Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 208-1998
January 5, 1998
INQUIRY RE: A request for records in the custody or under the control of the
Law Society of British Columbia
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 July 22,
1997 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of a series of requests for
review of the application by the Law Society of British Columbia (the Law
Society) of sections 13, 14, 15, and 22 of the Act to various records relating
to two complaints filed against the applicant.
The original access request was initiated after a third party (a lawyer) laid
a complaint with the Law Society concerning the conduct of the applicant.
After the complaint was filed, the applicant sought access to the third party's
1992 and 1993 Annual Practice Declarations, which the Law Society refused to
disclose on the basis of section 22 of the Act. The applicant then sought
access to the Law Society's records regarding the complaint filed by the third
party against the applicant. The Law Society provided partial access but
withheld some records on the basis of sections 13, 14, 15, and 22 of the Act.
The third party then requested a review of the necessity of disclosing any
records to the applicant.
The applicant also sought access to records concerning a second complaint
filed against her by another third party. The Law Society again provided
partial access but withheld some records on the basis of sections 13, 14, 15,
and 22 of the Act.
The applicant has requested a review of the Law Society's decisions in
relation to all three of her requests. Since the applicant's request for a
review and the third party's request are related and raise substantially the
same issues, I propose to deal with them together.
2. Documentation of the inquiry process
On January 7, 1997 the applicant submitted a request to the Law Society for access to the third party lawyer's 1992 and 1993 Annual Practice Declarations.
In that application the applicant also requested answers to a series of
questions. Through the mediation process, the request was narrowed down to the
records. On January 8, 1997 the applicant submitted a request to the Law
Society for access to records concerning the complaints filed by both third
parties.
The Law Society refused access to the Annual Practice Declarations on the
basis of section 22 of the Act. The Law Society consulted with the third
parties concerning disclosure of the records contained in the complaint files.
On February 7, 1997 the Law Society disclosed a number of records that were not
subject to third party notice. On February 14, 1997 the Law Society disclosed
further records with some portions severed on the basis of section 22. Other
records were withheld on the basis of sections 13, 14, and 15.
On March 3, 1997 the applicant requested a review of all records that were
severed or withheld by the Law Society. On March 6, 1997 one of the third
parties filed a request for a review of the necessity to disclose any records
to the applicant. The parties agreed to extend the deadline for the inquiry
from June 2, 1997 to June 27, 1997. As a result of requests by the parties,
the inquiry was subsequently adjourned to July 22, 1997.
3. Issues under review and the burden of proof
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.
(2) The head of a public body must not refuse to disclose under
subsection (1)
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 law enforcement
15(1) The head of a public body may refuse to disclose information to an
applicant if the disclosure could reasonably be expected to
Disclosure harmful to personal privacy
22(1) The head of a public body must refuse to disclose personal information to
an applicant if the disclosure would be an unreasonable invasion of a third
party's personal privacy.
(2) In determining under subsection (1) or (3) whether a disclosure of personal
information constitutes an unreasonable invasion of a third party's personal
privacy, the head of a public body must consider all the relevant
circumstances, including whether
(3) A disclosure of personal information is presumed to be an
unreasonable invasion of a third party's personal privacy if
(4) A disclosure of personal information is not an unreasonable invasion of a
third party's personal privacy if
4. The records in dispute
The records in dispute are Annual Practice Declarations filed with the Law Society for two particular years and records contained in Law Society
files relating to complaints filed by the third parties against the applicant.
The complaint files include notes, memoranda, and opinion letters prepared by
lawyers who investigated the complaints on behalf of the Law Society.
5. The applicant's case
The applicant seeks access to records and personal information from
the Law Society concerning the third parties who filed complaints against her.
It is the applicant's contention that she requires access to this information
to respond to allegations made against her to the Law Society by the third
parties.
The applicant submits that the third parties have waived solicitor-client
privilege by filing complaints against her insofar as disclosure of the
information is necessary to enable her to respond to the allegations. (Reply
Submission of the Applicant, p. 1) She also submits that disclosure is
required for a fair determination of her rights under section 22(2)(c) of the
Act and that the failure to disclose the records raises issues of natural
justice.
6. The Law Society's case
Access to the third party lawyer's Annual Practice Declarations
The applicant relies primarily on section 22(2)(c) for the position that
disclosure of the information in the Annual Practice Declarations is relevant
and necessary in order to reach a fair determination of her rights. She
asserts that the "issue of full disclosure overrides any claim [by the third
party] for privacy when he instituted a complaint against the applicant."
The Law Society Rules, Part 9, provide that Annual Practice Declarations must
be filed in the required form each year by practicing lawyers. The form
includes personal information concerning the member which is supplied in
confidence to the Law Society. (Submission of the Law Society, paragraphs 2
and 3) The Law Society submits that disclosure of these records would
constitute an unreasonable invasion of the third party's privacy because they
contain personal information relating to "employment, occupational or
educational history" and financial history or activities under
sections 22(3)(d) and (f). The Law Society further submits that the applicant has not
met her burden of proof under section 22 of the Act. (Reply Submission of the
Law Society, p. 1) Based on my review of the records and the applicant's
submissions in this inquiry, I agree with the Law Society.
