Recent NS Review Report Issued (from NS Freedom of Information & Protection of Privacy Office)
Good Morning,
On August 27, 2010, Nova Scotia Freedom of Information and Protection of
Privacy Review Officer, Dulcie McCallum released the following Review Report
FI-08-47(M). A copy of the full Report can be found on our website at
http://www.foipop.ns.ca/rep_recent.html
FI-08-47(M)
Report Release Date: August 27, 2010
Public Body: The Municipality of East Hants
Issues: Whether the Municipality of East Hants ["Municipality"]
appropriately applied Part XX of the Municipal Government Act ["MGA"] and in
particular:
1.Whether the solicitor-client privilege exemption in s. 476 of the MGA
allows the Municipality to withhold the Record.
2.Whether the Municipality has properly exercised its discretion to apply
the solicitor-client exemption in s. 476 of the MGA.
3.Whether the Municipality has waived privilege to the responsive Record.
4.In the exercise of its discretion, whether the Municipality properly
considered public interest in accordance with s. 486 of the MGA.
Record at Issue: Pursuant to s. 491 of the MGA, the Municipality has
provided the Freedom of Information and Protection of Privacy Review Office
with a copy of the complete Record, including the information withheld from
the Applicant. At no time are the contents of the Record disclosed or the
Record itself released to the Applicant by the Review Officer or her
delegated staff.
The Applicant in this Review specifically requested the Review Officer to
release the Record. It is important to note that only a public body can make
the decision to release a Record either as its response to an Application
for Access to a Record or in response to a Recommendation from the Review
Officer. The Review Officer will never release records to any applicant.
The Record at issue is one ten-page letter from a solicitor to the
Municipality, which was withheld in full. After the investigation was
complete the Applicant was provided with additional information about the
letter: the author and date of the correspondence.
Summary: An Applicant requested a Review of the Municipality's decision to
refuse access to a Record based on a discretionary exemption, s. 476
[solicitor-client privilege] of the MGA. The Applicant claimed the Record
should be released based on public interest.
Findings: The Review Officer made the following findings:
1.The Record is a letter from an outside solicitor to the Municipality
providing it with a legal opinion. While the contents of the Record are a
mixture of fact and opinion, the text as it stands when first provided to
the Municipality constitutes a document that could be prima facie protected
by solicitor-client privilege.
2.Solicitor-client privilege is not absolute under access to information
legislation and should not be applied as a blanket exemption. If it was
intended that once a Record met the definition of solicitor-client privilege
it was to be automatically withheld, s. 476 would have read "shall" and as
such would have been a mandatory exemption.
3.The Municipality spent considerable time discussing the Record and how it
is a legal opinion that is protected by solicitor-client privilege in its
favour as the "client." The Municipality did not seem to make any
distinction between the privilege at law and the privilege as it is to be
applied as a discretionary exemption. The direction in the Purpose section
of the MGA that exemptions are to be "limited and specific" apply equally to
the s. 476 exemption as it does to all other exemptions provided for in the
legislation.
4.Under a discretionary exemption, it is incumbent on public bodies to
consider all relevant factors in exercising discretion. In this case, I
find the Municipality failed to properly exercise discretion as it did not
consider all relevant factors but rather chose to apply s. 476 as if it were
a mandatory exemption; solicitor-client correspondence ipso facto withheld.
5.When making a decision under a discretionary exemption, including
solicitor-client privilege, and the Record is intimately involved as part of
a public process where the issues raised are attracting a great deal of
attention from the public, it is incumbent on a public body when it first
receives an Application for Access to a Record to factor in public interest
in the exercise of its discretion.
6.The Municipality by its own conduct waived the privilege; it provided
copious amounts of information to the public about the process and the fact
that the legal opinion had resulted in a change to the petition process. At
least one Councillor disclosed some or all of the legal opinion to at least
one member of the public who shared that information with others who acted
upon that legal advice. The Municipality summarized the changes resulting
from the legal opinion in media reports.
7.During the Review process, the Municipality refused to receive submissions
from the Applicant regarding public interest.
8.The Applicant met his/her onus by providing a preponderance of evidence to
demonstrate public interest in the issue which is the topic of the Record.
9.By its own Representations and actions, the Municipality has agreed with
the fact that public interest is a factor. The Municipality concedes the
fact that there is considerable public interest in the matter surrounding
the Record that is the paving petition, and uses it as its rationale for
providing substantial amounts of information to the interested public. It
was the basis on which it held the first public meeting with respect to a
paving petition.
10. Ironically, the Municipality indicates that it considered the fact that
it had previously released a considerable amount of information to all
stakeholders involved with this issue as a factor in exercising its
discretion to apply the exemption. That amounts to saying "we gave out tons
of information to lots of members of the public because of the considerable
interest in the paving issue so we are refusing to give out the record
requested by this particular Applicant." This approach lacks logic and
coherency.
