I attended a very good dinner panel tonight on the Supreme Court of Canada’s Blood Tribe decision. The panelists were excellent, but my best take-away was moderator Priscilla Platt’s heads-up on the Alberta OPIC’s recently-issued Solicitor-Client Privilege Adjudication Protocol.
The Protocol is a leading attempt at addressing how an access to information adjudicator ought to exercise a discretion to order production of records claimed to be subject to solicitor-client privilege. It states:
… the Commissioner does not routinely compel production of information over which solicitor-client privilege is claimed; rather, he does so only on a case-by-case basis, when the party claiming the privilege fails to present adequate evidence of it and/or when opposing, persuasive evidence or argument has been presented to him that, in either circumstance, necessitates production in order for him to fairly decide the issue. Importantly, the Commissioner only compels production to the extent absolutely necessary in exceptional cases.
There is little question that the Alberta FIPPA gives the OPIC the power to compel records claimed to be privileged. Furthermore, one of the Act’s express purposes is to “provide for independent reviews of [access to information] decisions made by public bodies.” It nonetheless appears the OPIC has heeded to the tenor of the developing solicitor-client privilege jurisprudence by committing to a Protocol that will apply to all access requests that it adjudicates, including those under FIPPA.
Not surprisingly, the Protocol does require claimants to provide evidence to support a privilege claim on a record-by-record basis, preferably by way of a sworn affidavit. In this regard, it includes a (fair, in my view) “record form” to help claimants particularize the facts raised in support of a claim.
It remains to be seen whether access to information adjudicators in other jurisdictions will adopt a similar approach.