Access to Information Orders
Decision Information
NATURE OF THE APPEAL: This is an appeal from a decision of The Regional Municipality of Niagara (the Region), made under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The requester (now the appellant) sought access to all email correspondence, incoming and outgoing, both deleted and archived, containing his surname in the text, from the email files of nine named individuals and their assistants. The appellant requested that the search be done by performing a software text search for his surname in the email accounts of these individuals, including archived and deleted email sections. He also asked for access to the list of emails generated by such a search. The appellant requested that all responsive records be emailed to him. The Region issued an interim access decision, initially, in which it provided a fee estimate of $65.00, asked for a deposit of 50% of this estimate before processing the records, and indicated that access to most of the records would be denied under section 12 (solicitor-client privilege) of the Act . The Region also stated that it would not search in archived and deleted email sections, citing as authority section 1 of Regulation 823 (definition of a "record"). The appellant appealed from the Region's decision. During mediation through this office, certain matters were narrowed or clarified. The Region issued a final decision, confirming its decision to deny access to the records under section 12, its decision not to search for archived and deleted emails, and confirming the fee payable for access without the requirement of a deposit. I sent a Notice of Inquiry to the Region, initially, inviting it to submit representations on the facts and issues in the appeal. I then sent the Notice to the appellant, along with the representations of the Region (except for certain confidential portions), and invited his response. I have received representations from the appellant. RECORDS: The records to which access has been denied under section 12 are listed in an Index of Records provided to the appellant and consist of email correspondence. All are either to or from the Region's Director of Legal Services or outside legal counsel, or have been forwarded or copied to the Region's Director of Legal Services or outside counsel by employees or officials of the Region. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE Section 12 of the Act reads: A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation. Section 12 contains two branches, the "common law" privilege, and the "statutory" privilege. It is unnecessary to consider the application of the statutory privilege separately, as the result in this appeal would be the same under either branch. Under the common law, the term "solicitor-client privilege" encompasses two types of privilege: solicitor-client communication privilege litigation privilege Solicitor-client communication privilege Solicitor-client communication privilege protects direct communications of a confidential nature between a solicitor and client, or their agents or employees, made for the purpose of obtaining or giving professional legal advice [ Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 (S.C.C.)]. The rationale for this privilege is to ensure that a client may confide in his or her lawyer on a legal matter without reservation [Order P-1551]. The privilege applies to "a continuum of communications" between a solicitor and client: . . . Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach [ Balabel v. Air India , [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.)]. The privilege may also apply to the legal advisor's working papers directly related to seeking, formulating or giving legal advice [ Susan Hosiery Ltd. v. Minister of National Revenue , [1969] 2 Ex. C.R. 27]. Confidentiality is an essential component of the privilege. Therefore, the institution must demonstrate that the communication was made in confidence, either expressly or by implication [ General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.)]. Representations The Region submits that the records constitute direct communications of a confidential nature between the Region as client and its solicitors. The Region states that the solicitor-client privilege applies to communications involving the Region's outside counsel, as well as its Director of Legal Services. The Region provides information about the subject matter of these communications. Some of them relate to ongoing litigation between the Region and the appellant over payment of legal costs subsequent to a court judgment. I will not reveal the subject matter of other communications for confidentiality reasons. The appellant submits that the litigation between it and the Region is long over, and it cannot be relied on by the Region to deny disclosure. Further, the appellant submits that the Director of Legal Services is a director who is no different in stature from a Director of Public Works or Director of Community Services, or of any other department. He asserts that the use of the word "legal" in the job title does not in and of itself create the part of a "solicitor" in a solicitor-client relationship. Further, the appellant states that the Region is represented by outside counsel in the litigation, and in acting as the contact person in that litigation, the Director of Legal Services is no different from any other employee of the Region for the purpose of this request. The appellant submits that the Director of Legal Services performs management functions only and does not give legal advice. Analysis In Order MO-1707, I considered similar submissions from the appellant on the status of the Region's Director of Legal Services, and concluded: I am satisfied that the Director of Legal Services is a legal advisor to the Region, as his title suggests. There is no reason to question that he is employed as legal counsel by the Region, and that at least part of his function is to provide legal services. Further, I find that the circumstances under which the records were forwarded to him involved him in his capacity as legal advisor. Whether or not the Region engages outside counsel for litigation purposes is not relevant to my finding here. It is not uncommon for legal counsel employed by an institution to serve as the contact person where outside counsel is engaged on a legal matter. I arrive at the same conclusion in the appeal before me. Although it may well be that the duties of the Director of Legal Services extend beyond the giving of legal advice, I find that the circumstances under which the records at issue were either sent by him or forwarded to him involved him in his capacity as legal advisor. This is so whether the records related to the litigation for which the Region had engaged outside counsel, or oth
Decision Content
NATURE OF THE APPEAL:
This is an appeal from a decision of The Regional Municipality of Niagara (the Region), made under the Municipal Freedom of Information and Protection of Privacy Act (the Act). The requester (now the appellant) sought access to all email correspondence, incoming and outgoing, both deleted and archived, containing his surname in the text, from the email files of nine named individuals and their assistants. The appellant requested that the search be done by performing a software text search for his surname in the email accounts of these individuals, including archived and deleted email sections. He also asked for access to the list of emails generated by such a search. The appellant requested that all responsive records be emailed to him.
