Much ado about unverified claims of legal privilege

The Supreme Court of Canada will be hearing an important appeal coming out of Alberta regarding freedom of information rights, and FIPA has applied to take part in the hearing as an intervenor.

The case began when the University of Calgary responded to a Freedom of Information request by refusing to release various records on the grounds they were covered by legal privilege. The serious  trouble started when the University not only refused to provide any information about why they thought these documents were privileged, and  also refused to let the Alberta Information and Privacy Commissioner’s office look at them. A judge refused to overturn the Commissioner’s production order for the records in question, but the Alberta Court of Appeal unanimously overturned that decision.

The issue in the Supreme Court appeal will be whether the Alberta FOI law (which is very similar to BC’s) allows the Commissioner to look at public bodies’ records to determine whether a claim of privilege has been made appropriately.

Solicitor-client privilege is meant to protect confidential communications between a lawyer and their client. This is important for encouraging people to make use of the legal system when it’s needed, and encourages open discourse between a person and their lawyer. But while we at FIPA agree that privilege is important, we are very concerned that its unchecked use can result in unjustified restriction of access to information or even abuse of the system.

We cited some examples of this phenomenon in our submission to the Special Committee reviewing BC’s FOI law. If the Commissioners are unable to take a look at the records bureaucrats claim are privileged, this will almost inevitably create a black hole where information will disappear without a trace, quite apart from genuine errors of judgement where the exception is improperly interpreted and applied.

Watch our website and Twitter feed for news on this important case, including links to our legal arguments.  The hearing is scheduled for the beginning of April, with a judgement expected sometime after that.

FIPA is grateful to be represented pro bono in this case by Michael Feder and Emily MacKinnon of McCarthy Tétrault.

Read more from the February 2016 Bulletin »