ORDER MO-3256

Appeal MA15-124-3

Municipality of North Perth

October 23, 2015

Summary: The appellant requested a copy of an invoice sent by a lawyer to his client (North Perth) relating to a matter in which the appellant was involved. This order determines that North Perth conducted a reasonable search for responsive records that fall within the scope of the appellant’s liberally interpreted request. This order also finds that the detailed invoice that was located by North Perth is presumptively privileged, and that the presumption has not been rebutted for the withheld invoice. It also determines that the record contains the appellant’s personal information and finds that the invoice qualifies for exemption under section 38(a) (discretion to deny access to requester’s own information) in conjunction with section 12 (solicitor-client privilege) of the Act.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, ss. 2(1) definition of “personal information”, 12, 17 and 38(a).

Cases Considered: Maranda v. Richer [2003] 3 S.C.R. 193.

OVERVIEW:

[1]  The requester made the following request for access to information under the Municipal Freedom of Information and Protection of Privacy Act  (the Act  or MFIPPA ) to the Municipality of North Perth (North Perth):

I am requesting a copy of the invoice as presented by municipal lawyer [named lawyer] of the firm [named law firm], sent to the Municipality of North Perth for payment in association with services rendered on or about February 7, 2012 in a matter involving myself [requester’s name].

[2]  The requester alleged that North Perth had failed to issue an access decision within the time limits set out under the Act and this office opened appeal file MA15-124 as a deemed refusal appeal. In fact, North Perth had issued an access decision before the appellant had filed his deemed refusal appeal. When the appellant confirmed that he obtained a copy of the decision letter from North Perth, appeal file MA15-124 was closed.

[3]  In its initial access decision, North Perth advised that it had conducted a search for the requested invoice, but that no copy could be found. The appellant appealed the decision, alleging that a responsive record ought to exist. Accordingly, appeal file MA15-124-2 was opened as a reasonable search appeal.

[4]  At mediation of appeal file MA15-124-2, the appellant advised that he had made a previous access request for the responsive record but on that occasion North Perth relied on section 12 (solicitor-client privilege) of the Act  to deny access to a record they had identified as being responsive to that request. North Perth conducted an additional search and located a responsive record. North Perth then issued a final access decision, relying on section 12  of the Act  to deny access to the responsive record it located, in its entirety.

[5]  As a result, appeal file MA14-124-2 was closed. The appellant then appealed North Perth’s final access decision and this appeal file (MA15-124-3) was opened.

[6]  Mediation did not resolve the appeal and it was moved to the adjudication stage of the appeal process when an adjudicator conducts an inquiry under the Act . The Mediator’s Report indicates that one of the issues in this appeal is the reasonableness of North Perth’s search for “[i]nvoice(s) and other records indicating the fee for services rendered on or about [February 7, 2012] regarding a matter involving the appellant.” I decided to add the scope of the appellant’s request as an issue in the appeal.

[7]  During the inquiry into the appeal, I sought and received representations from North Perth and from the appellant. Representations were shared in accordance with section 7 of the IPC’s Code of Procedure and Practice Direction 7. In addition, in the course of adjudication, I requested and received a copy of North Perth’s Records Retention By-Law and Records Retention Schedule. I also asked that copies be provided to the appellant. The appellant provided additional representations to this office after he had received his copy of these materials.

RECORD AT ISSUE:

[8]  The sole record at issue is an invoice dated May 31, 2012.

DISCUSSION:

SCOPE OF THE REQUEST/RESPONSIVENESS OF RECORDS

Issue A:  What is the scope of the request? What records are responsive to the request?

[9]  Section 17  of the Act  imposes certain obligations on requesters and institutions when submitting and responding to requests for access to records. This section states, in part:

(1)   A person seeking access to a record shall,

(a)  make a request in writing to the institution that the person believes has custody or control of the record;

(b)  provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record;

. . .

(2)  If the request does not sufficiently describe the record sought, the institution shall inform the applicant of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).

[10]  Institutions should adopt a liberal interpretation of a request, in order to best serve the purpose and spirit of the Act . Generally, ambiguity in the request should be resolved in the requester’s favour. ^[1]

[11]  To be considered responsive to the request, records must “reasonably relate” to the request. ^[2]

[12]  North Perth submits that the request was sufficiently detailed “to enable a reasonable search to identify the record”. Perth submits that it did not call the appellant to clarify the term “on or about February 7, 2012”:

... but chose to search for municipal paid invoices received from [the named law firm] dated January 31, 2012, February 28, 2012, March 31, 2012 and April 30, 2012. By searching records in this time frame the municipality adopted a liberal interpretation of the request for the benefit of the requester.

Upon completion of this search, no records were found and the municipality provided the requester with a Notice of Decision indicating same.

