Case Report – FIPPA court award on “Branch 2 privilege” released

On January 29th, the Divisional Court issued a FIPPA judicial review decision that dealt with multiple issues.

  • The Court held that records related to the Crown’s defence of a legal action based on actions taken by its employees were not excluded by the employment-related records exclusions.  It said, “Employment-related matters are separate and distinct from matters related to employees’ actions.”
  • The Court held that a letter from plaintiffs’ counsel to the Crown sent in the course of litigation was not “prepared for Crown counsel for use in litigation” and exempt under Branch 2 of section 19 (the so-called “statutory litigation privilege”).  
  • The Court held that the same letter, which included information provided by the Ministry in the course of litigation, was not exempt based on the implied undertaking rule.  It held the implied undertaking rule could not be read into section 19.
  • The Court questioned whether Branch 2 of section 19 protects any document copied simply copied for inclusion into the Crown brief, but did not answer its question because the records in question had qualified for the exemption based on the more rigid common law test from Nickmar:  the relevant records were compiled by research or the exercise of skill and knowledge on the part of the Crown.
  • The Court held that the IPC did not err by ordering disclosure of information with personal identifiers severed without considering whether information available to the press would cause individuals to be identifiable.  The Court suggested that the Ministry had a burden to adduce evidence of the facts within the press’ knowledge given that it was not otherwise obvious how individuals could be identified from the information disclosed. 
  • The Court ordered the IPC to reconsider the requester’s claim to the public interest override as applied to the records that were held to be exempt under section 19.  At the time, the IPC held that there was a compelling public interest in the disclosure of these records, but did not balance this public interest against the interest protected by 19 because it made its decision before the Ontario Court of Appeal read section 19 into to the override clause. 
Although this is award is mainly of general interest, any Court decision on Branch 2 privilege is of significance given the uncertainties that remain regarding the scope of its application.

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