The complainant alleged that Crown‐Indigenous Relations and Northern Affairs Canada (CIRNAC) had improperly withheld information under section 23 (solicitor‐client and litigation privilege) of the Access to Information Act. The request was for records related to the ownership, sale, reversion or return of lands on or around the Bruce/Saugeen Peninsula, dating from the 1850s to 1980.

The investigation determined that CIRNAC exempted all of the responsive records in their entirety under section 23.

While CIRNAC acknowledged that the information was not subject to solicitor-client privilege, CIRNAC claimed that the records at issue may be subject to litigation privilege and cited several ongoing matters in the Federal Court of Canada as evidence of this.

The Information Commissioner concluded that CIRNAC fell well short of establishing that the records at issue are subject to litigation privilege. Moreover, CIRNAC failed to demonstrate that any of the records at issue were produced or gathered for the dominant purpose of the cited litigation or related litigation.

The Commissioner recommended that the Minister of Crown-Indigenous Relations disclose the records in their entirety.

CIRNAC gave notice to the Commissioner that it would not be implementing the recommendation.

The complaint is well founded.