Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 93-1996
March 19, 1996
INQUIRY RE: A decision by the Office of the Public Trustee to withhold a
legal opinion from an applicant
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. Introduction
As Information and Privacy Commissioner, I conducted an inquiry on December
22, 1995 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of a request by an applicant
for review of a decision by the Office of the Public Trustee of British
Columbia (the public body) to withhold a legal opinion under sections 13 and 14
of the Act. The applicant received a large number of records from the public
body; a three-page legal opinion was the only record withheld. Dated November
15, 1989, it was written by a senior solicitor for the province to the then
Deputy Attorney General. The current Deputy Minister of Attorney General has
refused to waive solicitor-client privilege in this case.
2. Issue
The issue in this inquiry is whether the Office of the Public Trustee properly
applied sections 13 and 14 of the Act to withhold the record in dispute. The
relevant portions of sections 13 and 14 are as follows:
13(1) The head of a public body may refuse to disclose to an applicant
information that would reveal advice or recommendations developed by or for a
public body or a minister.
...
14 The head of a public body may refuse to disclose to an applicant information
that is subject to solicitor client privilege.
In this inquiry, section 57(1) of the Act requires the Office of the Public
Trustee to prove that the applicant has no right of access to the legal
opinion.
3. The applicant's case
The applicant did not make any further submissions to this office beyond her
original request to the Office of the Public Trustee and her request for
review. She states that she is doing research for a novel about a particular
individual and has his permission to access information about him of any kind
held by the Office of the Public Trustee. I am referring to him in this
order as the third party.
4. The Office of the Public Trustee's case
The Office of the Public Trustee emphasizes that it has already disclosed a
very large volume of material to the applicant. I have discussed its points
about specific sections of the Act below.
5. Discussion
I regret that the applicant did not make a formal submission in this case,
because, as public bodies have pointed out to me in recent inquiries, knowing
why a person wants access and how he or she intends to use requested
information, can often help a public body in fashioning creative solutions when
they may be required to provide appropriate assistance.
The record in dispute
The legal opinion is actually in the form of a letter by a government
solicitor reporting on a several hour meeting between him, the solicitor for
the third party, and the third party himself. The solicitor spent almost all
of the time alone with the third party. Most of the record is a factual
recounting of what the third party said and what the solicitor had learned from
other sources. The third party was pressing for a government investigation of
how he had been treated by psychiatrists, a psychiatrist hospital, and perhaps
the Office of the Public Trustee. He was also complaining about deficiencies
in the Mental Health Act and the Patients Property Act. The
letter also contains a discussion of the legal options available to the third
party at various times in the previous several years.
I find little in the letter that would be clearly helpful to the applicant as
a novelist, since it is primarily a recounting of what the solicitor thought of
the situation in which the third party found himself. Since the third party is
still alive, one assumes that the applicant has already heard his side of this
story.
Section 13(1): The head of a public body may refuse to disclose to an
applicant information that would reveal advice or recommendations developed by
or for a public body or a minister.
The Office of the Public Trustee describes the record in dispute as "outlining
the circumstances and a series of projected actions that might be undertaken
depending upon the circumstances, and includes assessment and evaluation of the
options. The provision of access to this record would directly reveal that
advice and those recommendations." There are eight separate paragraphs in this
letter. Paragraphs four to eight are "information that would reveal advice or
recommendations developed by or for a public body or a minister." The author
gives his impressions of what he heard and what he has read, presents some
factual information about legal and statutory matters, and then poses questions
and offers judgments. There is a substantial discussion of the legal options
available to the third party.
I agree that paragraphs four to eight can be withheld in their entirety on the
basis of section 13(1).
Section 14: The head of a public body may refuse to disclose to an
applicant information that is subject to solicitor client privilege.
The Office of the Public Trustee relies on the following statements in the
British Columbia Information and Privacy Office's Freedom of Information
and Protection of Privacy Act Policy and Procedures Manual to
argue that the letter in dispute meets all of these criteria:
Section 14 applies to information in a record created or obtained for the
dominant purpose of obtaining legal advice for use in litigation or about
contemplated litigation. .... (p. 2.2-26)
Information is subject to solicitor client privilege if communication is:
confidential in nature; between a legal advisor and his or her client or agent;
and directly related to seeking, formulating or giving legal advice. (p.
2.2-26)
The Office of the Public Trustee makes clear that the third party "had serious
concerns about the declaration of incapacity that led to the Public Trustee
being appointed his Committee of Estate by certificate. He had indicated that
he was considering litigation against the Public Trustee, the Attorney General
and possibly the Ministry of Health. As a result, the Deputy Minister sought
legal advice in contemplation of this litigation, which was provided in the
letter at issue." This "background" knowledge does not appear in the contents
of the record in dispute, which in fact emphasize the options open to the
Attorney General's Ministry to help the third party.
During the inquiry process, I asked the Office of the Public Trustee for an
affidavit to establish the status of the record in dispute under section 14.
The resulting explanation is that the third party had "expressed considerable
unhappiness about the process by which he was declared incapable of managing
his affairs." He and his lawyer met with a solicitor representing the Ministry
of Attorney General, who then "reported to the Deputy Attorney General his
summary of the meeting and gave legal advice to the Ministry concerning the
issues raised at the meeting. A copy of this letter was made available to the
Public Trustee." (Affidavit of Alan Gordon Lindsay) I accept that such legal
advice can be withheld under section 14 of the Act.
6.
Order
I find that the Office of the Public Trustee is authorized to refuse access to
paragraphs four to eight of the record in dispute under section 13(1) of the
Act and is authorized to refuse access to the entire record under section 14.
Under section 58(2)(b), I confirm the decision of the Office of the Public
Trustee to refuse access to the record in dispute.
March 19, 1996
David H. Flaherty
Commissioner