Access To Information And Privilege: The Saga Continues

The Alberta Court of Queen's Bench has provided some much needed guidance on solicitor-client privilege in the context of access to information requests in Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2020 ABQB 10 [EPS].

The Alberta Freedom of Information and Protection of Privacy Act [FOIPPA] provides individuals with the right to seek access to records in the custody and control of public bodies. Public bodies regularly receive access requests that encompass records containing privileged information. FOIPPA allows public bodies to exercise their discretion to withhold privileged records. The public body's decision to withhold records may be reviewed by the Alberta Information and Privacy Commissioner (IPC).

In 2016, the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 made it clear that public bodies are not required to provide the IPC with a copy of the privileged records under review. However, the Court did not provide much additional guidance on how a public body is to establish privilege before the IPC. In the following years, a number of judicial review applications have been heard in Alberta involving claims of privilege before the IPC, but most were short decisions where the court essentially reviewed the records over which privilege was claimed and made findings on whether the records were properly withheld.

EPS dealt with a two judicial review applications which were consolidated as they involved substantially similar issues. At the heart of the applications were two Crown legal opinions that were provided to the EPS. The IPC Adjudicator found that the opinions were not protected by solicitor-client privilege. Aside from finding that the Adjudicator had erred in concluding that no solicitor-client relationship had formed between the Crown and the EPS, Justice Renke makes a number of other findings in EPS that will have direct bearing on public bodies and organizations as they respond to access to information requests.

The Standard of Review

The Adjudicator's findings with respect to whether a public body properly withheld records based on solicitor-client privilege, are reviewed on a standard of correctness. Solicitor-client privilege has wide legal implications beyond the boundaries of FOIPPA, and limits on privilege are an issue of central importance to the legal system as a whole. Despite the fact that the Adjudicator is often making...