Wednesday, February 17, 2010

Newfoundland court concludes Information and Privacy Commissioner may not review privilege claims

The Supreme Court of Newfoundland has released what I think is a very important decision under that province's access to information legislation. The dispute in Newfoundland and Labrador (Attorney General) v. Newfoundland and Labrador (Information and Privacy Commissioner), 2010 NLTD 31 (not yet on CanLII) centered around whether the Information and Privacy Commissioner has the authority to request and review documents that were alleged to be subject to solicitor-client privilege.

The relevant portion of the Act on which the Commissioner was relying provides:

52. (1) The commissioner has the powers, privileges and immunities that are or may be conferred on a commissioner under the Public Inquiries Act.

(2) The commissioner may require any record in the custody or under the control of a public body that the commissioner considers relevant to an investigation to be produced to the commissioner and may examine information in a record, including personal information.

(3) The head of a public body shall produce to the commissioner within 14 days a record or copy of a record required under this section, notwithstanding another Act or regulations or a privilege under the law of evidence.

The Court concluded that solicitor-client privilege, though it may have started as a rule of evidence, is a substantive right that it not interfered with by Section 52(1). This is consistent with Privacy Commissioner of Canada v. Blood Tribe Department of Health, 2008 SCC 44 (S.C.C.).

Justice Marshall wrote:

[90] Section 52(3) of the ATIPPA does not oblige the DOJ to provide the Commissioner with solicitor-client records. The language of section 52(3) does not capture solicitor-client privileged documents. Similarly, section 52(2) does not give the Commissioner power to demand solicitor-client records. The open-textured language of section 52(2) is to be read as not including solicitor-client documents (Blood Tribe). Similarly, a restrictive interpretation of section 52(3) dictates that describing privilege solely as a rule of evidence is not broad enough to capture solicitor-client privilege. While this finding is based on a restrictive interpretation, it is also consistent with the objects of the ATIPPA. The “mischief” has been remedied by the legislature which has given the Commissioner the power of review; but not the power to violate solicitor-client privilege which is a “fundamental civil and legal right”.

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