11.The Responsible Officer [FOIPOP Administrator] believes that because the
Council rejected the paving petition and chose to proceed differently, which
s/he submits it has the authority to do, it makes the Applicant's access to
information request moot. This conclusion is neither correct for the
purpose of processing the Applicant's Application for Access to a Record nor
for deciding the Applicant's Request for Review with the Review Office under
the MGA. The issue of whether or not the Applicant is entitled to a copy of
the Record remains alive and is not rendered moot because the Council made a
different decision about the paving, which is irrelevant for the purpose of
this Review.
12.The Responsible Officer seems to be under some misunderstanding about the
process about his/her role in rendering a decision under the MGA. As the
delegated authority from the Head of the public body [Municipality], the
FOIPOP Administrator is given the authority to make a decision under the
statute. S/he may seek information, advice, and guidance from a variety of
sources including legal advice but this is not necessary.
13.It is open to the Review Officer to recommend a new decision. The
recommendations can include issues with respect to process used by the
Municipality as well as the substance of its decision [refer to FI-07-27].
Recommendations:The Review Officer made the following recommendations to the
Municipality:
1.To release the complete Record to the Applicant; and
2.To approach the Department of Justice Information Access and Privacy
Office and/or Service Nova Scotia and Municipal Relations to inquire whether
or not training and support are available to smaller agencies such as this
Municipality with respect to decision-making under the Part XX of the MGA.
Key Words: blanket denial, clearly, Councillor, divergent views, fairness,
FOIPOP Administrator, municipality, override, paving, petition, process,
public interest, public participation, purpose, responsible officer,
solicitor-client privilege, waiver.
Statutes Considered: Municipal Government Act, Part XX, ss. 462(b), 476,
486.
Case Authorities Cited: NS Review Reports FI-02-58, FI-05-08, FI-08-06,
FI-00-116, FI-00-29, FI-00-50, FI-07-27; BC Order 02-38; ON Orders P-944,
MO-2456; Peach v. Nova Scotia (Transportation and Infrastructure Renewal),
2010 NSSC 91; S. & K. Processors Ltd. v. Campbell Ave. Herring Producers
Ltd., [1983] B.C.J. 1499 (S.C.); Ontario (London Public Library Board), 2010
Can LII 10811; Harish v. Stamp (1979), 27 O.R.(2d) 395 (C.A.); R. v. Hobbs,
2009 NSCA 90; Ontario (Public Safety and Security) v. Criminal Lawyers'
Association, 2010 SCC 23; Knight's Minister Exploration & Co. v. Corcoran &
Co. 1993 Can LII 2728 (BCSC).
Other Cited: McNairn and Woodbury's Government Information, Access and
Privacy.
Cheers,
Mary Kennedy
Intake/Administration
Freedom of Information & Protection of Privacy
Review Office
Tel: (902) 424-4684
Fax: (902) 424-8303
Web: www.foipop.ns.ca
On August 27, 2010, Nova Scotia Freedom of Information and Protection of
Privacy Review Officer, Dulcie McCallum released the following Review Report
FI-08-47(M). A copy of the full Report can be found on our website at
http://www.foipop.ns.ca/rep_recent.html
FI-08-47(M)
Report Release Date: August 27, 2010
Public Body: The Municipality of East Hants
Issues: Whether the Municipality of East Hants ["Municipality"]
appropriately applied Part XX of the Municipal Government Act ["MGA"] and in
particular:
1.Whether the solicitor-client privilege exemption in s. 476 of the MGA
allows the Municipality to withhold the Record.
2.Whether the Municipality has properly exercised its discretion to apply
the solicitor-client exemption in s. 476 of the MGA.
3.Whether the Municipality has waived privilege to the responsive Record.
4.In the exercise of its discretion, whether the Municipality properly
considered public interest in accordance with s. 486 of the MGA.
Record at Issue: Pursuant to s. 491 of the MGA, the Municipality has
provided the Freedom of Information and Protection of Privacy Review Office
with a copy of the complete Record, including the information withheld from
the Applicant. At no time are the contents of the Record disclosed or the
Record itself released to the Applicant by the Review Officer or her
delegated staff.
The Applicant in this Review specifically requested the Review Officer to
release the Record. It is important to note that only a public body can make
the decision to release a Record either as its response to an Application
for Access to a Record or in response to a Recommendation from the Review
Officer. The Review Officer will never release records to any applicant.
The Record at issue is one ten-page letter from a solicitor to the
Municipality, which was withheld in full. After the investigation was
complete the Applicant was provided with additional information about the
letter: the author and date of the correspondence.
Summary: An Applicant requested a Review of the Municipality's decision to
refuse access to a Record based on a discretionary exemption, s. 476
[solicitor-client privilege] of the MGA. The Applicant claimed the Record
should be released based on public interest.
Findings: The Review Officer made the following findings:
1.The Record is a letter from an outside solicitor to the Municipality
providing it with a legal opinion. While the contents of the Record are a
mixture of fact and opinion, the text as it stands when first provided to
the Municipality constitutes a document that could be prima facie protected
by solicitor-client privilege.
2.Solicitor-client privilege is not absolute under access to information
legislation and should not be applied as a blanket exemption. If it was
intended that once a Record met the definition of solicitor-client privilege
it was to be automatically withheld, s. 476 would have read "shall" and as
such would have been a mandatory exemption.
