What happens when institutions withhold records in which they claim solicitor-client privilege from an FOI adjudicator?

The Information and Privacy Commissioner/Ontario issued a university-sector FOI order late last year that dealt with a solicitor-client privilege claim. The outcome turns on the facts, but the order is nonetheless notable because it contains a narrative of how the IPC dealt with the University’s decision to only provide an index of records and supporting affidavit based on its solicitor-client privilege claim. Though not very clear in the order, it appears the IPC asked for a supplemental affidavit (to deal with exclusion claims also made to the withheld records), which led to an agreement to allow the IPC adjudicator to attend at the University to examine the records.

For another window into the process by which the IPC deals with institutions who elect not provide records to review, see this Divisional Court decision from last March.

York University (Re), 2010 CanLII 77658 (ON I.P.C.).

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