Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 92-1996
March 15, 1996
INQUIRY RE: A refusal by BC Hydro to grant access to records on the basis
of solicitor-client privilege
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
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 in Victoria on February 7,
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 BC Hydro to refuse access to legal materials that BC Hydro relied
upon in making a decision on a previous freedom of information request that the
applicant made.
2. Documentation of the inquiry process
On March 3, 1994 the applicant requested from BC Hydro all records showing the
total charges incurred by BC Hydro's Legal Department with respect to the
applicant's Small Claims Court action against it. The applicant also requested
a copy of the log of the time that BC Hydro's solicitors spent on the trial.
BC Hydro withheld the records under section 14 of the Act. On April 24, 1995
the applicant resubmitted his request to BC Hydro. It advised the applicant
that it believed that their records were still subject to solicitor-client
privilege under section 14, but it then elected to waive its privilege in
order to provide the applicant with these records.
On September 11, 1995 the applicant requested from BC Hydro copies of the
legal material that it had relied upon in making its determination that the
records already released were subject to solicitor-client privilege. BC Hydro
wrote to the applicant on October 11, 1995 and advised him that it had decided
to withhold the requested records under section 14 of the Act. The applicant
then wrote to my Office on November 7, 1995 and requested a review of that
decision.
3. Issue under review at the inquiry and the burden of proof
The issue under review in this inquiry is whether the records in dispute
should be withheld under section 14 of the Act. This section 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 57 of the Act establishes the burden of proof. Under section 57(1),
at an inquiry into a decision to refuse an applicant access to all or part of a
record, it is up to the public body to prove that the applicant has no right of
access to the record or part thereof. In this case, BC Hydro has to prove that
the applicant has no right of access to the records in dispute.
4. The records in dispute
The records in dispute are a binder of legal cases and legal treatise
materials collected for BC Hydro in the course of developing its position on
the access request of the applicant. These materials include decisions on
freedom of information matters.
5. Discussion of BC Hydro's case
The context for this case is allegations by the applicant that BC Hydro
deprived him of income in a contractual relationship to deliver services. He
lost his case in Small Claims Court in British Columbia in 1994. Hydro claims
that he is still threatening legal action against it. (Submission of BC Hydro,
pp. 1, 2)
The applicant wants copies of the case law or legal references that BC Hydro
relied on for a statement that it made in a letter to him on June 1, 1995. BC
Hydro's position is that the material requested by the applicant is subject to
solicitor-client privilege under section 14 of the Act. (Submission of BC
Hydro, p. 5)
In BC Hydro's view, the records in dispute fall under both the
solicitor-client and contemplated litigation parts of solicitor-client
privilege. An articling student with BC Hydro reviewed relevant case law and
selected those cases which supported BC Hydro's position on the application of
privilege. The compilation of cases that she prepared "constitutes Hydro's
legal brief on this issue and represents ... the working papers" of the
articling student. (Submission of BC Hydro, p. 6)
I agree with BC Hydro's submission that "working papers used by a legal
advisor to formulate a legal opinion are covered under section 14 [of the Act]
because the papers are directly related to giving legal advice." In this case,
the articling student "communicated findings regarding solicitor client
privilege to her client, BC Hydro." (Submission of BC Hydro, p. 7)
BC Hydro also argues that the records in dispute are protected from disclosure
under section 14 because it believes that the applicant is contemplating
litigation against it. BC Hydro estimates that the applicant "has written to
Hydro in excess of 75 times since he first began to believe that Hydro breached
the Contract. In many of these letters, [the applicant] has demanded
compensation and has informed Hydro that he intends to pursue further action in
all available forums." (Submission of BC Hydro, p. 7) On the basis of the
evidence presented to me, I agree with BC Hydro that it has reasonable grounds
to rely on the contemplated litigation provisions of solicitor-client
privilege. (See Submission of BC Hydro. pp. 7-12)
6. Discussion of the applicant's case
The applicant first contests BC Hydro's reliance on section 14, because the
records in dispute were prepared by an articling student, who is by definition
neither a solicitor nor a lawyer. (Final Submission of the Applicant, pp. 1-3)
I find this argument without merit. An articling student is a person with a
law degree who is in fact working under the supervision of a member of the Law
Society of British Columbia, who is legally responsible for the work that the
student performs. The distinction that the applicant seeks to rely on is not
persuasive for purposes of the application of section 14 of the Act.
The applicant further argues that collecting case law does not constitute a
legal brief. (Final Submission of the Applicant, pp. 3-6) I find that legal
materials, such as case law or treatise material, used by a public body to
develop a legal opinion on an issue are in fact protected against disclosure on
the basis of solicitor-client privilege.
The applicant's third point is that the records in dispute were not collected
for possible litigation but to decide how to treat a request for access to
records under the Act. (Final Submission of the Applicant, pp. 6-10) I find
that even if the records were compiled solely for this claimed purpose, a
public body can still choose to protect them under section 14 of the Act.
The applicant also advanced an argument to the effect that the records in
dispute should be released "in the public interest" to "determine if B.C. Hydro
has/will operate in `good faith' in issues related to the FOI Act ...." (Final
Submission of the Applicant, p. 13) I can find no public interest at work in
this inquiry that would mandate disclosure under the Act.
8.
Order
In respect of the information requested by the applicant, I find that BC Hydro
was authorized to refuse access under section 14 of the Act. Under
section 58(2)(b), I confirm the decision of the head of BC Hydro to refuse access.
March 15, 1996
David H. Flaherty
Commissioner