Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 129-1996
November 8, 1996
INQUIRY RE: A decision of the Vancouver Police Board to withhold records
from an applicant relating to a proceeding under the Police Act
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 250-387-5629
Facsimile: 250-387-1696
Web Site: http://www.cafe.net/gvc/foi
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 August 16,
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 of a
decision of the Vancouver Police Board (the public body) to exclude and
withhold records in response to the applicant's request.
2. Documentation of the review process
On April 26, 1996 the applicant requested "a copy of every record...in respect
of my section 58 [of the Police Act] review" and a copy of the billing
record of the Police Board's lawyer in respect of his work on the applicant's
case.
The Police Board located 123 pages of records that responded to the
applicant's request. It disclosed some records to the applicant on May 24,
1996. It excluded 5 pages of records under section 3(1)(b) of the Act because
they fell within an excluded category of records: "a personal note,
communication or draft decision of a person who is acting in a judicial or
quasi-judicial capacity."
The Police Board withheld or severed 12 pages of records under section 14
(solicitor-client privilege), and transferred 6 pages of records under
section 11 of the Act to the British Columbia Police Commission within the time limits
permitted by the Act. The Police Board advised the applicant that no records
existed in respect of the request for billing records of the lawyer. The
Police Board withheld about 60 pages of the responsive records because they had
been "provided to [the applicant] in our responses to previous FOI
requests...."
On May 30, 1996 the Office of the Information and Privacy Commissioner received the applicant's request for review of the Police Board's decisions.
3. Issue under review at the inquiry and the burden of proof
The specific issues to be reviewed in this inquiry is the Police Board's
application of section 3(1)(b) to exclude records from coverage by the Act and
section 14 to withhold and sever records.
The relevant sections are as follows:
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:
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 establishes the burden of proof on the parties in this
inquiry. Under section 57(1), where access to information in a record has been
refused, it is up to the public body to prove that the applicant has no right
of access to the record or part of the record. In this case, it is up to the
Vancouver Police Board to prove that the applicant has no right of access to
the records excluded under section 3(1)(b) and withheld or severed under
section 14 of the Act.
4. The records in dispute
The records material to this inquiry arise from the deliberations of a
Review Panel constituted pursuant to section 58 of the Police Act,
S.B.C., 1988, c. 53 with respect to a complaint made by the applicant (under
that section) about a member of the Vancouver Police Department. Members of
the Review Panel are also members of the Vancouver Police Board. Where a Chief
Constable, who is the disciplinary authority, has refused to investigate a
complaint, the Review Panel may review whether this exercise of discretion was
proper.
I have reviewed further below the submission of both the Police Board and the
applicant on specific sections of the Act.
5. Discussion
The applicant made submissions on sections 16(1)(b) and 22 of the Act.
I agree with the Police Board that, as stated in the Notice of Inquiry, these
sections are not at issue in this inquiry. Similarly, the withholding of
duplicate records and the transfer of the original request in part to another
public body are not issues currently before me. Finally, the applicant raised
a number of other issues that are well beyond my authority as the
decision-maker under the Act. (Submission of the Applicant, pp. 2, 3, 23)
The applicant has provided me with the details of how he came to file a
complaint against a member of the Vancouver Police Department, one that the
Chief Constable subsequently dismissed as frivolous. He also informed me in
detail about subsequent developments, which he is planning to present at a
public inquiry. I am of the view that none of this is relevant to the
disposition of the issues in this inquiry under the Act. In particular, I have
no jurisdiction to review the proper application of the Police Act.
(Submission of the Applicant, pp. 5-8, 9-12, and in camera
submissions)
Section 3(1)(b): 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:
(b) a personal note, communication or draft decision of a person who is
acting in a judicial or quasi judicial capacity;
The Vancouver Police Board's argument in the present case is that the work of
the Review Panel constitutes acting in a quasi-judicial capacity and that
certain of its records in dispute in this case are thus outside of the scope of
the Act on the basis of section 3(1)(b). (Submission of the Vancouver
Police Board, paragraphs 12-22; Affidavit of Beth Nielsen, paragraph 13) The
applicant denies that the Review Panel was acting in a quasi-judicial capacity
with respect to his complaint. (Submission of the Applicant, paragraph
7.21-7.22 and p. 12)
The Police Board organized the records in dispute in two exhibits, which I
accepted on an in camera basis. The first comprises five pages excluded
under section 3(1)(b). Based on my review of these materials, I find that
they are communications or draft decisions of persons acting in a
quasi-judicial capacity.
Section 14: solicitor client privilege
The Police Board submits that certain of the records in dispute concern
confidential communications between the Police Board's members and employees
and two legal counsel to the Police Board (one internal and one external) and
that they meet the criteria for protection from disclosure under
solicitor-client privilege. (Submission of the Vancouver Police Board,
paragraphs 23-35)
The applicant is of the view that certain of the records in dispute do not
qualify for the protection of solicitor-client privilege. (Submission of the
Applicant, paragraph 8) He made a number of submissions about the appropriate
application of section 14, which, based on my review of the records in dispute,
have no relevance to the actual contents of these records. (Submission of the
Applicant, pp. 14-18)
The second exhibit submitted by the Police Board comprises 15 pages, of which
the Police Board has not released about ten. It now plans to release another
page, which is a fax cover sheet. The Police Board submits that the protected
material is covered by solicitor-client privilege. On the basis of my review
of the pages in dispute, I find that they are indeed protected from disclosure
on the basis of section 14 of the Act.
6.
Order
I find that the head of the Vancouver Police Board is authorized to refuse
access to the records in dispute under sections 3(1)(b) and 14 of the Act.
Under section 58(2)(b), I confirm the decision of the Vancouver Police Board to
refuse access to the records in dispute to the applicant.
November 8, 1996
David H. Flaherty
Commissioner