Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 212-1998
January 16, 1998
INQUIRY RE: A decision by the Ministry of Attorney General to withhold
records from Tri-Way Seniors Mobile Home Park
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 December 15,
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 by
Tri-Way Seniors Mobile Home Park (the applicant) of a decision by the Ministry
of Attorney General (the Ministry) to withhold records in the Residential
Tenancy Branch of the Ministry under sections 13(1) and 14 of the Act.
2. Documentation of the inquiry process
On June 12, 1997 Tri-Way Seniors Mobile Home Park requested records concerning
itself from the Ministry, including memos, correspondence, and handwritten
notes of telephone calls held by the Residential Tenancy Branch of the
Ministry. On July 11, 1997 the Ministry issued a fee estimate for search time,
which the applicant agreed to pay on July 15, 1997.
On July 21, 1997 the Ministry informed the applicant that it was extending the
30-
day
response time by 30 days because of the large volume of records it had to
search in order to respond to the request. The Ministry stated that it would
respond by August 20, 1997. On September 4, 1997 the Ministry provided access
to most of the requested records. However, it withheld one record and portions
of other records under sections 13, 14, and 22 of the Act. The applicant
requested a review of the Ministry's decision on September 8, 1997.
On November 19, 1997 the Ministry disclosed several records which it had
previously withheld under section 13(1). The Ministry also told the applicant
that it was applying section 14 to other items, either as well as, or instead
of, section 13(1). On November 21, 1997 the applicant informed my Office that
it wished to proceed to an inquiry on the remaining items withheld under
sections 13(1) and 14. My Office gave notice to the applicant and the Ministry
of the written inquiry to be held on December 15, 1997.
On December 3, 1997 the Ministry informed my Office that it was withdrawing
the application of section 14 to one of the records but retaining its
application of section 13 to this record.
3. Issue under review and the burden of proof
The issue under review concerns the Ministry's application of sections 13(1)
and 14 of the Act to records 1, 2, 4, 12, 19, and 22. Section 22 is not an
issue in this inquiry.
The relevant portions of the Act read as follows:
Policy advice, recommendations or draft regulations
13(1) The head of a public body may refuse to disclose to an applicant
information that would reveal advice or recommendations developed by or for a
public body or a minister.
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 on the parties in this
inquiry. Under section 57(1), where access to information in the record has
been refused under sections 13(1) and 14, 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.
4. The records in dispute
The records in dispute include e-mails, a memorandum, a letter, and a briefing
note exchanged between Ministry staff. Some of these records have been severed
under sections 13(1) and 14 of the Act, while others have been withheld
entirely.
5. Tri-Way Seniors Mobile Home Park's case
I have reviewed the applicant's detailed submissions on the application
of sections 13 and 14 of the Act to the records in dispute. The applicant
specifically challenges the application of section 14 to the briefing note
prepared for the Assistant Deputy Minister. According to the applicant, the
briefing note does not meet the test for solicitor-client privilege since there
is no indication that the author of the briefing note was seeking or providing
legal advice. Although the applicant appears to accept that the legal opinions
furnished by the Ministry of Attorney General fall under section 14, it
suggests that the privilege would have been waived if the opinions had been
provided to, or discussed with, the tenants in the mobile home park.
The applicant also submits that it is not sufficient for a public body to
simply label a document "advice or recommendations" but rather it must
demonstrate that the information sought is, in substance, "advice or
recommendations" under section 13.
6. The Ministry of Attorney General's case
The Ministry submits that it has appropriately withheld the information
in dispute on the basis of sections 13 and 14 of the Act. It submits that
section 13 is intended to allow full and frank discussion of advice or
recommendations within the public service, preventing the harm that would occur
if the deliberative process of government decision and policymaking was subject
to excessive scrutiny. The Ministry points out that there is no legal
requirement to prove that harm may result if the severed information is
disclosed. The Ministry submits that the severed information reflects advice
and recommendations developed by it as to the content of a briefing note and
letters drafted for a Minister and the Premier.
The Ministry submits that solicitor-client privilege attaches to
communications under section 14 where there is a lawyer/client relationship,
consultation of the lawyer in the capacity of legal advisor, or a confidential
communication for the purpose of obtaining/giving legal advice. The Ministry
points out that a lawyer/client relationship exists between the Attorney
General (in practice, the lawyers employed in the Legal Services Branch) and
Her Majesty the Queen in Right of the Province of British Columbia. The
Ministry submits that two of the records withheld under section 14 are
communications between solicitor and client for the purpose of obtaining/giving
legal advice. While a third record is not a communication directly to or from
a lawyer, it reflects confidential communications between solicitor and client
made for the purpose of obtaining/giving legal advice. Finally, the Ministry
submits that privilege is not waived when information is communicated to or
between different parts of the government.
