ORDER PO-2973

 

Appeal PA09-396

 

University of Ottawa

 

NATURE OF THE APPEAL:

 

The University of Ottawa (the University) received five separate requests from the same requester for access to information under the Freedom of Information and Protection of Privacy Act (the Act or FIPPA). Appeal PA09-396, which resulted from one of the requests, is the subject of this Order. Two other appeals (assigned appeal file numbers PA09-392 and PA09-393), which also resulted from the requests, will be addressed by separate orders. 

 

This appeal addresses a request for access to all records about the requester that were “created by and/or communicated by/to [a named individual] and/or the Office of the Legal Services and/or the Office of the Vice-President, Governance to/by another person or persons”. These included, but were not limited to:

 

•         records naming the requester explicitly by the requester’s given name, surname, and/or any name identifiable with the requester’s person

 

•         records wherein the requester  is identified by “an alias” that includes, but is not limited to “an Institutional student number, an e-mail address, abbreviated spellings of names identifiable with [the requester’s] person, and substantive references to [the requester’s] person”

 

The University identified records responsive to this request and in its initial decision letter granted partial access to them, upon payment of a fee. As set out in the Mediator’s Report, the University took the position that certain portions of the records were not responsive to the request and relied on the exemptions at section 21(1) of the Act (personal privacy) and 49(a) (discretion to refuse requester’s own information), in conjunction with section 19 (solicitor-client privilege), to deny access to the responsive portions it withheld.

 

The requester (now the appellant) appealed the University’s decision.

 

During mediation, the University reconsidered its position. The University granted access to the withheld portion of certain records, but maintained its position that section 49(a), in conjunction with section 19, applied to others. Accordingly, the application of section 21(1) of the Act is no longer at issue in the appeal. The appellant then decided to narrow her request to encompass Records 80 to 113, only. Subsequently, in a discussion with the Mediator the appellant further narrowed the request to include Records 83, 86, 87, 90, 96, 97 and 112, only. In response, the University issued a supplementary decision letter disclosing records 83, 86, 87, 96 and 112 to the appellant. As a result, only Records 90 and 97 remain at issue in the appeal.

 

Mediation did not resolve the appeal and it was moved to the adjudication stage of the appeal process, where an adjudicator conducts an inquiry under the Act.

 

I commenced my inquiry by sending a Notice of Inquiry setting out the facts and issues in the appeal to the University, initially. The University provided representations in response. I then sent a Notice of Inquiry, along with the University’s representations, to the appellant. The appellant provided representations in response. I determined that the appellant’s representations raised issues to which the University should be provided an opportunity to reply. Accordingly, I sent a copy of the appellant’s representations to the University inviting its representations in reply. The University provided reply representations.

 

RECORD

 

The sole records remaining at issue in this appeal are emails identified as Records 90 and 97.

 

DISCUSSION:

 

PERSONAL INFORMATION

 

Under FIPPA, different exemptions may apply depending on whether a record at issue contains or does not contain the personal information of the requester.[1] Where records contain the requester’s own personal information, either alone or together with the personal information of other individuals, access to the records is addressed under Part III of FIPPA and the exemptions at section 49 may apply. Where the records contain the personal information belonging to individuals other than the appellant, access to the records is addressed under Part II of FIPPA and the exemptions found at sections 12 to 22 may apply. In order to determine which sections of FIPPA apply, it is necessary to decide whether the record contains “personal information” as defined in section 2(1) of FIPPA and, if so, to whom it relates. 

 

The University has withheld Records 90 and 97 under the exemption at section 49(a), read in conjunction with 19. However, as the exemption in section 49(a) only applies if the record contains the “personal information” of the appellant, before reviewing the possible application of the exemption claimed, I must first determine if the record contains “personal information” and, if so, to whom it relates.

 

To satisfy the requirements of the definition in section 2(1) of FIPPA, the information must be “recorded information about an identifiable individual,” and it must be reasonable to expect that an individual may be identified if the information is disclosed.[2] The definition of personal information in section 2(1) contemplates inclusion of the following types of information:

 

(a)        information  relating to the race, national or ethic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,

 

(b)        information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

 

(c)        any identifying number, symbol or other particular assigned to the individual, 

 

(d)       the address, telephone number, fingerprints or blood type of the individual,           

 

(e)        the personal opinions or views of the individual except where they relate to another individual,

 

(f)        correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the content of the original correspondence,

 

(g)        the views or opinions of another individual about the individual, and

 

(h)        the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual.

