FIPA is working to support the efforts of IndigiNews. This Government’s actions to suppress access to information continue to impact press freedom and the ability of the public to hold elected officials accountable. You can contact IndigiNews for comment or to provide support by contacting them directly via email to: stories @ indiginews.com .
The BC Court of Appeal recently found that the public interest paramountcy clause under s. 25 of the Freedom of Information and Protection of Privacy Act (FIPPA) does not override the application of the solicitor-client privilege exemption. The ruling in British Columbia (Children and Family Development) v. British Columbia (Information and Privacy Commissioner), 2024 BCCA 190, while insightful, raises concerns about access to information rights.
In 2020, IndigiNews made an access to information request to the Ministry of Children and Family Development (MCFD) for all records related to birth alerts. In the past, MCFD has issued birth alerts when they were concerned a newborn baby would be at risk; Indigenous mothers were disproportionately affected by birth alerts due to systemic racism. In response to the IndigiNews request, MCFD denied disclosure of certain records due to solicitor-client privilege.
Following MCFD’s disclosure denial, IndigiNews made a complaint to the Office of the Information and Privacy Commissioner for BC (OIPC). In 2022, the OIPC ordered MCFD to disclose the solicitor-client privileged records so the OIPC could decide whether the records should be disclosed in the public’s interest. MCFD then applied for judicial review of the OIPC’s decision. The initial court ruling (British Columbia (Children and Family Development) v. British Columbia (Information and Privacy Commissioner), 2023 BCSC 1179) found in favour of the OIPC. However, MCFD was unsatisfied, which subsequently led to this appeal.
The Minister and MCFD fought and won the right to maintain the ability to make unilateral and autocratic decisions about disclosure without independent review. This means they can continue to maintain the secrecy of their records at their discretion.
In this case, the public body itself was the only party that determined whether the public’s interest should prompt the disclosure of the privileged records. These records could potentially expose the legal risks and benefits of maintaining, denying, or underreporting on a discriminatory birth alert system that disproportionately affects Indigenous Peoples. The Minister employed the weight of government lawyers to both suppress the public’s right to know and apply a discretionary exemption undermining research of a local Indigenous news outlet.
“There are serious concerns about government oversight,” states FIPA Executive Director Jason Woywada. “These types of court actions and rulings undermine the ability for the public to trust and verify the decisions of public bodies.”
The Court wrote that the OIPC may be “presumed to be an advocate for disclosure”. However, just as the Court presumes the Commissioner is an advocate for disclosure, a public body may be considered an advocate for non-disclosure. The ruling has effectively stripped the OIPC’s ability to review privileged documents when determining if the public interest warrants consideration during an assessment of a filed complaint. The ruling undermines the independent role of the OIPC and its ability to manage sensitive information by conflating the disclosure of information to the OIPC, for the purposes of oversight and adjudication, with wholesale disclosure to the public.
The removal of the Commissioner as potential oversight in this case strips away the possibility of trusting but verifying decisions. With declining trust in public institutions, the ruling highlights how the public’s interest remains subservient to vested interests, with no tools to verify the statements being made by public bodies. The OIPC’s ability to conduct independent review of complaints is undercut if public bodies can utilize solicitor-client privilege as a shield; the possibility of bad faith assertions of privilege necessarily require independent oversight.
The ruling once again illustrates the justice system’s failure to respect or consider the principles of Indigenous self-determination and reconciliation. It continues to enable the head of a public body to hide information from Indigenous Peoples that could be used to hold public bodies accountable and to enable their data sovereignty (as encoded in BC by the Declaration on the Rights of Indigenous Peoples Act).
The ruling has highlighted that the public interest is not paramount, and this government will act to ensure it is subservient to their need for secrecy. The decision was silent on the public body’s role regarding non-disclosure while also limiting the Commissioner’s ability to investigate complaints. Consequently, in this case, the disclosure of privileged information was left to the sole discretion of the public body.
There is a clear need for law reform following this ruling. For FIPPA to be effective, it requires a legislative review that modernizes the Act. This would include, but is not limited to:
An important question in this election year will be: “What will your candidates and parties commit to do to improve government accountability and transparency to address these issues?”
Those filing information requests should remember that the ruling maintains the arbitrary discretion and power of a public body to apply exclusions, which limits the power of the Commissioner to review or overturn requests. For people making a complaint to the OIPC about their requested records being excluded, in certain circumstances a full review of information by the Adjudicator can no longer occur. A full review of records by the OIPC can only be enabled when a complaint leads to an inquiry, investigation, or audit.
Solicitor-client privilege is a foundational legal principle and undoubtedly deserves respect; however, legislators and the court must allow for a balance between solicitor-client privilege and the public interest such that information can be disclosed for review when doing so is clearly in the public’s interest. Otherwise, it is likely that the public’s trust in the transparency and accountability of our public institutions will continue to be eroded.