3.The Municipality spent considerable time discussing the Record and how it
is a legal opinion that is protected by solicitor-client privilege in its
favour as the "client." The Municipality did not seem to make any
distinction between the privilege at law and the privilege as it is to be
applied as a discretionary exemption. The direction in the Purpose section
of the MGA that exemptions are to be "limited and specific" apply equally to
the s. 476 exemption as it does to all other exemptions provided for in the
legislation.
4.Under a discretionary exemption, it is incumbent on public bodies to
consider all relevant factors in exercising discretion. In this case, I
find the Municipality failed to properly exercise discretion as it did not
consider all relevant factors but rather chose to apply s. 476 as if it were
a mandatory exemption; solicitor-client correspondence ipso facto withheld.
5.When making a decision under a discretionary exemption, including
solicitor-client privilege, and the Record is intimately involved as part of
a public process where the issues raised are attracting a great deal of
attention from the public, it is incumbent on a public body when it first
receives an Application for Access to a Record to factor in public interest
in the exercise of its discretion.
6.The Municipality by its own conduct waived the privilege; it provided
copious amounts of information to the public about the process and the fact
that the legal opinion had resulted in a change to the petition process. At
least one Councillor disclosed some or all of the legal opinion to at least
one member of the public who shared that information with others who acted
upon that legal advice. The Municipality summarized the changes resulting
from the legal opinion in media reports.
7.During the Review process, the Municipality refused to receive submissions
from the Applicant regarding public interest.
8.The Applicant met his/her onus by providing a preponderance of evidence to
demonstrate public interest in the issue which is the topic of the Record.
9.By its own Representations and actions, the Municipality has agreed with
the fact that public interest is a factor. The Municipality concedes the
fact that there is considerable public interest in the matter surrounding
the Record that is the paving petition, and uses it as its rationale for
providing substantial amounts of information to the interested public. It
was the basis on which it held the first public meeting with respect to a
paving petition.
10. Ironically, the Municipality indicates that it considered the fact that
it had previously released a considerable amount of information to all
stakeholders involved with this issue as a factor in exercising its
discretion to apply the exemption. That amounts to saying "we gave out tons
of information to lots of members of the public because of the considerable
interest in the paving issue so we are refusing to give out the record
requested by this particular Applicant." This approach lacks logic and
coherency.
11.The Responsible Officer [FOIPOP Administrator] believes that because the
Council rejected the paving petition and chose to proceed differently, which
s/he submits it has the authority to do, it makes the Applicant's access to
information request moot. This conclusion is neither correct for the
purpose of processing the Applicant's Application for Access to a Record nor
for deciding the Applicant's Request for Review with the Review Office under
the MGA. The issue of whether or not the Applicant is entitled to a copy of
the Record remains alive and is not rendered moot because the Council made a
different decision about the paving, which is irrelevant for the purpose of
this Review.
12.The Responsible Officer seems to be under some misunderstanding about the
process about his/her role in rendering a decision under the MGA. As the
delegated authority from the Head of the public body [Municipality], the
FOIPOP Administrator is given the authority to make a decision under the
statute. S/he may seek information, advice, and guidance from a variety of
sources including legal advice but this is not necessary.
13.It is open to the Review Officer to recommend a new decision. The
recommendations can include issues with respect to process used by the
Municipality as well as the substance of its decision [refer to FI-07-27].
Recommendations:The Review Officer made the following recommendations to the
Municipality:
1.To release the complete Record to the Applicant; and
2.To approach the Department of Justice Information Access and Privacy
Office and/or Service Nova Scotia and Municipal Relations to inquire whether
or not training and support are available to smaller agencies such as this
Municipality with respect to decision-making under the Part XX of the MGA.
Key Words: blanket denial, clearly, Councillor, divergent views, fairness,
FOIPOP Administrator, municipality, override, paving, petition, process,
public interest, public participation, purpose, responsible officer,
solicitor-client privilege, waiver.
Statutes Considered: Municipal Government Act, Part XX, ss. 462(b), 476,
486.
Case Authorities Cited: NS Review Reports FI-02-58, FI-05-08, FI-08-06,
FI-00-116, FI-00-29, FI-00-50, FI-07-27; BC Order 02-38; ON Orders P-944,
MO-2456; Peach v. Nova Scotia (Transportation and Infrastructure Renewal),
2010 NSSC 91; S. & K. Processors Ltd. v. Campbell Ave. Herring Producers
Ltd., [1983] B.C.J. 1499 (S.C.); Ontario (London Public Library Board), 2010
Can LII 10811; Harish v. Stamp (1979), 27 O.R.(2d) 395 (C.A.); R. v. Hobbs,
2009 NSCA 90; Ontario (Public Safety and Security) v. Criminal Lawyers'
Association, 2010 SCC 23; Knight's Minister Exploration & Co. v. Corcoran &
Co. 1993 Can LII 2728 (BCSC).
Other Cited: McNairn and Woodbury's Government Information, Access and
Privacy.
Cheers,
Mary Kennedy
Intake/Administration
Freedom of Information & Protection of Privacy
Review Office
Tel: (902) 424-4684
Fax: (902) 424-8303
Web: www.foipop.ns.ca
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