Upon receipt of Appeal MA15-124-2, a further search was conducted to find an invoice from [the named law firm] dated May 31, 2012 for General Matters which included the date February 7, 2012 and matters involving [the appellant]. A Notice of Decision was issued indicating “no access granted” relying on section 12 (solicitor-client privilege) of the Act .

[13]  The appellant provided no representations on this issue.

[14]  In my view, notwithstanding the comments in the Mediator’s Report, the request was clear and specific. North Perth correctly characterized the scope of the request, and appropriately adopted a liberal interpretation of it by searching for an invoice that included the date February 7, 2012 and matters involving the appellant. I now turn to the reasonableness of North Perth’s search for responsive records.

SEARCH FOR RESPONSIVE RECORDS

Issue B:  Did the institution conduct a reasonable search for records?

[15]  Where a requester claims that additional records exist beyond those identified by the institution, the issue to be decided is whether the institution has conducted a reasonable search for records as required by section 17. ^[3] If I am satisfied that the search carried out was reasonable in the circumstances, I will uphold the institution’s decision. If I am not satisfied, I may order further searches.

[16]  The Act  does not require the institution to prove with absolute certainty that further records do not exist. However, the institution must provide sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records. ^[4] To be responsive, a record must be "reasonably related" to the request. ^[5]

[17]  A reasonable search is one in which an experienced employee knowledgeable in the subject matter of the request expends a reasonable effort to locate records which are reasonably related to the request. ^[6]

[18]  A further search will be ordered if the institution does not provide sufficient evidence to demonstrate that it has made a reasonable effort to identify and locate all of the responsive records within its custody or control. ^[7]

[19]  Although a requester will rarely be in a position to indicate precisely which records the institution has not identified, the requester still must provide a reasonable basis for concluding that such records exist. ^[8]

[20]  North Perth provides an affidavit of its Deputy Clerk in support of its position that it conducted a reasonable search for responsive records. She deposes that her responsibilities include maintaining the central file room and TabFusion software through the storage, recording and updating of all correspondence/records application to Council and North Perth in accordance with its Records Retention By-law and other applicable legislation. She further deposes that she is an experienced employee knowledgeable in the subject matter of the request.

[21]  She deposes that she manually searched the paid invoices received from the named law firm:

... for the months paid in January, February, March and April 2012 in the central file room in consultation with [North Perth’s Chief Administrative Officer] and found the following:

i) Invoice dated January 31, 2012 for services rendered in November and December 2011;

ii) No invoice received in February for services rendered; and

iii) Invoice dated March 31, 2012 for services rendered in December 2011, January 2012 and March 2012. No entries for February were included in this March invoice.

That following receipt of the Notice of Mediation and a telephone conversation with [the Mediator], a further search was conducted and invoice dated May 31, 2015 for services rendered in February 2012 noting appellant’s name was found.

That it is not possible that such records exist as paid invoices are kept in compliance with the North Perth Retention By-law for seven (7) years.

[22]  In response, the appellant states that at one point North Perth indicates that it received the invoice on May 13, 2012, but the affiant deposes that the invoice was received on May 31, 2015. He submits that “none of these dates coincide with the facts”.

[23]  The appellant further submits that “[t]he suggestion that documents would be destroyed after 7 years is of no consequence since the requests fall well within their 7 year limit.”

[24]  In reply, North Perth submits that the invoice was dated May 31, 2012 and entered into the Accounts Payable system on July 18, 2012. North Perth further advises that the date of May 31, 2015 in the affidavit it provided was a typographical error and should have read May 31, 2012. North Perth provided a copy of an amended affidavit containing the corrected date. North Perth submits that the requested invoice has not been destroyed and that it is in compliance with its Records Retention By-Law.

[25]  After receiving a copy of North Perth’s Records Retention By-Law and Records Retention Schedule, the appellant submitted that the applicable provision of the Records Retention schedule supports the retention of the information requested. He submits, amongst other things, that North Perth has sought to “hide” the requested information and is in breach of its own records retention by-law and MFIPPA . He submits that:

It is more than clear that the accounts payable would be available for the period as requested and if it is not [North Perth] would be required to obtain the same from the original sources for the purposes of annual financial audits. If the municipality’s position is that this evidence is not available or destroyed then this action would serve as “spoliation” of evidence ...

[26]  The appellant submits that I would then be entitled to draw an “adverse inference” against North Perth and conclude that a responsive record exists.

[27]  I do not agree with the appellant’s characterization of North Perth’s evidence.

[28]  I accept that there was a typographical error in the original affidavit and the invoice that was located is dated May 31, 2012.

[29]  The appellant’s analysis of North Perth’s submissions is based, in my view, on a misunderstanding of what North Perth actually stated. North Perth’s submissions were that it is not possible that responsive invoices, other than the one they identified exist, because it has a seven year records retention schedule and no other records were found. Put another way, North Perth states that because it has a seven year retention schedule if there was another responsive record, North Perth would have found it.

