Complaint: Library and Archives Canada (LAC) refused to disclose certain records in a file about an individual and the 1917 Halifax Explosion, stating that they were still subject to solicitor-client privilege, as per section 23.

Investigation: The OIC learned during the investigation that LAC withheld the records based on a recommendation from the Department of Justice Canada. The OIC asked LAC to consider disclosing the records in the public interest. In consulting the Department of Justice again, LAC learned that the records were actually under the control of either Transport Canada or Fisheries and Oceans Canada, effectively making one of them the actual client and, as such, responsible for exercising the required discretion to release the records.

Outcome: Transport Canada determined the records held no litigation value and waived the solicitor-client privilege. LAC subsequently released all the records to the requester.

Information Commissioner’s position:

• Even though information may fall under the solicitor-client privilege, an institution still has the discretion to disclose that information.
• Since the privilege belongs to the client and not the lawyer, an institution can decide to waive the privilege, as in this case, particularly when there are no consequences expected from disclosure.