Access to information watchdog in court over attorney-client privilege

James McLeod
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Information and Privacy Commissioner Ed Ring was sitting at the back of a sweltering Supreme Court courtroom Thursday morning, listening to lawyers argue over whether Justice Valerie Marshall should review a document.

Ed Ring

Up until 2012, when the provincial government passed Bill 29 and limited the powers of the Office of the Information and Privacy Commissioner, it was Ring’s job to review these documents, but now, he has to bring a lawyer at taxpayers’ expense, and go to court, to fight against another lawyer from the Department of Justice, who is also paid by taxpayers.

The hearing took most of the morning.

“We’ve been in court on several issues,” Ring said. “This one, I believe, has been the shortest of all of them. Some have taken several days.”

Under normal circumstances, if somebody asks for something through the access to information system, and the government refuses to hand over the documents, the person can appeal to Ring’s office to review the request.

Ring can’t order documents to be released, but he can try to broker an informal resolution, and if that doesn’t work, he can write a report saying that the government properly withheld documents, or acted inappropriately.

But when it comes to certain kinds of documents — information that’s covered by cabinet secrecy or attorney-client privilege — Bill 29 changed the law so Ring isn’t allowed to review those documents. Instead, he has to go in front of a judge on behalf of an applicant, and ask the judge to do a review.

The lawyer representing the government said the case is pretty cut-and-dried. The applicant asked for a document relating to the proposed Outdoor Bill of Rights from 1999, and it’s clearly covered by solicitor-client privilege.

“It’s a single memo, and it’s a legal opinion,” the lawyer said.

On the other hand, Ring’s office argues that the act is worded to give government discretion to disclose legal advice if it chooses, and so it’s important for somebody to assess whether that discretion was properly exercised, and whether the public interest in seeing the document was considered.

Ring was clearly frustrated by having to go to court. He said in other cases that his office deals with, the informal back-and-forth with government departments often leads to an amicable solution, but that’s not possible if you have to go to court.

“What’s missing here when you go to court is the process that exists in the commissioner’s office,” he said.

“Seventy-five or 80 per cent of our cases are resolved informally.”

Marshall said she’ll deliver her ruling on reviewing the document at 10 o’clock this morning.



Organizations: Office of the Information, Department of Justice

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Recent comments

  • donna thistle
    July 18, 2014 - 07:25

    Two lawyers for half a day plus a judge, a privacy commissioner and all the required support staff plus expenses...Humm, I'd take a broad guess and say that cost $5000. Or more and does not include the preparation time. Bill 29... very expensive law created to billfold the public on a very expensive project. the cost of Musgrave Falls are many and some like these aren't even in the formula.