Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 107-1996
May 29, 1996
INQUIRY RE: A request for access to a lawyer's bill paid by the Risk
Management Branch of the Ministry of Finance and Corporate Relations
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
Web Site: http://www.cafe.net/gvc/foi
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry at the
Office of the Information and Privacy Commissioner on April 19, 1996 under
section 56 of the Freedom of Information and Protection of Privacy Act
(the Act). This inquiry arose out of a request for review by the applicant of
a decision of the Ministry of Finance and Corporate Relations to withhold some
information contained in a lawyer's bill paid by the Risk Management Branch of
the Ministry of Finance.
2. Documentation of the inquiry process
The applicant requested a copy of a record revealing lawyer's fees for a
certain matter. He sought the total legal costs incurred by the Ministry as
liability insurer of the Vancouver School Board in connection with a particular
claim against it by the applicant. The Ministry provided a copy of a bill from
the relevant law firm with some information severed under sections 14 and 21 of
the Act. The applicant asked for a review of that decision.
3. Issues under review at the inquiry and the burden of proof
The relevant parts of sections 14 and 21 of the Act are as follows:
Legal advice
14 The head of a public body may refuse to disclose to an applicant information
that is subject to solicitor client privilege.
Disclosure harmful to business interests of a third party
21(1) The head of a public body must refuse to disclose to an applicant
information
(b) that is supplied, implicitly or explicitly, in confidence, and
(c) the disclosure of which could reasonably be expected to
Section 57 of the Act establishes the burden of proof. Under that
section, where access to information in a record is refused, it is up to the public body
to prove that the applicant has no right of access to the record or part of the
record. Thus in this inquiry the burden of proof is on the Ministry of Finance
and Corporate Relations.
4. The record in dispute
The actual record in dispute is a three-page bill from a Vancouver law firm
for professional services rendered to the Schools Protection Program of the
Risk Management Branch of the Ministry of Finance and Corporate Relations. The
applicant asked for a copy of "the record containing the current total of the
legal costs incurred" in a certain matter in which he was the potential source
of the liability for which the legal services were sought. The severed record
provided to the applicant reveals the date of each service as well as the total
dollar amount of the bill, including disbursements. It does not disclose the
name of the lawyers who provided the services, nor the duration in minutes and
the nature of the service rendered. The Ministry has also severed the address
of the client and the client file number and matter number. (See Submission of
the Ministry, paragraph 5.7)
5. The Ministry of Finance and Corporate Relations' case
The Ministry emphasizes that it retained the law firm in question directly and
has a solicitor-client privilege with it: "The legal bill is the result of the
solicitor-client relationship." (Submission of the Ministry, paragraphs 4.2,
5.3) The applicant requested the total legal costs in question and has
received that information. (Submission of the Ministry, paragraphs 5.3 and
5.4)
I have discussed below, as appropriate, the Ministry's submissions on
particular sections of the Act.
6. The applicant's case
The applicant argues that the severed record in dispute is not covered by
solicitor-client privilege. He also believes that a lawyer acting for the
Ministry carried out work for certain employees of the Vancouver School Board
that he was not hired to do, which "raises the issue of fraud." The applicant
charges that non-disclosure in this case is "in furtherance of a criminal
enterprise" and comprises "fraudulent and criminal conduct...." (Submission of
the Applicant, paragraphs 3-6, 23)
The applicant is of the view that the Ministry has failed to meet its burden
of proof under sections 14 and 21 of the Act. I have discussed his detailed
submissions below as I found it appropriate to do so.
7. Discussion
For purposes of establishing a context for this inquiry, it is useful to note
that the applicant is concerned about the activities of a lawyer acting for the
Ministry and that the applicant has filed a "complaint alleging harassment,
victimization, slander and racial discrimination against four staff members of
the Carnegie Learning Centre.... " (Submission of the Applicant, p. 13)
The applicant has also raised some very serious allegations about criminal
behaviour by the Vancouver School Board and the Ministry. While his concern
about the appropriate expenditure of taxpayer funds may be admirable, this is
not a matter for me to determine under the Act but for the police, who may
obtain access to any information they need for law enforcement purposes.
Moreover, the provisions of the Act cannot be used solely to produce evidence
of alleged criminal behaviour simply because an applicant suspects that such
may have occurred. Such a concerned individual would have to persuade
responsible Ministry officials to conduct their own investigations of his or
her allegations and/or persuade the police to investigate. In this case, the
Ministry has certainly become aware of the charges of the applicant and is free
to investigate them further.
The applicant made the following statement ostensibly in support of his
argument that the Ministry cannot rely on section 21 of the Act:
It is not a secret that some lawyers charge for work that was not actually
done; some recreate a diary from memory; some lawyers bill for billing; some do
not add correctly, and so on. Disclosure of the severed information is
desirable in this case for the purpose of subjecting the activities of the
Ministry as liability insurer of public bodies to meaningful scrutiny.
