Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 94-1996
March 20, 1996
INQUIRY RE: A decision by the Ministry of Social Services to withhold a
series of letters
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 21,
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 in
which a husband and wife sought access to all records relating to their
family's involvement with the Ministry of Social Services (the Ministry). Most
of it concerns the circumstances surrounding the death of their adolescent
daughter several years ago.
2. Documentation of the inquiry process
The applicants submitted a written request to the Ministry on July 25, 1995.
The Ministry wrote to the applicants on September 29, 1995 and granted them
access to most of the requested records. However, portions were severed or
withheld under sections 13, 14, and 22 of the Act. The applicants then wrote
to this Office on November 14, 1995 to request a review of the Ministry's
decision. Prior to this written inquiry, the Ministry decided to grant access
to the records that it had withheld under section 13. The Ministry also
released some records it had withheld under section 14.
3. Issue under review at the inquiry and burden of proof
The issues under review in this inquiry are the application of sections 14 and
22 of the Act to the records that the Ministry withheld from the applicants.
The relevant sections of the Act read 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.
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.
...
Under section 57(1) of the Act, at an inquiry concerning a refusal to grant
an applicant access to all or part of a record, the public body must prove that
the applicant has no right of access. In this case, the Ministry has to prove
that the applicants have no right of access to the information they are seeking
under section 14.
However, under section 57(2), if the record or part to which the applicant is
refused access contains personal information about a third party, it is up to
the applicant
to prove that disclosure of the personal information would not be an
unreasonable invasion of the third party's personal privacy. In this case, the
applicants must prove that the disclosure of the records in dispute will not
unreasonably invade the privacy of any third party under section 22.
4. The records in dispute
There are portions of eleven records in dispute. They consist primarily of
various letters among the Ministry of Social Services, its legal counsel, and
its outside counsel. These nine letters contain advice and opinions about the
applicants' dealings with the Ministry. Two other letters contain third party
personal information.
5. The Ministry's case
The Ministry states that it has withheld personal information concerning a
physician and another third party and information that is subject to
solicitor-client privilege. But it has disclosed more than 1,000 pages of
information, including all medical reports, court documents, running records,
and physical and electronic correspondence. (Submission of the Ministry,
paragraph 1.08) According to the Ministry, most of the withheld information in
nine records is covered by solicitor-client privilege. There is also a small
amount of personal information in two records that has been withheld under
section 22.
6. Discussion
The applicants did not make any submissions to me. This means that they have
not met the burden of proof imposed on them to show that the disclosure of
personal information about third parties would not be an unreasonable invasion
of their privacy under section 22 of the Act. Where an applicant who has the
burden of proof does not make such an initial submission for an inquiry, that
issue is considered to be abandoned. In order to activate my consideration of
section 22, applicants must at least write a sentence stating why disclosure of
the personal information about the third parties would not be an unreasonable
invasion of their privacy. See Order No. 59-1995, October 25, 1995. Ideally,
however, applicants will make a reasoned argument to meet their burden of proof
on the section 22 issue.
Section 14: The head of a public body may refuse to disclose to an
applicant information that is subject to solicitor client privilege.
This inquiry is only concerned with the branch of solicitor-client privilege
that deals with legal professional privilege, that is, direct communications
between clients and their solicitors. In addition to describing what it views
as the essence of this branch of the privilege, the Ministry drew the following
conclusion:
The records which have been withheld by the Public Body clearly meet the
criteria of solicitor-client privilege. All of the records are confidential
communications between solicitor and client, which entail the seeking or giving
of legal advice. (Submission of the Ministry, paragraph 5.07)
The lawyers involved include a solicitor in private practice retained by the
Ministry to act on behalf of the Superintendent of Family and Child Services in
court hearings involving the daughter of the applicant. The second and third
lawyers are in the Legal Services Branch of the Ministry of Attorney General
and provide legal advice to the Ministry. (Submission of the Ministry,
paragraphs 5.08 and 5.09) The Ministry has exercised its discretion not to
waive solicitor-client privilege.
The records in dispute
I have carefully reviewed the nine records in dispute that the Ministry claims
are subject to solicitor-client privilege. I confirm that they are letters
among lawyers and clients concerning legal issues arising during the illness of
the adolescent daughter of the applicants. As such, they are covered by
solicitor-client privilege under section 14.
7.
Order
I find that the Ministry of Social Services was authorized to refuse access to
the records in dispute under section 14 of the Act.
Under section 58(2)(b) of the Act, I confirm the decision of the Ministry of
Social Services to refuse access to the records withheld under section 14.
March 20, 1996
David H. Flaherty
Commissioner