Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 119-1996
August 29, 1996
INQUIRY RE: A request for records that the Ministry of Social Services
provided to the Ministry of Attorney General for purposes of litigation
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 June 24, 1996 under
section 56 of the Freedom of Information and Protection of Privacy Act
(the Act). This inquiry arose out of a request by the applicant for records
that the Ministry of Social Services had provided to the Ministry of Attorney
General for use in civil litigation proceedings.
2. Documentation of the inquiry process
On November 19, 1995 in a letter addressed to the Honourable Ujjal Dosanjh,
Attorney General, and the Honourable Joy MacPhail, then Minister of Social
Services, the applicant requested that the two Ministries provide him with a
list of all records that the Ministry of Social Services had sent to the
Ministry of Attorney General.
On December 21, 1995 the Ministry of Attorney General responded by stating
that such a list did not exist. On December 22, 1995 the Ministry of Social
Services informed the applicant that access to the requested material had been
provided through the court process and that any other material would be subject
to solicitor-client privilege.
On January 3, 1996 the applicant requested the Ministry of Attorney General to
disclose records provided by the Ministry of Social Services to the Ministry of
Attorney General in relation to civil actions brought by the applicant against
the Ministry of Social Services. In his request for review, the applicant
indicated that the Ministry of Attorney General could either create a list or
provide him with copies of the records it had received from the Ministry of
Social Services. On February 15, 1996 the Ministry of Attorney General
responded to the applicant by withholding all records under section 14 of the
Act (solicitor-client privilege).
On March 25, 1996 the applicant wrote this Office and requested a review of
the Ministry of Attorney General's response to his request.
3. Issue under review at the inquiry
The applicant raised two issues in his request for review:
(1) the requirement of public bodies to create lists of records where no list
exists at the time of the request for records.
(2) the application of section 14 (solicitor-client privilege) to records that
relate to on-going civil litigation proceedings.
Issue number one was considered and disposed of in Order No. 105-1996, May 27,
1996, pp. 3, 4.
The only issue under review in this inquiry is issue number two. Section 14
reads as follows:
14. The head of a public body may refuse to disclose to an applicant
information that is subject to solicitor client privilege.
4. The burden of proof
Section 57 of the Act establishes the burden of proof on the parties in this
inquiry. Under that section, where access to information in the records has
been refused, it is up to the public body to prove that the applicant has no
right of access to the records or part of the records. In this inquiry, the
Ministry of Attorney General has the obligation to prove why this applicant has
no right of access to the records in dispute.
5. The Ministry of Attorney General's case
The Ministry emphasizes, as it did in Order No. 105-1996, that it
received documents from the Ministry of Social Services to defend court actions
commenced by the applicant against the Ministry of Social Services.
(Submission of the Ministry, paragraph 2.4) The records in dispute consist of
over three vertical feet of material assembled to defend four judicial reviews
and other Supreme Court actions commenced by the applicant. (Submission of the
Ministry, paragraphs 4.1, 5.4-5.7)
I have discussed below the Ministry's submissions on the application of
section 14.
6. The applicant's case
The applicant's submission to me stated that I am biased against him
and that I should not be involved in reviews involving him. He claims that my
forms of "illegal procedure" against him allegedly include filing four false
affidavits, lying before a judge through legal counsel, being in collusion with
two Ministers of the Crown, and violating his Charter rights.
7. Discussion
This inquiry concerns the same applicant and the same records as were dealt
with in Order No. 105-1996, May 27, 1996.
I agree with the Ministry that the applicant should also be applying under the
Supreme Court Rules to obtain the documents he wants. (Submission of the
Ministry, paragraphs 4.2, 5.23-5.25, 5.8-5.11) (See Order No. 2-1994,
February 7, 1994 p. 2; Order No. 105-1996, p. 3) However, I do not accept
its premise that having rights under the Supreme Court Rules should preclude an
applicant from also making a request under the Act. These are separate
processes which can be pursued simultaneously.
Section 14: Legal Advice
The Ministry's position is quite simple:
It is the Public Body's submission that all communications, verbal or written,
of a confidential character between a client and a legal adviser directly
related to the seeking, formulating or giving of legal advice or legal
assistance (including the legal adviser's working papers, directly related
thereto) are privileged. (Submission of the Ministry, paragraph 5.12, and
paragraphs 5.13-5.21 passim)
Although I have reviewed the applicant's submission, I have found nothing in
it addressing the application of section 14 in this particular inquiry.
In the circumstances of this case, I agree with the position of the Ministry
that all of the records in dispute are currently protected from disclosure
under section 14, because they were assembled for purposes of defending
litigation brought by the applicant against the Ministry of Social Services,
and because of the uncertainty of the nature of this litigation. (See
Submission of the Ministry, Affidavit of Betty Down, Exhibit A) (See also
Order No. 110-1996, June 5, 1996, pp. 8, 9; and Order No. 92-1996, March
15, 1996 pp. 2, 3) However, counsel for the Ministry will have an opportunity
under the Rules of Court to prepare a list of documents over which privilege is
actually being claimed in this case.
8.
Order
In respect of the records requested by the applicant, I find that the Ministry
of Attorney General was authorized to refuse access under section 14 of the
Act. Under section 58(2)(b), I confirm the decision of the head of the
Ministry to refuse access.
August 29, 1996
David H. Flaherty
Commissioner