Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 179-1997
August 6, 1997
INQUIRY RE: A decision of The Law Society of British Columbia to withhold
records pertaining to an applicant's complaint against several lawyers
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 March 27,
1997 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 Law Society of British Columbia (the Law Society) to withhold
records concerning the applicant's complaint against a number of lawyers and
the billing records of another lawyer who was retained to investigate those
complaints.
2. Documentation of the inquiry process
On October 9,1996 the applicant requested records concerning (1) the
applicant's complaint against five lawyers and (2) the billing records of a
sixth lawyer for services rendered concerning the applicant's complaint against
the five lawyers mentioned above and against a seventh lawyer. On October 18,
1996 the Law Society wrote to the applicant informing him that the billing
records would not be provided since they were excepted from disclosure under
section 14 of the Act. On November 13, 1996 the Law Society provided the
applicant with a number of other records and withheld others under sections 14
and 22 of the Act.
On October 22, 1996 the applicant requested a review of the first decision of
the Law Society and, on November 25, 1996, a review of the second decision.
3. Issues under review and the burden of proof
The principal issue under review is the Law Society's decision to apply
sections 14 and 22 of the Act to a series of records related to the applicant's
complaints to the Law Society. In addition, this inquiry covers the Law
Society's decision to apply section 14 of the Act to a lawyer's billing
records. The applicable sections 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.
(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
Non-disclosure of privileged and confidential information
63(1) Notwithstanding section 14 of the Freedom of Information and
Protection of Privacy Act, a person who, in the course of carrying out
duties under this Act, becomes privy to information, files or records that are
confidential or are subject to solicitor and client privilege, has the same
obligation respecting the disclosure of that information as the member from
whom the information, files or records were obtained.
(2) A member, former member or articled student who, in accordance with this
Act, provides the society with any information, files or records that are
confidential, or subject to a solicitor and client privilege is deemed not to
have breached any duty or obligation that he or she would otherwise have had to
the society or the client not to disclose the information, files or records.
(3) A person who, during the course of an appeal under section 64 or an
application under the Judicial Review Procedure Act with respect to a
matter under this Act, becomes privy to information or records that are
confidential or are subject to solicitor and client privilege, must not
(b) disclose the information to any person.
....
(7) Section 47(4) of the Freedom of Information and Protection of Privacy
Act does not apply to information that, but for this Act and the production
of the information to the commissioner under that Act, would be subject to
solicitor and client privilege.
Section 57 of the Freedom of Information and Protection of Privacy Act
establishes the burden of proof on parties in an inquiry. Under section 57(1),
where access to information in the record has been refused under section 14, it
is up to the public body, in this case the Law Society, to prove that the
applicant has no right of access to the record or part of the record. Under
section 57(2), where access to information in a record has been refused under
section 22, it is up to the applicant to prove that disclosure of the
information would not be an unreasonable invasion of the third parties'
personal privacy.
4. The records in dispute
The records in dispute include various letters, memos, and notes pertaining to
the applicant's complaints against a number of lawyers and the billing records
for a lawyer under contract to the Law Society of British Columbia to
investigate the complaints.
5. The applicant's case
The applicant submits that section 14 of the Act is not properly
engaged by the Law Society. He also argues that the disclosure of personal
information of the five lawyers would not constitute an unreasonable invasion
of the lawyers' privacy under section 22, because it is information which is
already in the public domain. I have presented below further details of the
applicant's submission on the application of sections 14 and 22 to the records
in dispute.
6. The Law Society's case
The Law Society submits that it has indicated to the applicant, in writing,
the section of the Act that it has relied on for not disclosing (1) lawyers'
bills which detail legal services rendered; (2) documents listed in attachments
to the Law Society's letter to the applicant, dated November 13, 1996; and (3)
a letter which was not disclosed in a letter of the Law Society to the
applicant on December 6, 1996. (Submission of the Law Society, paragraphs 15,
16; Brief of documents and authorities, tab nos. 2, 3, 4)
I have presented below more of the Law Society's detailed submissions on the
applicability of sections 14 and 22 of the Act.
7. Discussion
This inquiry follows on from issues that I have already discussed in
Order No. 169-1997, June 11, 1997, in which I upheld the Law Society's decision not to
release records of an investigation of one of its members to this applicant.
Section 14: Solicitor-client privilege
The applicant contends that the retainer of outside counsel by the Law Society
to investigate the complaints does not give rise to the right to claim
solicitor-client privilege. He has advanced various reasons why section 14
should not apply to the remaining records in dispute. (Submission of the
Applicant, pp. 5-17) In particular, he argues that:
(1) "... communications which took place during the course of an investigation
into a complaint about the conduct of a lawyer should be disclosed to the
complainant." (Submission of the Applicant, p. 8)
(2) "...the reality is that an outside lawyer's role vis-à-vis the
investigation of a complaint against a member, is limited to informing, seeking
direction and presenting a far from independent report to the Discipline
Committee of the Law Society.... In these circumstances, the outside lawyer is
not giving advice to the Law Society at all. They are merely rubber-stamping a
decision made at 845 Cambie Street at taxpayer's expense." (Submission of the
Applicant, pp. 11, 12)
(3) "[the outside counsel's] financial arrangements with the Law Society
cannot be protected by solicitor-client privilege. Indeed, it is in the public
interest to know what [outside counsel] was paid for `investigating' my
complaints." (Submission of the Applicant, p. 12)
The Law Society submits that section 14 protects from disclosure all
communications between it, its employees and officers, and outside counsel that
it retained to handle a complaint against a member of the Law Society.