(Submission of the Applicant, paragraph 28)
However public-spirited the applicant may be, it is the obligation of public
bodies to audit bills received from consultants and lawyers for
appropriateness. With respect to provincial public bodies, such as the
Ministry, the Comptroller General and the Auditor General have additional
oversight responsibilities on behalf of the government and the Legislature
respectively. (See Order No. 64-1995, November 21, 1995, p. 10)
The Ministry states that the various allegations made by the applicant are
spurious, completely unfounded, unsubstantiated, false, and malicious: "In
response to the whole of the Submission by the Applicant, the Public Body
responds that the Submission is filled with assumptions, false allegation, and
completely unfounded malicious attacks on both the Vancouver School Board, the
law firm in Vancouver, and the Public Body itself." (Reply Submission of the
Ministry, paragraphs 1, 2, 10)
Section 14: The head of a public body may refuse to disclose to an
applicant information that is subject to solicitor client privilege
The Ministry believes that the entire record could have been protected under
this section, but it "acted in the spirit and intent of the Act and has
released the information that was specifically requested." (Submission of the
Ministry, paragraph 5.6) In support of its position, the Ministry relied on
the language of my Order No. 61-1995, November 1, 1995, pp. 5, 6 and the cases
cited therein in order to protect a description of services rendered to a
client from disclosure. (Submission of the Ministry, paragraphs 5.8-5.12) The
Ministry further argued that the decision of Mr. Justice Thackray in The
Minister of Environment, Lands and Parks et al v. The Information and
Privacy Commissioner (December 12, 1995, unreported decision of the Supreme
Court of British Columbia, Vancouver Registry No. A943843) "is in fact binding
in this matter and is directly relevant." (Submission of the Ministry,
paragraphs 5.9-5.16)
The applicant has sought to argue that the Ministry is not the client of the
law firm, which in fact represents the Vancouver School Board in defending
against allegedly defamatory remarks made by two persons associated with it
that were published in two newspapers. (Submission of the Applicant,
paragraphs 13, 14, 16) In his view, the role of the Ministry is as an agent or
benefactor, not a client. The Ministry's response, which I accept, is that
even if the relationship were one of agency, a solicitor and client
relationship still prevails. (Reply Submission of the Ministry, paragraph 5)
The applicant also submits that he is "seeking to displace solicitor-client
privilege on the fraud/crime/tort exception."
In the case at hand there is ample evidence that the Vancouver School Board
acted criminally, fraudulently and tortuously. [The lawyer for] the law firm
of [name of law firm], among other things, aided and abetted a cover up that
prevented justice and fairness being done in addition to billing the Ministry
of Finance for work which was not authorized. (Submission of the Applicant,
pp. 16-20)
The applicant added further specifics of alleged fraudulent and criminal
conduct in connection with the operation of the Carnegie Learning Centre. As
noted above at the beginning of this discussion, I find nothing in these
allegations that would justify the kind of exception to solicitor-client
privilege advanced by the applicant. The cases cited by the applicant are
irrelevant to the scenario he has advanced in this inquiry.
I agree with the Ministry, on the basis of Order No. 61-1995, that the
description of legal services rendered to a client in a legal bill is subject
to solicitor-client privilege and thus protected from disclosure under
section 14 of the Act.
Section 21: Disclosure harmful to business interests of a third party
The Ministry has sought to argue that some of the information severed from the
record in dispute is confidential business information of the law firm, which
meets the three-part test set out in this section. (See Submission of the
Ministry, paragraphs. 5.23-5.28)
Since I agree with the Ministry that "this inquiry turns primarily on the
application of section 14" and that "the stronger, more applicable argument is
section 14," I see no reason to address any of the section 21 arguments
advanced by either party in the context of this case. (Submission of the
Applicant, pp. 11-15)
Post-inquiry submissions
After the completion of this inquiry in terms of submissions received, the
applicant continued to send materials to my Office. Six late submissions were
received in connection with this and another inquiry. At my direction, my
Office subsequently informed the applicant that he should stop sending them and
that additional ones would not be accepted. The Ministry received notice of
what was occurring and objected strenuously to the receipt of more submissions
as contrary to the policies and procedures established by my Office.
I agree with the Ministry that submissions should not be accepted after the
close of an inquiry, except perhaps in extraordinary circumstances. The
Legislature has provided direction that matters under review should be dealt
with quickly. The Act requires that reviews under Part 5 be resolved, either
by settlement or by an inquiry, within ninety days after receiving the request
for review. Thus I discourage any re-opening of inquiries after this period of
time, unless all parties consent and the circumstances are extraordinary
enough to justify such an extension. In this case, the applicant wished to
submit a rebuttal to the Ministry's reply submission, and he also wished to
bring to my attention other documents which "recently became available."
I have reviewed the late materials submitted by the applicant. Under my
Office's policies and procedures, there is no right to make rebuttal arguments
to a reply. The documents he says have recently become available are not, in
my view, central to the issues raised in this inquiry. Thus I have not relied
on these late materials in reaching a decision in this inquiry, because I
decided they were not relevant.
8.
Order
I find that the Ministry of Finance and Corporate Relations was authorized to
refuse access to the information in the record in dispute under section 14 of
the Act. Under section 58(2)(b), I confirm the decision of the head of the
Ministry to refuse to give the applicant access to the record.
May 29, 1996
David H. Flaherty
Commissioner