Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 151-1997
February 14, 1997
INQUIRY RE: A Refusal by the Ministry of Finance and Corporate Relations to
provide access to correspondence with a Vancouver law firm
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 250-387-5629
Facsimile: 250-387-1696
Web Site: http://www.oipc.bc.ca
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry at the
Office of the Information and Privacy Commissioner (the Office) on December 27,
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 by the Ministry of Finance and Corporate Relations
(the Ministry) to apply section 14 of the Act to correspondence between the
Ministry and a named Vancouver law firm.
2. Documentation of the review and inquiry process
On May 6, 1996, the Ministry received the applicant's request for: (1) a copy
of the Vancouver School Board's "Self-Insured Comprehensive Liability Coverage"
policy document; and (2) copies of "every record of communications, including
letters, notes of telephone conversations, memos, minutes of meetings and notes
taken at meetings, between the Risk Management Branch and [a named Vancouver
law firm], from June 1995" to the date of the request. The Ministry
treated this request as two requests.
The Ministry responded to the request for item (2) on June 4, 1996 by denying
access to all records under section 14 of the Freedom of Information and
Protection of Privacy Act.. On June 7, 1996, in the case of item (1), the
Ministry responded by providing a severed copy of the record and told the
applicant that the remainder of the record had been withheld under sections 15
and 17 of the Act.
On July 1, 1996 the applicant requested a review of both of these decisions by
my Office. On September 10, 1996 the Ministry released some records from item
(2) and told the applicant that the rest of the records remained withheld under
sections 14 and 21 of the Act. The Ministry informed the applicant that this
was a new decision.
On September 11, 1996 the Ministry released a re-severed version of the
insurance policy record in item (1) and told the applicant that the remainder
was withheld under sections 15 and 17 of the Act. The Ministry informed the
applicant that this was a new decision. On September 23, 1996 the applicant
requested a review of the Ministry's decisions.
On November 25, 1996 the applicant requested me to hold an inquiry into the
public body's decisions on these two requests. On November 28, 1996 my Office
gave notice to the applicant and the Ministry of the written inquiry to be held
on December 20, 1996. The inquiry was later re-scheduled to December 27, 1996
after I granted the applicant's request for an extension to his deadline for
replying.
In early December 1996 the Ministry stated that it was withdrawing the
application of section 21 to the records in Item (2). A few days later, it
informed this Office that a one-page record in item (2) fell under
section 3(1)(c) of the Act and wastherefore excluded from its scope. On December 11,
1996 the Ministry released item (1) without the dollar amounts, in accordance
with an agreement between the applicant and the Risk Management Branch of the
Ministry. With this release, the item (1) record was no longer in dispute in
this inquiry.
3. Issue under review at the inquiry and the burden of proof
The issue under review is the Ministry's decision to apply section 14 of the
Act to correspondence between the Risk Management Branch and a named Vancouver
law firm from June 1995 to the date of the request, May 6, 1996, and to
apply section 3(1)(c) to one of these records.
Section 14 reads 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.
Section 3(1)(c) reads as follows:
Scope of this Act
3(1) This Act applies to all records in the custody or under the control of a
public body, including court administration records, but does not apply to the
following:
Under section 57(1) of the Act, the burden of proof for sections 3(1)(c) and
14 is on the Ministry in this inquiry. Thus, it is up to the Ministry to prove
that the applicant has no right of access to the records in dispute.
4. The records in dispute
The records in dispute include duplicate copies of a severed legal bill dated
April 12, 1996 from the law firm and approximately ten fully withheld
items of correspondence or fax cover sheets between the law firm and the Risk
Management Branch of the Ministry. They include a fax cover page which the
Ministry says is not within the scope of this inquiry.
5. The Ministry of Finance and Corporate Relations' case
The Ministry's submission canvassed the history and rationale for the
concept of solicitor-client privilege incorporated in section 14 of the Act. I
have not summarized this material here, because it is quite familiar from
previous Orders, some of them involving the same applicant. (See Order No. 107
-1996, May 29, 1996, pp. 4; Order No. 110-1996, June 5, 1996, pp. 8, 9)
(Submission of the Ministry, paragraphs 5.02-5.11)
I have reviewed below the Ministry's detailed submissions on the specific
records in dispute. (Submission of the Ministry, paragraphs 5.12 -5.22)
6. The applicant's case
The applicant submits that the correspondence between the Risk
Management Branch and the law firm should not be protected under section 14 of
the Act, because it was "used to shield the criminal activities and tortious
conduct" of the Vancouver School Board. The rest of his submission consists of
"new highly specific and direct evidence from the Ministry of Education
disclosing fraud on the part of the Vancouver School Board." (Submission of
the Applicant, pp. 1, 2) The applicant makes similar arguments about other
records withheld under section 14. (See Order No. 110-1996, pp. 4, 5;
Order No. 107-1996, pp. 3, 4)
7. Discussion
The records in dispute
The fax cover sheet
The Ministry sent a one-page fax cover sheet to my Office which it argues is
outside the scope of the review. The argument is that this one-page fax cover
sheet, internal to the Ministry of Finance, falls outside the scope of the
request, which was for access to every record of communication, including
letters, notes of telephone conversations, memos, minutes of meeting, and notes
taken at meetings, between the Risk Management Branch and a named Vancouver law
firm. I agree that the fax cover sheet is outside the scope of the request and
therefore outside the scope of this inquiry.
Correspondence between the law firm and Risk Management Branch
The Ministry submits that these records "are confidential communications
between solicitor and client for the purpose of obtaining legal advice. This
is precisely the type of information that s. 14 is designed to protect from
disclosure." (Submission of the Ministry, paragraph 5.13) Based on my
detailed review of the records, I agree with the Ministry.
The legal bill
The Ministry informs me that it has severed the legal bill from
the same law firm the same way as the bill in dispute in Order No. 107-1996, p.
4. It pointed out as well that I acted similarly with respect to section 14
legal materials in two other Orders involving the same applicant. (Order No. 110
-1996; and Order No. 134-1996, December 9, 1996) I agree with the
Ministry that the same rationale should apply to the legal bill in dispute in
this inquiry. (Submission of the Ministry, paragraphs 5.14-5.19)
The letter from the Vancouver School Board
The School Board sent a letter to the Risk Management Branch of the Ministry
for the purposes of obtaining legal advice in contemplation of litigation
brought by the applicant. (See Order No. 92-1996, March 15, 1996, pp. 2, 3;
and Order No. 110-1996, June 5, 1996, pp. 8, 9) (Submission of the Ministry,
paragraphs 5.20-5.22) I agree with the Ministry that the same scenario
exists in the present inquiry and that the result should be the same.
Application of section 3(1)(c):
One of the records in dispute is a one-page in camera submission made
to me in the context of Order No. 110-1196 involving the same applicant. I
agree with the Ministry that this is a record in my custody by virtue of the
exercise of my functions under the Act and thus suitably outside the scope of
the Act.. (Submission of the Ministry, paragraphs 5.23-5.25)
8.
Order
I find that the Ministry of Finance and Corporate Relations is authorized to
refuse access to the information in the records consisting of correspondence
between the law firm and Risk Management Branch, the legal bill, and the letter
from the Vancouver School Board under section 14 of the Act. I also find that
the remaining record in dispute is outside the scope of the Act by virtue of
section 3(1)(c). Under section 58(2)(b), I confirm the decision of the head of
the Ministry of Finance and Corporate Relations to refuse access to the
applicant. I also find that the fax cover sheet is outside the scope of this
inquiry.
February 14, 1997
David H. Flaherty
Commissioner