(Submission of the Law Society, paragraph 21) I have reviewed the affidavit of
Bryan F. Ralph, Q.C., Secretary to the Law Society of B.C. (as he then was),
and find that the requirements necessary to establish a solicitor-client
relationship are present. (Submission of the Law Society, paragraph 21, and
Law Society response to the surreply of the applicant, paragraph 4) In
addition, the records include two pages of counsel's handwritten notes which I
find form part of counsel's brief and are protected by solicitor-client
privilege. (Submission of the Law Society, paragraphs 22 and 23) The Law
Society, as client, has not consented to the disclosure of any of its
communications with outside counsel or the contents of the solicitor's brief.
(Submission of the Law Society, paragraph 23)
I agree with the Law Society's submission that legal accounts enjoy the same
privilege as any other solicitor-client communications (Submission of the Law
Society, paragraph 24). (Corporation of the District of North Vancouver
v. The Information and Privacy Commissioner (unreported, Vancouver
Registry No. A954022/A954033), [1996] B.C.J. No. 2534 (S.C.), October 15,
1996).
I agree with the various submissions of the Law Society on the application of
section 14 to the records in dispute. (See also Order No. 169-1997, pp. 4, 5)
I do not agree with the arguments of the applicant on the limited scope of
section 14 of the Act.
Section 22: Disclosure harmful to personal privacy
The applicant is of the view that the Law Society is being inconsistent in its
application of section 22 of the Act to the records in dispute because it
released similar information concerning a lawyer in another case. In addition,
the applicant contends that the bulk of the material being withheld is already
in the public domain in directories of lawyers. (Submission of the Applicant,
paragraphs 6.01, 6.02; see also Reply Submission of the Applicant, paragraphs
4, 5) In his view, disclosure of the personal information about the five
lawyers held by the Law Society would not be an unreasonable invasion of their
privacy. (Reply Submission of the Applicant, p. 18)
The Law Society submits that the personal information in dispute must be
withheld on the basis of the statutory presumptions established by
section 22(3) and circumstances under section 22(2) of the Act. (Reply Submission of
the Law Society, paragraph 5) The Law Society states that the fact that
disclosure was made in a different case in different circumstances is not
evidence that disclosure with respect to these lawyers would not be harmful.
I agree with the Law Society that the fact that it disclosed similar personal
information in another access to information request, with the consent of the
member involved, is not a binding precedent in this inquiry. (Reply Submission
of the Law Society, paragraphs 7, 8). Further, the personal information
withheld by the Law Society is not available in the directories of lawyers.
The records in dispute include computer printouts of a member's history. I
agree with the Law Society that the information relates to the third parties'
employment histories (section 22(3)(d)) and describes their financial history
(22(3)(f)) and that disclosure would therefore be an unreasonable invasion of
the privacy of the lawyers in question. In addition, the Law Society applied
section 22(2)(f) as a consideration in determining whether disclosure would be
an unreasonable invasion of privacy. However, as the origin and context of the
information is not clear from the submissions, and given the presumptions in
sections 22(3)(d) and 22(3)(f), it is not necessary to decide on the
application of this consideration.
I conclude that the applicant has not advanced sufficient evidence or argument
to rebut the presumption under section 22(3) of the Act. Therefore, I find
that the applicant has not met his burden of proof under section 57(2). The
Law Society is required to withhold the information in the records in dispute
under section 22.
Section 63 of the Legal Profession Act
As in Order No. 169-1997, pp. 5-6, the Law Society invokes section 63; in view
of my decision on section 14, it is not necessary to address this submission.
Procedural matters
Shortly after he received the Notice of Inquiry, but before he made his
initial submissions, the applicant complained that he did not receive the
Portfolio Officer's fact report before the Notice of Inquiry. It was sent to
him the day after my Office received his objection and thirteen days before the
submissions were due. It does not appear that the applicant has been
prejudiced in this matter.
After receiving the Law Society's reply submission, the applicant asked for
the opportunity to respond to it. The applicant said that the Law Society's
reply submission raised "some new and unexpected issues as well as some
misleading statements." The Law Society stated that it could "see no basis for
the applicant's assertion that anything in the Law Society's reply is new or
unexpected." In addition, the Law Society submitted that it could "see no
merit whatsoever in [the] unsubstantiated allegation" of misleading
statements.
As I pointed out in Order No. 169-1997, at page 7, "a party is not normally
permitted an additional response to the other party's reply, because the reply
should not raise new issues." In the present inquiry, however, I granted the
applicant an opportunity to file a surreply restricted to "the new matters."
In turn, I granted the Law Society the opportunity to respond to the issues
raised by the applicant in his surreply.
8.
Order
I find that the Law Society of British Columbia was authorized under
section 14 of the Act to refuse access to the records in dispute. Under
section 58(2)(b) of the Act, I confirm the decision of the head of the Law Society to
refuse access.
I also find that the Law Society of British Columbia was required to refuse
access under section 22 of the Act to the personal information in the records
in dispute. Under section 58(2)(c), I require the head of the Law Society to
refuse access to these records.
August 6, 1997
David H. Flaherty
Commissioner