reasonably be expected to facilitate the commission of an offence, namely a security breach.

Did the institution reasonably exercise its discretion to decide whether to release the information?

[10]    Under subsection 16(2), Justice was required to reasonably exercise its discretion to decide whether to release the information. In doing so, Justice had to consider all the relevant factors for and against disclosure.

[11]    Justice’s representations reflect that it considered various factors in the exercise of discretion, including the fact that phone access codes are not unique and are reused on an ongoing basis within the department and government.

[12]    I am satisfied that Justice considered all relevant factors and conclude that it reasonably exercised its discretion to decide not to release this information.

Paragraph 21(1)(a): advice or recommendations

[13]    Paragraph 21(1)(a) allows institutions to refuse to disclose advice or recommendations developed by or for a government institution or a minister.

[14]    To qualify for exemption under paragraph 21(1)(a), the records that contain the information must have been created less than 20 years before the access request was made.

[15]    To claim this exemption, institutions must then show the following:

• The information is advice or recommendations.
• The information was created by or for a government institution or minister.

[16]    When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

[17]    However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) to refuse to disclose the following: 

• records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
• reports prepared by consultants or advisers who were not officers or employees of an institution or members of a minister’s staff at the time.

Does the information meet the requirements of the exemption?

[18]    Justice applied paragraph 21(1)(a) to withhold information on page 6, 633 of the records.

[19]    Based on Justice’s representations, I am satisfied that this information constitutes advice and recommendation given by a government official and that it meets the criteria for paragraph 21(1)(a) of the Act.

Did the institution reasonably exercise its discretion to decide whether to release the information?

[20]    Under paragraph 21(1)(a), Justice was required to reasonably exercise its discretion to decide whether to release the information. In doing so, Justice had to consider all the relevant factors for and against disclosure.

[21]    Based on Justice’s representations, I am satisfied that all relevant factors were considered and conclude that Justice reasonably exercised its discretion to decide not to release this information.

Paragraph 21(1)(b): accounts of consultations or deliberations

[22]    Paragraph 21(1)(b) allows institutions to refuse to disclose accounts of consultations or deliberations in which government employees, ministers or members of a minister’s staff took part.

[23]    To qualify for exemption under paragraph 21(1)(b), the records that contain the information must have been created less than 20 years before the access request was made.

[24]    To claim this exemption, institutions must then show the following:

• The information is an account—that is, a report or a description.
• The account is of consultations or deliberations.
• At least one of an institution’s directors, officers or employees, a minister or a member of a minister’s staff was involved in the consultations or deliberations.

[25]    When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

[26]    However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(b) to refuse to disclose the following: 

• records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
• reports prepared by consultants or advisers who were not officers or employees of an institution or members of a minister’s staff at the time.

Does the information meet the requirements of the exemption?

[27]    Justice applied paragraph 21(1)(b) to withhold information on pages 10,114 and 10,172-10,180 of the records.

[28]    Based on Justice’s representations, I am satisfied that this information constitutes accounts of consultations or deliberations among government officials and that it meets the criteria for paragraph 21(1)(b) of the Act.

Did the institution reasonably exercise its discretion to decide whether to release the information?

[29]    Under paragraph 21(1)(b), Justice was required to reasonably exercise its discretion to decide whether to release the information. In doing so, Justice had to consider all the relevant factors for and against disclosure.

[30]    Based on Justice’s representations, I am satisfied that all relevant factors were considered and conclude that Justice reasonably exercised its discretion to decide not to release this information.

Section 23: solicitor-client and litigation privilege

[31]    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.

[32]    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.

[33]    To claim this exemption with regard to litigation, institutions must show the following:

• The information was prepared or gathered for the dominant purpose of litigation.
• The litigation either is in progress or is reasonably expected to occur.

[34]    Litigation privilege generally expires when the litigation ends, except when related litigation is pending or is reasonably expected to occur.

[35]    When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[36]    Justice applied section 23 to withhold the majority of the responsive records. In its latest representations, Justice confirmed that it is relying on both solicitor-client and litigation privilege.

Solicitor-client privilege

[37]    Much of the information withheld under section 23 satisfies the criteria for solicitor-client privilege, including confidential communications between Justice counsel and between Justice counsel and the client.

[38]    While attachments to such communications are not automatically privileged (see Canada (Office of the Information Commissioner) v. Canada (Prime Minister), 2019 FCA 95, para. 55; Murchison v. Export Development Canada, 2009 FC 77, paras. 44-46)); I accept that most attachments to privileged communications within Justice, or between Justice and the client, are subject to solicitor-client privilege.

[39]    However, I am not convinced that many of the records at issue are subject to solicitor-client privilege. This includes, but is not limited to records that, on their face, were communications that took place beyond the scope of solicitor-client relationship. Examples of such records are found on pages 3, 306; 3,307; 5,550-5,570; 5,716-6,438; 6,675-6,680; 9,580-9,594; 13,394-13,581; 13,905-13,911; 16,255-16,311.

[40]    These external communications do not fall within the continuum of confidential communications between solicitor and client. More precisely, these communications took place outside the solicitor-client relationship of Justice and its client.