 

The list of examples of personal information under section 2(1) is not exhaustive. Therefore, information that does not fall under paragraphs (a) to (h) of the definition of the term in section 2(1) may still qualify as personal information.[3]

 

Older orders of this office established that information associated with an individual in a professional, official or business capacity will not necessarily be considered to be “about” the individual.[4]  On April 1, 2007, amendments relating to the definition of personal information in FIPPA came into effect. To some extent, the amendments formalized the distinction made in previous orders between personal and professional (or business) information for the purposes of FIPPA. Sections 2(3) and (4) state:

 

(3)  Personal information does not include the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity.

 

(4)  For greater certainty, subsection (3) applies even if an individual carries out business, professional or official responsibilities from their dwelling and the contact information for the individual relates to that dwelling.

 

However, it remains true that even if information relates to an individual in a professional, official or business capacity, it may still qualify as personal information if the information reveals something of a personal nature about the individual.[5]

 

I have reviewed the record at issue and I am satisfied that it contains the personal information of the appellant within the scope of the definition of personal information set out at section 2(1), above.

 

RIGHT OF ACCESS TO ONE’S OWN PERSONAL INFORMATION

 

Section 47(1) of FIPPA gives individuals a general right of access to their own personal information held by an institution. Section 49 of FIPPA provides a number of exemptions from this right. Section 49(a) states:

 

A head may refuse to disclose to the individual to whom the information relates personal information,

 

where section 12, 13, 14, 14.1, 14.2, 15, 16, 17, 18, 19, 20 or 22 would apply to the disclosure of that personal information [emphasis added];

 

SOLICITOR-CLIENT PRIVILEGE

 

Sections 19(a) and (c) of the Act read:

 

A head may refuse to disclose a record,

 

(a)     that is subject to solicitor-client privilege; or

 

(c)     that was prepared by or for counsel employed or retained by an educational institution for use in giving legal advice or in contemplation of or for use in litigation.

 

Section 19 contains two branches as described below.  Branch 1 arises from the common law and section 19(a).  Branch 2 is a statutory privilege and arises in the case of counsel employed or retained by an educational institution, from section 19(c).  The institution must establish that at least one branch applies.

 

Branch 1:  common law privilege

 

Branch 1 of the section 19 exemption encompasses two heads of privilege, as derived from the common law:  (i) solicitor-client communication privilege; and (ii) litigation privilege.  In order for branch 1 of section 19 to apply, the institution must establish that one or the other, or both, of these heads of privilege apply to the records at issue.[6]

 

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.[7] The rationale for this privilege is to ensure that a client may confide in his or her lawyer on a legal matter without reservation.[8]

 

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.[9]

 

The privilege may also apply to the legal advisor’s working papers directly related to seeking, formulating or giving legal advice.[10]

 

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.[11]

 

Litigation privilege

 

Litigation privilege protects records created for the dominant purpose of litigation, actual or reasonably contemplated.[12]

In Solicitor-Client Privilege in Canadian Law by Ronald D. Manes and Michael P. Silver,[13] pages 93-94, the authors offer some assistance in applying the dominant purpose test, as follows:

 

The “dominant purpose” test was enunciated [in Waugh v. British Railways Board, [1979] 2 All E.R. 1169] as follows:

 

A document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.

 

It is crucial to note that the “dominant purpose” can exist in the mind of either the author or the person ordering the document’s production, but it does not have to be both.

.  .  .  .  .

 

[For this privilege to apply], there must be more than a vague or general apprehension of litigation.

 

Branch 2:  statutory privileges

 

Branch 2 applies to a record that was prepared by or for counsel for an educational institution, “for use in giving legal advice” or “in contemplation of or for use in litigation.” The statutory exemption and common law privileges, although not necessarily identical, exist for similar reasons.

 

Termination of litigation does not affect the application of statutory litigation privilege under branch 2.[14]

 

The Representations of the University

 

The University submits that Records 90 and 97 are subject to both the common law and statutory solicitor-client communication and litigation privilege. The University submits that the records “were prepared in the context of the contemplated legal proceedings against the University.”