The applicant put forward a natural justice argument for disclosing the
disputed personal information to her, which the Law Society went to
considerable lengths to oppose. (Reply Submission of the Law Society,
paragraphs 6 to 8) Section 22(2) of the Act outlines relevant circumstances
that I am required to consider in making a determination on the basis of
section 22(1). I have had regard to the applicant's argument that disclosure
of this information is relevant to a fair determination of her rights but that
consideration is, in my view, outweighed in this case by the nature of the
information (falling as it does under sections 22(3)(d) and (f)) and the third
party's opposition to disclosure. Ensuring a fair determination of one's
rights is a component of natural justice; however, if the complaint to the Law
Society results in disciplinary action, the applicant will have the right to
know the case being made against her by the Law Society and will obtain access
to all of the evidence that the Law Society intends to rely upon at that
time.
The applicant also argues that the information must be disclosed because the
third parties waived solicitor-client privilege by filing complaints against
her. The applicant's argument misconceives the nature of the privilege being
claimed. It is not the third parties who are seeking to invoke
solicitor-client privilege but rather the Law Society, which is claiming
privilege as a client with respect to communications with its solicitors who
investigated the complaint. Communications between the Law Society and its
legal counsel during the course of an investigation of a complaint are
privileged. I agree with the Law Society that in "light of that privilege, the
Law Society cannot be compelled to disclose the requested information pursuant
to a request under the Act." (See Order No. 169-1997, June 11, 1997)
Having regard to all of the material submitted, I conclude that the applicant
has failed to discharge the burden of establishing that disclosure of the third
party lawyer's 1992 and 1993 Annual Practice Declarations would not constitute
an unreasonable invasion of the third party's personal privacy.
Access to records concerning the complaints filed by the third
parties
The Law Society provided partial access to the records contained in the complaint files but severed and withheld certain records on the basis of
sections 13, 14, 15, and 22 of the Act.
The Law Society asserts that section 14 affords a complete answer to the
entire application with the exception of one record (Document No. 1). Based on
my review of the records in dispute, I accept that section 14 protects the
records from disclosure to the applicant. I have addressed above the
applicant's submissions regarding the waiver of solicitor-client privilege.
In addition, the Law Society contends that section 15(1)(a) applies because
the result of its investigations could lead to disciplinary proceedings against
the applicant in which she could be exposed to a penalty or sanction under the
Legal Profession Act or the Law Society Rules. In Order No. 163-1997,
May 14, 1997, I accepted that section 15(1)(a) applies to a Law Society
investigation, because an investigation of this nature could lead to a penalty
or sanction being imposed. I accept that section 15(1)(a) applies in this
case.
Finally, the Law Society submits that any recommendations made by lawyers in
this matter to the Law Society are protected from disclosure under section 13
of the Act. In view of my conclusions regarding section 14 of the Act, it is
not necessary to address the application of section 13. The recommendations
are privileged information under section 14 of the Act.
The Law Society has severed a small amount of information from Document No. 1
on the basis of section 22(1) of the Act. Since the Law Society's submissions
in relation to Document No. 1 were provided in camera with respect to
the third party lawyer, I cannot outline the details of its submission. I am
satisfied, however, based on my review of the Law Society's submissions and the
record itself, that the information was properly withheld on the basis of
section 22(1).
I have addressed above the applicant's argument concerning the need for
disclosure to reach a fair determination of her rights under section 22(2)(c)
and her arguments concerning solicitor-client privilege and natural justice.
The same considerations apply in relation to the records severed or withheld
from the complaint files.
I conclude that the Law Society has discharged its burden of proving that the
applicant has no right of access to the records or portions thereof which were
severed and withheld on the basis of sections 14 and 15. I further conclude
that the applicant has failed to discharge her burden of proving that
disclosure of records severed or withheld on the basis of section 22(1) would
not constitute an unreasonable invasion of a third party's personal privacy.
Review of the necessity for disclosing records to the applicant
The final issue relates to the third party lawyer's request for a
review of the necessity for disclosing any records to the applicant. The third
party provided a letter to the Law Society in which he outlined the nature of
his association with the applicant and the events which led up to the filing of
the complaint. The third party expressed concern that disclosure of this
information to the applicant could impair his ability to carry on practicing
law. The third party indicated, however, that he would consider consenting to
disclosure if he was provided with the identity of the person making the
requests, the purpose for such requests, and immunity from liability.
I agree with the Law Society's submission that disclosure of records which
have already been reviewed by the applicant, that relate to matters within the
knowledge of the applicant, or relate to matters of an administrative nature,
would not constitute an unreasonable invasion of the personal privacy of the
third party on the facts of this case. The third party did not provide any
submissions to counter this position.
Based on my review of the material which has been severed and disclosed, I am
satisfied that the Law Society properly applied section 22 to the records in
dispute.
9.
Order
I find that the Law Society of British Columbia was authorized under
sections 14 and 15 of the Act to refuse access to the records withheld from the
applicant under those sections. Under section 58(2)(b) of the Act, I confirm
the decision of the Law Society of British Columbia to refuse access to the
records severed or withheld on the basis of sections 14 and 15.
I also find that the Law Society of British Columbia was required under
section 22 to refuse access to the records withheld from the applicant under
section 22. Under section 58(2)(c) of the Act, I require the Law Society of
British Columbia to refuse access to the records severed or withheld on the
basis of section 22.
With respect to the third party, I also find that the Law Society of British
Columbia was not required to withhold certain records from the applicant under
section 22(1) of the Act. Under section 58(2)(a) of the Act, I require the Law
Society of British Columbia to disclose those certain records to the
applicant.
January 5, 1998
David H. Flaherty
Commissioner