7. Discussion
Background Information
The Ministry has indicated that the applicant has filed a petition in the
Supreme Court of this province seeking an order that section 18(1) of the
Residential Tenancy Act does not apply to forty-nine arbitration
applications filed by tenants of
Tri-Way Mobile Home Park. The tenants, concerned about maintenance and repairs
in the Tri-Way Seniors Mobile Home Park, are seeking a retroactive rent
reduction related to an alleged failure to provide maintenance and repairs in
the mobile home park. The Supreme Court has ordered the arbitration stayed
until the petition can be heard by the Court. (Submission of the Ministry,
paragraph 1.03)
Section 13: Policy Advice, recommendations or draft
regulations
I agree with the Ministry that this section "is intended to
allow full and frank discussion of advice or recommendations within the public
service, preventing the harm that would occur if the deliberative process of
government decision and policy making was subject to excessive scrutiny."
(Submission of the Ministry, paragraph 5.02)
Having reviewed the records in dispute and the affidavit evidence filed by the
Ministry, I accept that the severed information reflects advice and
recommendations developed regarding the content of a briefing note and letters
drafted for a Minister and the Premier. The information severed from an e-mail
message was a recommendation from the Manager of the Residential Tenancy
Branch, Vancouver Island to the Director of the Residential Tenancy Branch in
relation to a draft briefing note. Similarly, the information severed from a
fax sheet to a Policy/Issues Analyst with the Policy and Communications Branch
of the Ministry of Attorney General, and an e-mail to the Director of the
Residential Tenancy Branch, also reflected advice to the Attorney General on
the contents of a Minister's letter and a letter drafted for the Premier.
(Submission of the Ministry, paragraph 5.05) Based on the evidence, I accept
that the Ministry has discharged its burden of proving that it was authorized
to refuse access to the severed information under section 13 of the Act.
Section 14: Legal Advice
The information withheld on the basis of this section reflects the fact that a
lawyer/client relationship exists between the Attorney General's lawyers in the
Legal Services Branch and the government of the province. Two of the records
are direct communications between solicitor and client for the purpose of
obtaining or giving legal advice. A third reflects confidential communications
between solicitor and client for the purpose of obtaining or giving legal
advice. See Order No. 165-1997, May 20, 1997, p. 8; and Order No. 201-1997,
November 28, 1997, p. 4. (Submission of the Ministry, paragraphs 5.12 to 5.14)
These records fall squarely within section 14 of the Act.
Information has also been severed from a briefing note prepared for the
Assistant Deputy Minister concerning the petition filed by the holding company.
Although this document is not a direct communication between solicitor and
client, the information severed would disclose instructions to legal counsel as
well as the government's position and strategy regarding the legal proceedings.
I accept that the information severed from the briefing note reflects
confidential communications between solicitor and client made for the purpose
of obtaining/giving legal advice and was properly withheld under section 14 of
the Act. (See Order No. 165-1997, May 20, 1997, pp. 8-9)
The applicant suggests that privilege is waived if any of the information was
shared with individuals outside of government. The Ministry denies that
privilege has been waived. As there is no evidence that legal advice was
provided to or discussed with tenants or anyone else outside of government, I
do not accept the argument that the privilege has been expressly or impliedly
waived in the circumstances of this case.
8. Review of the records in dispute
The Ministry has provided the applicant and myself with a detailed
description of each of the six records in dispute, with an indication of the
amount of severing, and the specific exception applied under the Act.
(Submission of the Ministry, paragraph 4.01)
I have reviewed each of the severances and find the information appropriately
withheld under sections 13 and 14 of the Act. I find that the Ministry has met
its burden of proof under the Act.
9.
Order
I find that the Ministry of Attorney General was authorized under sections 13
and 14 of the Act to refuse access to the records severed or withheld from the
applicant under those sections. Under section 58(2)(b), I confirm the decision
of the Ministry of Attorney General to refuse access to the records withheld on
the basis of sections 13 and 14.
January 16, 1998
David H. Flaherty
Commissioner