 

The University submits, in particular:

 

The discussions in Record 90 were sent to the University’s Legal Counsel as part of the “continuum of communications” between solicitor and the client.

 

The communications taking part in Record 97 between the University’s Assistant Dean and Secretary General of the Faculty of Graduate and Postdoctoral Studies and the University’s Legal Counsel were prepared for the purpose of seeking and of obtaining professional legal advice. This communication was of a confidential nature and was produced in the context of the contemplated legal proceedings against the University, involving the appellant.   

 

The University submits that it has not taken any action that constitutes a waiver of solicitor-client privilege either implicitly or explicitly.

 

The Appellant’s Representations

 

The appellant takes the position that the University has improperly relied on section 19 of the Act to prevent disclosure of this responsive record. The appellant refers to Records 86, 87 and 112, that were originally at issue in this appeal, as examples of where the University “misused” the section 19 exemption. The appellant explains that while the University initially claimed that those records were exempt under section 19 of the Act “on the sole ground that they contained communications involving the Institution’s legal counsel,” they were subsequently disclosed in their entirety to the appellant during mediation. The appellant submits therefore that she “has reasonable grounds to believe that the Institution is misusing section 19 of the Act to prevent from disclosure records that further incriminate the Institution in its mistreatment of the appellant.”

 

The University’s Reply Submissions

 

In reply the University denies that it misused the solicitor-client privilege exemption, and repeats and relies on its earlier submissions.

 

Analysis and Finding

 

I have reviewed the contents of Records 90 and 97 and carefully considered the submissions of the parties. Whether or not other records at issue in this appeal were subject to section 19 of the Act, is not the issue before me. I must consider only whether Records 90 and 97 fall within the scope of section 19. In my view, they do. I find that disclosing Records 90 or 97 would reveal the substance of confidential communications between a solicitor and client directly relating to the provision or seeking of legal advice, or represent a continuum of communication between a solicitor and client aimed at keeping both informed so that advice may be sought and given as required. Accordingly, Records 90 and 97 qualify for exemption under section 49(a) of the Act, in conjunction with section 19(a). I am also satisfied that there has been no waiver of privilege with respect to these records.

 

SEVERANCE

 

Where a record contains exempt information, section 10(2) requires the University to disclose as much of the record as can reasonably be severed without disclosing the exempt information.  This office has held, however, that a record should not be severed where to do so would reveal only “disconnected snippets”, or “worthless”, “meaningless” or “misleading” information.  Further, severance will not be considered reasonable where an individual could ascertain the content of the withheld information from the information disclosed.[15]

 

Based upon my review of the Records 90 and 97 any potential severance would either reveal exempt information or result in disconnected snippets of information being revealed.

 

EXERCISE OF DISCRETION

 

I must now determine whether the University exercised its discretion in a proper manner in applying section 49(a) in conjunction with section 19(a) of the Act to Records 90 and 97.

 

The exemption at section 49(a) is discretionary and permits an institution to disclose information despite the fact that it could withhold it.  An institution must exercise its discretion. On appeal, the Commissioner may determine whether the institution failed to do so. In addition, the Commissioner may find that the institution erred in exercising its discretion where, for example,

 

•       it does so in bad faith or for an improper purpose

•       it takes into account irrelevant considerations

•       it fails to take into account relevant considerations

 

In any of these cases, this office may send the matter back to the institution for an exercise of discretion based on proper considerations.[16]  However, pursuant to section 54(2) of the Act, this office may not substitute its own discretion for that of the institution.

 

In its representations on the exercise of discretion, the University sets out the factors and circumstances it considered in its exercise of discretion. The appellant asserts that the University improperly applied section 19. 

 

I am satisfied that that the University applied section 49(a), read in conjunction with section 19(a), appropriately to Records 90 and 97. The fact that the University ultimately decided not to rely on section 49(a) (in conjunction with section 19(a)), with respect to other records in this appeal, does not lead inevitably to a conclusion that it improperly exercised its discretion to apply section 49(a) (in conjunction with section 19(a)) to Records 90 and 97. Accordingly, I find that Records 90 and 97 are properly exempt from disclosure under the Act.

ORDER:

 

I uphold the decision of the University to withhold access to Records 90 and 97 and dismiss the appeal.

 

 

 

 

 

Original Signed By:_________________________                            May 25, 2011                       

Steven Faughnan

Adjudicator