On September 7, 2023, the Newfoundland and Labrador Court of Appeal ruled that the Commissioner will no longer be able to demand to see certain records, which he needs access to review in order to ensure that the government and public bodies are being open and transparent as required by law. The Court’s decision concluded that the Access to Information and Protection of Privacy Act (ATIPPA, 2015) does not contain “sufficiently clear, explicit and unequivocal” language to allow the Information and Privacy Commissioner to require that public bodies provide him with records during an investigation of an access to information complaint where the public body has claimed that the records contain information protected by solicitor-client privilege. Today, Commissioner Michael Harvey is calling on the government to act quickly to fix this serious gap with a simple legislative amendment.

The ability of the Commissioner to demand to examine documents during an investigation that a public body claims are subject to solicitor client privilege – i.e. legal advice – is central to how the Office of the Information and Privacy Commissioner (OIPC) performs its independent oversight function. If the OIPC cannot examine the documents to ensure that the privilege applies, how can requesters have confidence in the access to information system? The OIPC will be unable to ensure that this exception is not abused and applied to documents that are not legal advice.

Without this ability, all a public body has to do to deny disclosure is claim the exception and, unlike for every other exception, including cabinet records, the OIPC cannot review these records to confirm their validity. Instead, a complainant’s only choice is to go to court – a lengthy and expensive process, compared to the free and time limited process that the OIPC was created to provide.

The Court of Appeal’s decision arose out of  a 2016 Supreme Court of Canada decision interpreting Alberta’s Freedom of Information and Protection of Privacy Act wherein it was determined that a certain specific clause of that Act, similar to our own, is not explicit enough to provide the Alberta Commissioner the ability to compel such documents. While we have argued that there is clear evidence of our legislature’s intent, and that our Act can be distinguished in other ways, the Court of Appeal found that the language used in our Act, as in Alberta’s, does not provide this authority.

While we are disappointed with the Court of Appeal’s decision, we respect it and will not seek leave to appeal to the Supreme Court of Canada. However, the decision results in a return to Bill 29, a situation where there is a gap at the core of the OIPC’s critical oversight function of the access to information system. There was a consensus in 2015 that this was unacceptable. Nothing is different now. Just as then, a legislative fix is required to ensure continued transparency and oversight within public bodies.

Fortunately, we know precisely how to achieve this. After the Supreme Court of Canada decision that led to this situation, the Government of Canada amended the federal Access to Information Act to clarify the federal Information Commissioner’s authority to compel production of those records. We now encourage the provincial government to follow the federal example, and make this simple but critical change to ATIPPA, 2015 as soon as possible.

The Centre for Law and Democracy, the Globe and Mail and others, have hailed ATIPPA, 2015 as one of the best, if not the best, access to information laws in Canada, and one of the better access to information laws worldwide. One reason for that status is the strong oversight mandate of the Commissioner, whose role involves ensuring that public bodies do not misuse the law when withholding information from applicants.

On May 25, 2023, during the last sitting day of the House of Assembly this spring, Minister John Hogan gave notice of his intention to introduce amendments to ATIPPA, 2015. Commissioner Harvey noted: “The timing couldn’t be better. Minister Hogan now has an opportunity to put ATIPPA, 2015 back on track by making sure that it contains the necessary clear, explicit, and unequivocal language to allow the OIPC to resume this important part of our mandate. Doing so will ensure that Newfoundland and Labrador remains a leader in Canada and in the world in providing its citizens with the level of transparency and accountability for which we have become known.”

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Media contact
Sean Murray
Director of Research and Quality Assurance
709-729-6309

Background:

The Commissioner’s authority to compel the production of records about which a public body has claimed the solicitor-client exception, in the context of an investigation for the purposes of determining the validity of the exception, has been the subject of controversy for many years. It was the subject of a legal dispute between the OIPC and the provincial government that ultimately led to a Court of Appeal decision in 2011 confirming that authority.

This authority was then a core focus of the controversy surrounding Bill 29 when, in 2012, the provincial government enacted amendments to, among other things, deny the Commissioner this authority.

In the 2014 Report of the ATIPPA review, chaired by former Premier and Chief Justice Clyde Wells, it was recommended that “[t]he Act have no restriction on the right of the Commissioner to require production of any record for which solicitor-client privilege has been claimed and the Commissioner considers relevant to an investigation of a complaint.” The Government of the day accepted that recommendation, and passed a bill containing wording consistent with the 2011 Court of Appeal ruling that was deemed to be sufficiently clear, explicit and unequivocal to ensure that the Commissioner would be able to access such records when conducting an access to information complaint investigation. That Bill became ATIPPA, 2015, the current access to information and privacy law.

The Minister of Justice at the time the Bill was introduced in the House also spoke to the Bill, and stated for the record that the language of the Bill was meant to ensure the Commissioner was entitled to review claims of solicitor-client privilege during investigation of a complaint.

Subsequent to ATIPPA, 2015 coming into force, a decision of the Supreme Court of Canada was issued (Alberta (Information and Privacy Commissioner) v. University of Calgary) in which the Court determined the specific language that was necessary in a statute in order to compel production of records subject to a claim of solicitor-client privilege. Even though the language in ATIPPA, 2015 was sufficient for that purpose when the law was passed, and ATIPPA, 2015 has more specific provisions than the law which was the subject of the University of Calgary decision, the Newfoundland and Labrador Court of Appeal found that the language in ATIPPA, 2015 was still not sufficiently clear, explicit and unequivocal, in light of its analysis of the Supreme Court of Canada decision.

Since ATIPPA, 2015 came into force on June 1, 2015, and until the current matter arose in May 2019, the Commissioner has always been able to review thousands of records claimed to be subject to solicitor-client privilege. In doing so, the Commissioner makes a determination as to whether the records were withheld appropriately in accordance with the law, or whether additional information should be disclosed to the access to information applicant.

When ATIPPA, 2015 was drafted and passed into law, its drafters (a committee chaired by former Premier and Chief Justice Clyde Wells), and the government of the day when introducing it in the House, made it explicitly clear that the provisions of the Act were intended to allow the Commissioner to be able to access records subject to a claim of solicitor-client privilege for the purpose of carrying out his mandate.