Complaint: Library and Archives Canada claimed section 23 to withhold records related to government preparations for a Supreme Court hearing on why a soldier had been detained and sent to prison on charges of refusing to obey orders.

Investigation: The pages at issue comprised a 1918 legal opinion from the Department of Justice. The legal opinion referred to case law, some of which dated to the 1800s, and two repealed statutes. Having determined that the legal advice privilege applied, Library and Archives Canada did not then consider discretionary factors that would have favoured releasing the legal opinion.

Outcome: In response to the Information Commissioner’s formal recommendation, the records were disclosed.

Information Commissioner’s position:

• When claiming the legal advice privilege, institutions must consider all relevant factors for and against disclosure, including, as in this case, the age and historical significance of the information, before deciding to withhold it.