[30]  As set out above, the Act  does not require the institution to prove with absolute certainty that further responsive records do not exist. However, the institution must provide sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records. Based on the evidence before me I am satisfied that a search was conducted by an experienced employee of North Perth knowledgeable in the subject matter of the request, who expended a reasonable effort to locate records which are reasonably related to the request. The individual located the invoice dated May 31, 2012. No other responsive records were found.

[31]  I am satisfied that, in all the circumstances, North Perth conducted a reasonable search for records responsive to the request.

[32]  I now turn to consider whether section 38(a), in conjunction with section 12, applies to the information in the invoice at issue.

PERSONAL INFORMATION

Issue C:  Does the invoice at issue contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?

[33]  In order to determine which sections of the Act  may apply, it is necessary to decide whether the record contains “personal information” and, if so, to whom it relates. That term is defined in section 2(1) as follows:

“personal information” means recorded information about an identifiable individual, including,

(a)  information relating to the race, national or ethnic 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 if 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 contents of the original correspondence,

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

(h)  the individual’s name if 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;

[34]  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) may still qualify as personal information. ^[9]

[35]  Sections 2(2.1) and 2(2.2) also relate to the definition of personal information. These sections state:

(2.1) 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.

(2.2) For greater certainty, subsection (2.1) 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.

[36]  To qualify as personal information, the information must be about the individual in a personal capacity. As a general rule, information associated with an individual in a professional, official or business capacity will not be considered to be “about” the individual. ^[10]

[37]  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. ^[11]

[38]  To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. ^[12]

[39]  I have reviewed the record and, in my view, it contains the personal information of the appellant as defined in section 2(1)  of the Act . Because the invoice contains the personal information of the appellant, Part II of the Act applies. Accordingly, I will address the application of section 38(a) (discretion to refuse requester’s own information) in conjunction with section 12.

RIGHT OF ACCESS TO ONE’S OWN PERSONAL INFORMATION

Issue D:  Does the discretionary exemption at section 38(a) in conjunction with the section 12 exemption apply to the information in the invoice at issue?

Introduction

[40]  Section 36(1) gives individuals a general right of access to their own personal information held by an institution. Section 38 provides a number of exemptions from this right.

[41]  Section 38(a) reads:

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

if section 6, 7, 8, 8.1, 8.2, 9, 10, 11, 12, 13 or 15 would apply to the disclosure of that personal information.

[42]  Section 38 (a) of the Act  recognizes the special nature of requests for one’s own personal information and the desire of the legislature to give institutions the power to grant requesters access to their personal information. ^[13]

[43]  North Perth has relied on section 12 to deny access to the invoice. Section 12 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.

[44]  Section 12 contains two branches. Branch 1 (“subject to solicitor-client privilege”) is based on the common law. Branch 2 (“prepared by or for counsel employed or retained by an institution...”) is a statutory privilege. The institution must establish that one or the other (or both) branches apply.

Branch 1: common law privilege

[45]  At common law, solicitor-client privilege encompasses two types of privilege: (i) solicitor-client communication privilege; and (ii) litigation privilege.

Solicitor-client communication privilege

[46]  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. ^[14] The rationale for this privilege is to ensure that a client may freely confide in his or her lawyer on a legal matter. ^[15] The privilege covers not only the document containing the legal advice, or the request for advice, but information passed between the solicitor and client aimed at keeping both informed so that advice can be sought and given. ^[16]

[47]  The privilege may also apply to the legal advisor’s working papers directly related to seeking, formulating or giving legal advice. ^[17]

[48]  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. ^[18] The privilege does not cover communications between a solicitor and a party on the other side of a transaction. ^[19]

Litigation privilege

[49]  Litigation privilege protects records created for the dominant purpose of litigation. It is based on the need to protect the adversarial process by ensuring that counsel for a party has a “zone of privacy” in which to investigate and prepare a case for trial. ^[20] Litigation privilege protects a lawyer’s work product and covers material going beyond solicitor-client communications. ^[21] It does not apply to records created outside of the “zone of privacy” intended to be protected by the litigation privilege, such as communications between opposing counsel. ^[22] The litigation must be ongoing or reasonably contemplated. ^[23]

Loss of privilege

Waiver

[50]  Under the common law, solicitor-client privilege may be waived. An express waiver of privilege will occur where the holder of the privilege

• knows of the existence of the privilege, and
• voluntarily demonstrates an intention to waive the privilege. ^[24]

[51]  An implied waiver of solicitor-client privilege may also occur where fairness requires it and where some form of voluntary conduct by the privilege holder supports a finding of an implied or objective intention to waive it. ^[25]

