Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 188-1997
August 22, 1997
INQUIRY RE: A decision by the Workers' Compensation Board (WCB) to deny
access to Ombudsman records, the WCB's solicitor-client records, and other
records related to a worker's claim
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 June 18,
1997 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
an applicant for all records related to his claim with the Workers'
Compensation Board (WCB).
2. Documentation of the inquiry process
On December 31, 1996 the Workers' Compensation Board received the applicant's
request for "full and complete disclosure of any and all information" about his
claim as held by the WCB. On February 19, 1997 the WCB disclosed a number of
records in full. It also told the applicant that several other records were
being severed, withheld in their entirety, or excluded from disclosure under
sections 3(1)(c), 13(1), 14, and 22(1) of the Act. The WCB also explained to
the applicant that section 3(1)(c) excluded correspondence between the WCB and
the Office of the Ombudsman from the scope of the Act.
In mid-March 1997 my Office received the applicant's request for a review of
the WCB's decision. During the review period, the applicant decided not to
pursue the information withheld under section 22(1) of the Act. On May 26,
1997 the WCB disclosed most of the information it had withheld under
section 13(1). On May 27, 1997 the Office notified the WCB, the applicant, and the
Office of the Ombudsman that a written inquiry would take place on June 18,
1997. The WCB disclosed further records to the applicant on July 2,
1997.
3. Issues under review and the burden of proof
This inquiry examines the WCB's application of sections 13(1) and 14 of the
Act to a series of records from the applicant's WCB claim file. In addition,
it concerns the application of section 3(1)(c) to correspondence between the
WCB and the Office of the Ombudsman. These sections read 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:
Policy advice or recommendations
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.
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 57 of the Act, which establishes the burden of proof on the parties in
an inquiry, is silent with respect to a request for review about the
application of section 3 to records in the custody or under the control of a
public body. In Order No. 170-1997, June 12, 1997, I decided that since the
public body, in this case the Workers' Compensation Board, is asserting that
section 3 applies in these circumstances, it has the burden of proof.
Under section 57(1), where access to information in the records has been
refused under section 13 or 14, it is up to the WCB to prove that the applicant
has no right of access to the records or parts of the records.
4. The records in dispute
The records in dispute consist of:
5. The applicant's case
The applicant made an in camera submission. Most of it had
nothing directly to do with this inquiry under the Act.
6. The WCB's case
The WCB made its submissions to me on an in camera basis,
because to do otherwise would disclose the substance of the records in dispute
to the applicant.
7. The Ombudsman's case
The Ombudsman reviewed her statutory responsibilities as an Officer of
the Legislature and the importance of confidentiality in the conduct of that
work. In her view, it is desirable to give "a broad and purposive
interpretation" to section 3(1)(c) of the Act "to respect both the independence
and autonomy of the Ombudsman, and to facilitate her working according to the
terms of her statute." (Submission of the Ombudsman, paragraph 7) It is the
Ombudsman's view that public bodies must be allowed "to have in-house
discussions regarding work done by the public body in the course of an
Ombudsman investigation, to respond candidly to Ombudsman inquiries, and to
keep records regarding Ombudsman investigations without concern that those
records may subsequently be the subject of an access to information request."
(Submission of the Ombudsman, paragraph 10)
It is the Ombudsman's position that records numbered 1 through 163 in the
present inquiry are excluded from disclosure on the basis of section 3(1)(c) of
the Act.
8. Discussion
Almost all of the submissions in this inquiry were made on an in
camera basis, which severely restricts my ability to render an Order that
will be intelligible to readers other than, to a limited extent, the applicant
and the other parties. None of the parties submitted a reply
submission.
I have reviewed all of the records in dispute in this inquiry. I confirm that the records of interactions between the WCB and the Ombudsman are properly excluded from disclosure on the basis of section 3(1)(c) of the Act.
In Order No. 170-1997, I considered the application of section 3(1)(c) of the
Act to records relating to the Ombudsman. The following quotation from page 5
of that Order is relevant to the present inquiry:
This section provides that the Act does not apply to the records of an Officer
of the Legislature that relate to the exercise of that Officer's functions
under an appropriate statute. In this inquiry, records of both the Ombudsman
and my Office are at issue. The legislative intent is to protect the
investigative and quasi-judicial core functions of an Independent Officer of
the Legislature. (Submission of ICBC, paragraphs 16, 18; and Order No.
152-1997, March 4, 1997) In this regard, I agree with the submission of ICBC
that `regardless of who has the custody or control of a record created by an
officer of the legislature, s. 3(1)(c) applies so long as the record was
created by that officer,' or, I would add, a member of his or her staff.
(Submission of ICBC, paragraph 20) I further accept that it is `appropriate to
interpret the term "custody" to include constructive possession and not just
actual possession of a record'....
I have reviewed a very small number of internal WCB records that are being
withheld on the basis of section 13(1) of the Act and confirm that this is an
appropriate basis for doing so.
I have reviewed a number of internal WCB records that are being withheld on
the basis of section 14 of the Act and confirm that they are subject to
solicitor-client privilege.
I therefore find that the WCB has discharged its burden of proof with respect
to the application of sections 3(1)(c), 13, and 14 of the Act to the records
under review.
9.
Order
I find that the Workers' Compensation Board has properly applied
section 3(1)(c) of the Act and is authorized to refuse access to the records withheld
under that section. Under section 58(2)(b), I confirm the decision of the
Workers' Compensation Board to refuse access.
I also find that the Workers' Compensation Board was authorized to refuse
access to information in the records in dispute under sections 13 and 14.
Under section 58(2)(b), I confirm the decision of the Workers' Compensation
Board to refuse access.
August 22, 1997
David H. Flaherty
Commissioner