The Region issued an interim access decision, initially, in which it provided a fee estimate of $65.00, asked for a deposit of 50% of this estimate before processing the records, and indicated that access to most of the records would be denied under section 12 (solicitor-client privilege) of the Act. The Region also stated that it would not search in archived and deleted email sections, citing as authority section 1 of Regulation 823 (definition of a “record”).
The appellant appealed from the Region’s decision. During mediation through this office, certain matters were narrowed or clarified. The Region issued a final decision, confirming its decision to deny access to the records under section 12, its decision not to search for archived and deleted emails, and confirming the fee payable for access without the requirement of a deposit.
I sent a Notice of Inquiry to the Region, initially, inviting it to submit representations on the facts and issues in the appeal. I then sent the Notice to the appellant, along with the representations of the Region (except for certain confidential portions), and invited his response. I have received representations from the appellant.
RECORDS:
The records to which access has been denied under section 12 are listed in an Index of Records provided to the appellant and consist of email correspondence. All are either to or from the Region’s Director of Legal Services or outside legal counsel, or have been forwarded or copied to the Region’s Director of Legal Services or outside counsel by employees or officials of the Region.
DISCUSSION:
SOLICITOR-CLIENT PRIVILEGE
Section 12 of the Act reads:
A head may refuse to disclose a record that is subject to solicitor‑client privilege or that was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation.
Section 12 contains two branches, the “common law” privilege, and the “statutory” privilege. It is unnecessary to consider the application of the statutory privilege separately, as the result in this appeal would be the same under either branch.
Under the common law, the term “solicitor-client privilege” encompasses two types of privilege:
- solicitor-client communication privilege
- litigation privilege
Solicitor-client communication privilege
Solicitor-client communication privilege protects direct communications of a confidential nature between a solicitor and client, or their agents or employees, made for the purpose of obtaining or giving professional legal advice [Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 (S.C.C.)].
The rationale for this privilege is to ensure that a client may confide in his or her lawyer on a legal matter without reservation [Order P-1551].
The privilege applies to “a continuum of communications” between a solicitor and client:
. . . Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach [Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.)].
The privilege may also apply to the legal advisor’s working papers directly related to seeking, formulating or giving legal advice [Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27].
Confidentiality is an essential component of the privilege. Therefore, the institution must demonstrate that the communication was made in confidence, either expressly or by implication [General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.)].
Representations
The Region submits that the records constitute direct communications of a confidential nature between the Region as client and its solicitors. The Region states that the solicitor-client privilege applies to communications involving the Region’s outside counsel, as well as its Director of Legal Services. The Region provides information about the subject matter of these communications. Some of them relate to ongoing litigation between the Region and the appellant over payment of legal costs subsequent to a court judgment. I will not reveal the subject matter of other communications for confidentiality reasons.
The appellant submits that the litigation between it and the Region is long over, and it cannot be relied on by the Region to deny disclosure. Further, the appellant submits that the Director of Legal Services is a director who is no different in stature from a Director of Public Works or Director of Community Services, or of any other department. He asserts that the use of the word “legal” in the job title does not in and of itself create the part of a “solicitor” in a solicitor-client relationship. Further, the appellant states that the Region is represented by outside counsel in the litigation, and in acting as the contact person in that litigation, the Director of Legal Services is no different from any other employee of the Region for the purpose of this request. The appellant submits that the Director of Legal Services performs management functions only and does not give legal advice.
Analysis
In Order MO-1707, I considered similar submissions from the appellant on the status of the Region’s Director of Legal Services, and concluded: