Access to Information and Privilege: The Saga Continues
The Alberta Court of Queen’s Bench has provided some much-needed guidance on solicitor-client privilege in the context of access to information requests in Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2020 ABQB 10 [EPS].
The Alberta Freedom of Information and Protection of Privacy Act [FOIPPA] provides individuals with the right to seek access to records in the custody and control of public bodies. Public bodies regularly receive access requests that encompass records containing privileged information. FOIPPA allows public bodies to exercise their discretion to withhold privileged records. The public body’s decision to withhold records may be reviewed by the Alberta Information and Privacy Commissioner (IPC).
In 2016, the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 made it clear that public bodies are not required to provide the IPC with a copy of the privileged records under review. However, the Court did not provide much additional guidance on how a public body is to establish privilege before the IPC. In the following years, a number of judicial review applications have been heard in Alberta involving claims of privilege before the IPC, but most were short decisions where the court essentially reviewed the records over which privilege was claimed and made findings on whether the records were properly withheld.
EPS dealt with a two judicial review applications which were consolidated as they involved substantially similar issues. At the heart of the applications were two Crown legal opinions that were provided to the EPS. The IPC Adjudicator found that the opinions were not protected by solicitor-client privilege. Aside from finding that the Adjudicator had erred in concluding that no solicitor-client relationship had formed between the Crown and the EPS, Justice Renke makes a number of other findings in EPS that will have direct bearing on public bodies and organizations as they respond to access to information requests.
The Standard of Review
The Adjudicator’s findings with respect to whether a public body properly withheld records based on solicitor-client privilege, are reviewed on a standard of correctness. Solicitor-client privilege has wide legal implications beyond the boundaries of FOIPPA, and limits on privilege are an issue of central importance to the legal system as a whole. Despite the fact that the Adjudicator is often making her decision on the basis of evidence submitted by the public body, and without reviewing the actual records being withheld, her decision must be correct.
Evidence Needed to Establish Privilege
To establish its claim of privilege before the IPC during a review or inquiry, the public body has the burden of proof on a balance of probabilities under FOIPPA. Justice Renke clarifies that the standard of evidence that must be submitted by the public body is the same as what is required in the context of civil litigation. In Alberta, the standard has been set out in Canadian Natural Resources Limited v. Shawcor Ltd., 2014 ABCA 289. The obligation is to provide sufficient information to indicate how a record fits within the claim of privilege, but not with a degree of particularity that would itself defeat the privilege.
The Continuum of Solicitor-Client Privilege
Many lawyers and individuals attuned to the legal system are well versed with the test used to determine whether a communication is protected by solicitor-client privilege: (1) it is a communication between a solicitor and client; (2) which entails the seeking or giving legal advice; and (3) the communication must have intended to be confidential. Where a lawyer is providing pure business or policy advice, the communication may not be privileged. However, Justice Renke reaffirms the principle that the Canadian courts have long recognized a continuum of solicitor-client privilege. For example, communications from a client to a solicitor providing background information for the purposes of obtaining legal advice would fall within the continuum. Legal advice may also be disseminated by an employee of a public body to other employees for their benefit. This chain of communications remains privileged.
EPS provides a detailed and useful framework for privacy professionals not only in the public sector, but also those working within private organizations where the principles of solicitor-client privilege will have equal applicability. Staff responsible for responding to access requests should be appropriately trained on the principles of privilege so this information can be adequately protected while fulfilling the public body or organizations duty to properly respond to an access request.