Newfoundland CA Says Commissioner Can Review Documents Subject to S-C Privilege Claim

On October 26th, the Supreme Court of Newfoundland and Labrador (Court of Appeal) held that the Newfoundland Information and Privacy Commissioner can require a public body to produce records claimed to be exempt from public access as subject to solicitor-client privilege.

The Newfoundland Access to Information and Protection of Privacy Act gives requesters a right to seek review of an access decision either through the Commissioner or the Trial Division. In the event of a review, the Commissioner may require production of records, and a public body has a corresponding duty under section 52(3) to provide responsive records “notwithstanding another Act or a privilege under the law of evidence.”

The Court held that section 52(3) allows the Commissioner to compel the production of records claimed to be exempt from public access as subject to solicitor-client privilege. It relied on the provision’s ordinary meaning interpreted in light of legislative purpose, which it said was “to provide for an independent review officer, as an alternative to the courts, who can undertake a timely and affordable first level review of all information request denials.”

The Court also made the following notable comment about the exercise of discretion to demand a review of documents subject to a privilege claim:

If the Commissioner were to receive a letter (or possibly an affidavit) from a senior Justice official indicating that all materials were provided as per an access to information request save for documents containing legal advice (identified by subject matter, date and solicitor) could not the Commissioner reasonably rely on that to conclude that the documents in question are in fact privileged? Such an arrangement, it seems to me, should operate to deal with the vast majority of cases. And, in the few where the Commissioner felt compelled to pursue matters further, the discussion would be focused in a way that should assist reasoned consideration.

The key to all this is good faith in the exercise of authority. With that comes mutual trust, by the Commissioner that senior Justice officials are being truthful and by Justice officials that the Commissioner will not unreasonably call for the production of legal opinions and advice. Cooperation should be the rule and litigation very much the exception.

Newfoundland and Labrador (Information and Privacy Commissioner) v. Newfoundland and Labrador (Attorney General), 2011 NLCA 69 (CanLII), retrieved on 2011-11-1.

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