[52]  Generally, disclosure to outsiders of privileged information constitutes waiver of privilege. ^[26] However, waiver may not apply where the record is disclosed to another party that has a common interest with the disclosing party. ^[27]

Termination of litigation

[53]  Common law litigation privilege generally comes to an end with the termination of litigation. ^[28]

Legal billing information

[54]  Legal billing information is presumptively privileged unless the information is “neutral” and does not directly or indirectly reveal privileged communications. ^[29]

[55]  In determining whether or not the presumption has been rebutted, the following questions may be of assistance: (1) is there any reasonable possibility that disclosure of the amount of the fees paid will directly or indirectly reveal any communication protected by the privilege? (2) could an “assiduous inquirer”, aware of background information, use the information requested to deduce or otherwise acquire privileged communications? ^[30]

The representations

[56]  North Perth submits that there are other legal matters identified on the invoice that do not relate to the appellant and which are subject to solicitor-client privilege. North Perth further submits that:

In addition, other legal proceedings are still ongoing between [the appellant] and [North Perth] and solicitor-client confidential communications are required until that litigation is complete. It would be prejudicial to [North Perth’s] interest in those other proceedings for communications between it and its solicitors in other matters to be released.

Matters identified on the invoice not related to [the appellant] are subject to solicitor-client privilege and should not be released.

[57]  North Perth further submits that the fee set out in the invoice relates to general matters with commentaries and does not provide a separate fee for each commentary. North Perth further states that the invoice fee does not represent the specific fee for services rendered on or about February 7, 2012 in a matter involving the appellant. North Perth also advises that the named law firm takes the position that the information sent to North Perth in the invoice was implicitly supplied in confidence, as it was related to its ongoing solicitor-client relationship with North Perth.

[58]  The appellant submits that:

• the legal firm which is the subject of the request “is not associated with the legal proceedings against [North Perth]”
• the legal bill in question was previously presented in open council for payment “in accordance with the Procedure Bylaw and “[North Perth] cannot claim privilege over matters that have been and remain public record”
• North Perth has the ability to sever information for the purpose of this request.

[59]  In his submissions on the exercise of discretion the appellant asserted that “[n]o privilege can be claimed as there is no legal advice within the documents, only legal fees for legal advice”. He further submits that “the information offering is of no consequence in particular when new parties are involved... ”.

[60]  In reply, North Perth submits:

• The named law firm is the same law firm representing North Perth in ongoing legal proceedings between North Perth and the appellant
• Invoices are not presented in open council
• North Perth does not have the ability to sever the record because a separate fee for services pertaining to the appellant does not appear on the invoice.

Analysis and findings

[61]  The information at issue in this appeal is contained in a legal invoice submitted by the solicitor to his client, and is clearly legal billing information.

[62]   The appellant asserts that North Perth has failed to establish that the information in the invoice qualifies for exemption under section 12  of the Act . I note, however, that the Supreme Court of Canada decision in Maranda v. Richer (Maranda) [31] , specifically found that information in legal invoices is presumptively privileged and, therefore, qualifies for exemption unless it can be established that the information is neutral. Accordingly, in these circumstances, the burden of proof does not rest with North Perth, and the information is exempt unless I find that the information (or any portions of the information) is “neutral.” In this appeal, any information that is responsive to the request involves the appellant and based on his knowledge of the underlying matters indicates to me that he would qualify as being “assiduous” and “knowledgeable” about many aspects of the matter which underlies the request, and I find that the disclosure of dates, in combination with his knowledge of the matter, could reveal privileged information.

[63]  I also reject the appellant’s argument that the privilege was waived by the region because it was “presented in open council for payment”. I accept North Perth’s position that this did not occur.

[64]  Lastly, the appellant argues that North Perth could sever the invoice. In considering whether the records at issue can be severed and portions provided to the appellant, in light of the appellant’s familiarity with matters underlying the request, I am satisfied that the presumptive privilege that applies to the invoice has not been rebutted. Furthermore, as identified in previous orders, an institution is not required to sever the record and disclose portions where to do so would reveal only "disconnected snippets," or "worthless" or "meaningless" information. [32]

[65]  Therefore, I find that the information contained in the invoice is solicitor-client privileged information and qualifies for exemption under branch 1 of section 12, in conjunction with section 38(a). I am also satisfied that North Perth did not consider any irrelevant or improper considerations when exercising its discretion not to disclose the invoice to the appellant. In the circumstances, I am satisfied that North Perth properly exercised its discretion not to disclose the invoice to the appellant.

[66]  In summary, I find that the information at issue qualifies for exemption under section 38(a) in conjunction with section 12.

ORDER:

I uphold the decision of North Perth, and dismiss this appeal.

Original Signed by:		October 23, 2015
Steven Faughnan
Adjudicator