Iqaluit, Nunavut, October 17-18, 2017
Canada’s federal, provincial and territorial Information and Privacy Commissioners (IPCs) perform a vital oversight function by ensuring that public bodies comply with their obligations under access to information and privacy legislation. IPCs perform an important first level of independent review about the manner in which public bodies process requests for access to information.
The independent review function performed by each of Canada’s IPCs fundamentally depends on their ability to examine responsive records over which public bodies claim exemptions, including the exemption for solicitor-client privilege,1 in order to determine that such claims have been properly asserted.
In Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (University of Calgary), the Supreme Court of Canada recently determined that the legislative language used in Alberta’s Freedom of Information and Protection of Privacy Act (FOIP) did not express a sufficiently clear and unambiguous intention to empower the Alberta Commissioner to compel records for review when solicitor-client privilege is claimed over those records. The Supreme Court reached this conclusion despite language in FOIP authorizing the Alberta Commissioner to compel the production of records notwithstanding “any privilege of the law of evidence.”
IPCs are concerned there is considerable variation in the legislative language used to confer powers, including the power to compel the production of records, upon IPCs at the federal, provincial and territorial levels. Given this variability, Canada’s IPCs are concerned about the potential ramifications of the Supreme Court’s ruling in University of Calgary for the proper functioning of access to information and privacy legislation across the country.
Where there is any doubt about the adequacy of existing legislative language, Canada’s IPCs call upon the governments in such jurisdictions to amend their access to information and privacy legislation to express the unambiguous intention that the associated Commissioner is authorized to compel the production of records over which solicitor-client privilege is claimed in order to determine whether this exemption has been properly asserted.
1 In this resolution, the term “solicitor-client privilege” includes litigation privilege
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