The perils of e-mail attachments and privilege claims

The Court of Appeal for Saskatchewan issued a freedom of information judgement last week that illustrates a good practice point for FOI practitioners: claim privilege over privileged e-mails and their attachments together.

“Record 1” was an e-mail sent to Ministry legal counsel for the purposes of obtaining legal advice about its attachments. Though part of the privileged communication, the Ministry indexed the attachments as “Record 2” and “Record 3.” It claimed that the attachments were privileged, and also exempt pursuant to the Saskatchewan exemption for “information obtained in confidence from other governments.”

By making its exemption claims in this way, the Ministry revealed that it sought legal advice on communications (and information) it received from other governments. Is it any surprise, then, that the Court affirmed a finding that the attachments were not protected by solicitor-client privilege?

While viewing the Court’s finding is understandable, I don’t agree that it is correct. The attachments to (privileged) Record 1 are clearly part of a privileged communication. As part of that communication (and not necessarily on their own), the attachments are privileged. The Ministry ought to have better protected its privilege by indexing Record 1 in its entirety and, if Records 2 and 3 were responsive on their own, indexing each separately.

Saskatchewan (Ministry of Health) v West, 2022 SKCA 18 (CanLII).