[41]    In its latest representations, Justice argues that the sui generis relationship between parties established under the IRSSA is not adversarial and that the principles of the zone of privacy and confidentiality between these parties serve to bring them into a framework of common interest. As discussed in detail further below, Justice has not established the existence of common interest privilege with regard to different parties to litigation. In addition, Justice did not establish that attachments to these external communications between Justice counsel and other entities are subject to solicitor-client privilege.

[42]    Furthermore, there are many instances of external communications (including attachments) having later been forward within Justice, between Justice counsel and/or administrative support staff. I note that these external communications would also exist as stand-alone records in response to the request (the scope of which expressly includes external communications within a specific timeframe). To the extent that such external stand-alone communications were excluded as duplicates, this is inconsistent with the Act.

[43]    In light of the above, I am not satisfied that solicitor-client privilege applies to all information withheld under this exemption.

Litigation privilege

[44]    I am also not satisfied that litigation privilege applies to all of the information withheld under section 23. The purpose of litigation privilege is to create a ‘’zone of privacy’’ in relation to pending or apprehended litigation, between adverse parties to litigation. (Blank v. Canada (Justice), 2006 SCC 39, paras. 27-28, 34.)

[45]    In many instances, the information withheld by Justice under section 23 consists of records that, in my view, were communicated outside of any zone of privacy in relation to pending or apprehended litigation. In other instances, withheld information appears to have been filed publicly in Court. Even if such communications had initially been subject to litigation privilege, the privilege would have been waived through disclosure to an adversary in litigation or to the Court. (see Boulos v. Canada (Public Service Alliance), 2012 FCA 193, paras. 26-30; Grand Rapids First Nation v. Canada, 2014 FCA 201, paras. 49-50; Belgravia Investments v. Canada, 2002 FCT 649, para. 83).

[46]    In its representations, Justice states that it is not necessary that communications be confidential for litigation privilege to apply. According to Justice, the information protected by litigation privilege includes documents arising between Justice counsel, between Justice counsel and Justice employees, and between Justice counsel and third parties.

[47]    Justice appears to take the position that some of the records at issue are subject to a common interest privilege. By way of explanation, Justice made reference, inter alia, to ‘’ exchanges within a confidential realm between these parties for the purposes of litigation, negotiation and reconciliation.”

[48]    Common interest privilege is an exception to waiver, which can apply in the context of parties having common interests in litigation or in a commercial transaction (see Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, paras. 22-25; Iggillis Holdings Inc. v. Canada (National Revenue), 2018 FCA 51, para. 38).

[49]    Common interest privilege requires sufficiently similar interests held in common. Justice did not show that the test for common interest privilege, whether for the purpose of solicitor-client or litigation privilege, is met. More specifically, it did not establish that its interests were sufficiently common with that of the other parties to the litigation and/or the Court in order to support its application of section 23 on this ground. The various parties to Justice’s external communications at issue do not all have common interests in this sense envisioned in the jurisprudence; Justice has not demonstrated that the test for common interest privilege, which requires sufficiently similar interests held in common, is met.

[50]    Based on all of the above, and having reviewed the records at issue in detail, I am not satisfied that litigation privilege applies to all information withheld under this exemption.

Did the institution reasonably exercise its discretion to decide whether to release the information?

[51]    Under section 23, Justice was required to reasonably exercise its discretion to decide whether to release the information. In doing so, Justice had to consider all the relevant factors for and against disclosure. This is relevant to the extent that section 23 applies to the information at issue.

[52]    In the course of the OIC’s investigation, Justice provided detailed representations on the factors considered in the exercise of discretion in regards to the information withheld under section 23, including factors raised by the OIC. For example, I note Justice’s consideration of reconciliation as part its consideration of the public interest with regard to the information at issue. I am satisfied that Justice reasonably exercised its discretion to withhold the information at issue to the extent that it is subject to solicitor-client privilege or litigation privilege.

Subsection 69(1): Cabinet confidences

[53]    Under subsection 69(1), the right to access records under Part 1 of the Access to Information Act does not apply to confidences of the Queen’s Privy Council for Canada (Cabinet confidences) (for example, memoranda to Cabinet, discussion papers presenting background explanations, analyses of problems or policy options for consideration by the Cabinet in making decisions, and draft legislation, as set out in paragraphs 69(1)(a) to (g)).

[54]    However, under subsection 69(3), the right to access records does apply to Cabinet confidences that are more than 20 years old and to discussion papers when the decisions to which they relate have been made public or, when they have not, four years have passed since the decisions were made.

Does the information meet the requirements of the exclusion?

[55]    Pursuant to subsection 69(1), Justice excluded portions of the records.

[56]    The OIC cannot review the information to which Cabinet confidences exclusions have been applied. Justice consulted its designated counsel for a second review of its application of section 69 and confirmed the exclusion of the information pursuant to subsection 69(1).

Result

[57]    The complaint is well founded.

Recommendation

I recommend that the Minister of Justice:

Disclose all of the information at issue that is currently withheld pursuant to section 23 which does not meet the requirements of section 23 for the reasons set out above, including but not limited to, exchanges between Justice and other parties (e.g., opposing counsel, counsel for the Court and other parties to the litigation).

The Minister must abide by the terms of subsection 37(4) when disclosing any records in response to my recommendation.

On November 15, 2022, I issued my initial report to the Minister of Justice setting out my recommendation.

On December 19, 2022, the Deputy Minister of Justice and Deputy Attorney General responded on behalf of the Minister, stating among other things:

When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.