Privilege and the Public Interest

 British Columbia (Children and Family Development) v. British Columbia (Information and Privacy Commissioner), 2024 BCCA 190

In response to a freedom of information application, the Ministry asserted solicitor-client privilege over a set of documents. Section 14 of FIPPA says that the responsible minister "may" refuse to disclose privileged documents.

The applicant relied on s.25 of FIPPA to claim that the documents should be produced regardless of whether or not they were privileged. Section 25 reads in part:

1) Whether or not a request for access is made, the head of a public body must, without delay, disclose to the public, to an affected group of people or to an applicant, information ... the disclosure of which is, for any other reason, clearly in the public interest.
2) Subsection (1) applies despite any other provision of this Act.

The adjudicator found that the documents were privileged, and ordered the Ministry to produce the documents under s.44 of FIPPA so that the public interest claim could be assessed. Section 44 reads in part:

For the purposes of conducting an investigation or an audit under section 42 or an inquiry under section 56, the commissioner may make an order requiring a person to do either or both of the following:… (b) produce for the commissioner a record in the custody or under the control of the person, including a record containing personal information.

On judicial review, the Supreme Court agreed that s.44 empowered the adjudicator to require production of privileged information to assess the s.25(1) public interest claim.

On appeal, the BCCA squarely rejected the positions taken below, first holding that s.44 can't be used as a general investigative tool by the Commission:

"There is no freestanding power [under s.44] to investigate whether documents that are said to be privileged should be disclosed in the public interest except, arguably, for the purpose of determining whether an assertion of privilege by a public body for the purpose of reliance on the s. 14 disclosure exception is well‑founded. "

The BCCA also specifically rejected the argument that s.25 abrogated privilege:

With respect, I would not read into s. 25 of FIPPA the public interest override of solicitor‑client privilege described by the chambers judge. The provision, considered in its full context, does not contain the clear, explicit and unequivocal language required to evince unambiguous legislative intent to override solicitor‑client privilege. Therefore, s. 25 does not compel public bodies to disclose information which is subject to the privilege.

The BCCA distinguished the SCC's decision in University of Calgary, applying the analogous section in Alberta's freedom of information legislation.

For the BCCA, it was important that the Alberta legislation required disclosure "despite .. any privilege of the law of evidence," which the SCC held was sufficient evidence of legislative intent to abrogate privilege.

The BCCA distinguished Section 25(2), which required disclosure "despite any other provision of [FIPPA]" on the basis that s.14 merely gave to a minister the option of refusing to disclose privileged records, but did not, in itself, create any privilege:

The statutory provision said to override solicitor‑client privilege in this case, s. 25(2) of FIPPA, says simply that the statutory obligation contained in s. 25(1), which requires the head of a public body to disclose information, the disclosure of which is clearly in the public interest, “applies despite any other provision of this Act”. In my view, that provision is no more unambiguous than that considered in University of Calgary. It is not a direct reference to the substantive rule recognized in s. 14 of FIPPA. It is not a more specific reference to solicitor‑client privilege than the reference to “any privilege of the law of evidence”. Nor, in my view, can it be read as [the applicant] contends: as a reference to “the whole and not a part of solicitor‑client privilege”. In interpreting s. 25, an inference is still necessary in order to extend the ambit of the provision so as to abrogate solicitor‑client privilege. The principle of interpretation described in Blood Tribe and applied in University of Calgary is applicable here: “legislative language that may (if broadly construed) allow incursions on solicitor‑client privilege must be interpreted restrictively. The privilege cannot be abrogated by inference”.

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