It is inappropriate to closely parse solicitor-client communications in assessing the scope of privilege; the entire “continuum of communications” must be protected. This is the principle articulated in a June 8th decision of the Court of Appeal for British Columbia.
The Court allowed the appeal of a chambers judge order to produce parts of a series of e-mails between a government lawyer and staff at an administrative tribunal. The content ordered to be produced included:
- two paragraphs and two sentences of a ten paragraph advisory e-mail in which the chambers judge suggested the lawyer stepped beyond his role as legal advisor and impinged upon the tribunal’s decision-making authority;
- a follow-up e-mail that the chambers judge held was not privileged for similar reasons; and
- follow-up correspondence between (internal) clients discussing the lawyer’s advice.
The Court held that all this communication was part of the “continuum of communications” that supported the solicitor-client relationship and was therefore privileged. It held there was no basis for a finding that the lawyer usurped the tribunal’s decision making authority, also stating:
In my view, it is in the nature of legal advice that it may influence the decision-making of the client. The purpose of legal advice is normally to advise the client on the best course of action to comply with the relevant law. Advice provided to a statutory decision-maker as to what should be done in order to be legally defensible is still legal advice.
The dispute arose after the above communications were inadvertently disclosed in response to a freedom of information request made by a law firm. The receiving lawyer obtained the communications as part of a disclosure package in which government made a number of exemption claims. She believed government to have waived privileged and used the communications in a proceeding, which led government to assert its privilege claim and claim its disclosure was inadvertent. The Court held there was no waiver. It wasn’t highly critical of the receiving lawyer given these facts, but reminded lawyers of their duty to give notice when they receive communications that are apparently privileged.
British Columbia (Attorney General) v. Lee, 2017 BCCA 219 (CanLII).
On November 27th, the IPC/Ontario held that a request for twelve years of electronic data on incidents involving houses used for illegal marijuana grow operations and/or clandestine labs was not a request for “records” because the required production process would “unreasonably interfere” with the operations of the Ministry of Community Safety and Correctional Services. As it has done successfully before, MCSCS argued that the security sensitive nature of its data precluded outsourcing. In this case, MCSCS also successfully argued that its data was not structured in a manner that allowed for production without a manual review for responsiveness; at an estimated 10 minutes per record for review, the request would have taken at least 2334 hours to answer.
Ministry of Community Safety and Correctional Services (Re), 2013 CanLII 77834 (ON IPC).
Here’s a presentation I delivered today in an Ontario Hospital Association webcast. I’ve been following “e-FOI” developments for a while and was happy to finally build and deliver a presentation to lend some structure to the topic. Stay tuned for more!
On October 22nd, Justice Scanlan of the Nova Scotia Supreme Court said the following about the responsiveness of e-mails in disposing of an FOI appeal:
There are a couple of issues that I wish to address further. It appears the initial review officer may have taken the position that the Respondent could not withhold documents on the basis that they were irrelevant. The Respondent referred to those materials as “not applicable”. According to the Respondent the Review Officer suggested there was no recognized exemption under FOIPOP legislation for “non applicable” materials. Any such ruling would defy commonsense. What possible relevance would it be to the Appellant if someone commented in a document that their grandmother had a wart removed from her nose. (Not that any such comment was made in the redacted materials). With e-mail communications the author on a number of occasions mixed personal or non relevant communications with information which was properly disclosed. The personal, non relevant, information is not something to which the Appellant is entitled to access. There are some things in records, such as e-mail, which are clearly irrelevant and should not be disclosed. The types of documents that fall inthe “not applicable” category include, for example notes from unrelated investigations or proceedings. The Appellant has no right to see those types of documents just because they are in an officer’s notebook. As I have noted, to suggest non relevant documents are to be produced on a FOIPOP application defies common sense and the scope of the legislation.
Under a strict analysis the “responsiveness” of an entire record is assessed against the wording of an FOI request. Justice Scanlan supports a more purposive approach (which reflects common practice) in which parts of records that are unresponsive may be redacted.
Stevens v. Nova Scotia (Labour ), 2012 NSSC 367 (CanLII).
The Information and Privacy Commissioner/Ontario has thus far demonstrated a good deal of pragmatism in exercising its power to review the quality of FIPPA and MFIPPA institutions’ e-mail searches. On June 30th, for example, it issued an order in which a requester claimed that an institution ought to have retained an independent IT expert to search and retrieve responsive e-mails, including “erased e-mails.” Despite the requester’s perception of conflict, IPC Adjudicator Morrow upheld the institution’s search as “coherent, systematic and responsible” in the circumstances.
This demonstrates that the IPC will defer to a reasonable search process and, absent special circumstances, is not likely to order the use of an external “e-discovery vendor.” Note that the IPC has also endorsed the choice to use vendors, a choice which allows institutions to pass through 100% of the reasonable costs of search and retrieval (which is not the case for internal searches). For an example of a case in which the use of an external IT vendor led to a valid yet very high yet reasonable fee estimate see Order MO-2154 .
See also Strong deference to search process demonstrated in “e-FOI” case.
IPC Order MO-2634, 2011 CanLII 43653 (ON IPC).
I’ve been following e-mail search FOI cases given their relevance. On July 21st, the IPC/Ontario upheld a such a search. The adjudicator rejected an argument from the requester that the institution should adduce evidence from the e-mail custodians who were asked to search for responsive records (and not just the individuals who coordinated the search). She did note that the requester, having declined to participate in the hearing, had not given the IPC any reason to doubt the bona fides of the institution’s search.
York University (Re), 2010 CanLII 44189 (ON I.P.C.)