Explainer: Solicitor-client privilege often stymies the release of public records, and that may be a problem by James Wood, May 28, 2017, Calgary Herald
At the centre of recent issues around access to information in Alberta is the concept of solicitor-client privilege. While there are differing opinions around the issue, there is one area of agreement — it’s complicated.
What is solicitor-client privilege?
It’s the principle that protects communications between a lawyer and his or her client from being disclosed except with the permission of the client. In Canada, Supreme Court decisions have elevated it to a constitutional right protected under the Charter of Rights and Freedoms. Under Alberta law, solicitor-client privilege is one of the reasons a public body can refuse to disclose documents.
What’s the problem?
In the past, the province’s information and privacy commissioner had the ability to access documents in which privilege has been claimed to determine whether it actually applied. In 2008, then-justice minister Alison Redford affirmed that right. In recent years, though, commissioner Jill Clayton says public bodies have begun to refuse to provide documents to the commissioner’s officer when solicitor-client privilege has been asserted.
In 2013, the Court of Queen’s Bench upheld the commissioner’s right to review the documents in a case involving the University of Calgary and a fired employee seeking access to unredacted records. Two years later, however, the Alberta Court of Appeal ruled that the law was too unclear.
“To abrogate solicitor-client privilege, statutory language must be clear, unequivocal and unambiguous,” Justice Russell Brown said.
The ruling also effectively stalled a separate investigation by Clayton’s office into political interference by the former Progressive Conservative government begun in 2014. She had tried to compel production of documents from 13 departments that had invoked solicitor-client privilege, but was refused.
What did the top court decide?
In 2016, the Supreme Court upheld the Court of Appeal decision, noting that provincial legislation that gives the commissioner the right to compel production of records despite “any privilege of the law of evidence” is not sufficient. (The court also ruled that it was not appropriate for Clayton to have exercised her powers to order production in the U of C situation in any case.)
The Supreme Court decision was hailed by many legal groups as an important validation of solicitor-client privilege.
But Clayton and other officials are concerned that lawyers for public bodies could either inadvertently or intentionally improperly claim solicitor-client privilege as a means of protecting the records from public disclosure.
What does the information and privacy commissioner want?
Clayton has asked the government to amend the legislation to explicitly give her office the power to order documents to ensure solicitor-client privilege is being properly asserted.
About 80 cases currently before her office are affected by the Supreme Court decision.
Clayton notes that in most cases, the commissioner does not have to actually view the content of the records themselves to determine whether solicitor-client privilege is in effect.
How has the government responded?
The NDP has been non-committal so far on Clayton’s request for legislative changes, though it notes the issue is under review. Justice Minister Kathleen Ganley has directed government officials to claim solicitor-client privilege sparingly. But she noted that waiving privilege entirely could cause problems, citing examples such as cigarette companies using the freedom of information process to try to access documents in the government’s tobacco lawsuit. However, all the opposition parties say they would amend the legislation as requested by Clayton. [Emphasis added]
Alberta’s privacy czar ‘fearful’ NDP won’t fix flawed Freedom of Information law by James Wood, May 28, 2017, Calgary Herald
More than a month after the release of a report raising alarm over government secrecy, information and privacy commissioner Jill Clayton is disappointed and frustrated with the lack of action by the NDP to ensure Albertans have proper access to government information.
Clayton’s office issued a scathing report in April that outlined how an investigation into possible political interference in the access to information process that was launched under the former Progressive Conservative government had been “bottlenecked.”
She said her office faced an “unprecedented” situation that saw 800 pages of records provided by the province fully or partially redacted due to claims of “privilege” and a government lawyer representing each of the departments’ freedom of information co-ordinators, which further slowed the process.
The activities started under the PC administration but continued after the NDP took office in May of 2015, despite Clayton raising her concerns with the minister’s office.
The commissioner has also been hindered by a November 2016 Supreme Court ruling that the wording of current provincial legislation does not give her the power to compel public bodies to produce records for her office to review when solicitor-client privilege has been claimed.
“It’s easier said than done when it comes to any work.” — Justice Minister Kathleen Ganley
In a separate report, Clayton has called on the NDP government to amend the legislation to give her office that capacity — a power that had long been recognized by the province until recent years — but the province has given no signal on how it will proceed.
The situation has left her concerned she is unable to fully perform her duties
“I am fearful that nothing’s going to happen,” Clayton said in a recent interview. [The Tory NDPs will do nothing to give power over the oil and gas industry to Albertans harmed by that industry. Alberta’s Betrayal Party, the NDP, have no courage, no integrity, no ethics and no morals]
“It’s impossible to imagine how citizens can hold a government to account, how they can engage fully in a democracy, if they’re not able to get information, and a big piece of that is to have independent, objective and effective oversight.”
Clayton acknowledges she expected better from the NDP when the Notley government took office, noting the political interference probe was prompted in part by complaints from the New Democrats when they were in opposition.
“I thought that with a change of government, perhaps we would see a different approach. I think I can say that, yes, I was surprised that that did not happen,” she said.
The most recent issues raised by Clayton follow reports she issued in February warning of “unacceptable” delays in processing information requests and a “lack of respect” for access to information among some senior officials within the civil service.
The government has responded by hiring more staff to deal with information requests from the public, media and opposition parties, which have skyrocketed in recent years.
Justice Minister Kathleen Ganley said in a recent interview that there are concerns about how Clayton’s investigation into political interference was dealt with by the government.
Ganley said she didn’t believe officials were intentionally trying to impede the investigation but that may have been the effect. [In what closet does Ganley live?]
She said there is nothing inherently wrong with a lawyer working with freedom of information co-ordinators, but there is an issue if those officials did not want to be represented by a government lawyer.
Ganley said she has also directed officials to be much more cautious in terms of claiming solicitor-client privilege over documents to keep them out of the commissioner’s hands.
But the minister is reluctant to waive privilege entirely and is non-committal on whether the legislation will be amended to meet Clayton’s request.
The legislation, as well as a broader review of policy and practises around information and privacy, are in the hands of Service Alberta Minister Stephanie McLean.
Ganley said that despite Clayton’s exasperation, the NDP does respect the commissioner’s role and her concerns.
“Her function is incredibly important. Her desire to push the government and to make sure things are as open and transparent as possible is really good. I think that has a positive and beneficial effect for all Albertans,” said Ganley.
“We are taking steps. Obviously we disagree about whether the speed of those steps is sufficient.”
McLean said the government is making progress in areas such as turnaround times for access requests and she is hoping to introduce “substantial changes” this year.
“It’s easier said than done when it comes to any work,” she said of the time taken by the government to address the issue.
“There’s certainly a transition time when you’re on the inside of the walls to find out what’s actually going on . . . to make swift changes without having a good understanding of the issue would be irresponsible.”
The province’s opposition parties are united, however, in backing a change to legislation as called for by Clayton.
Wildrose house leader Nathan Cooper is skeptical the government will move forward to address the ongoing issues.
“We’ve seen them talk a lot about trying to take steps to rectify the FOIP and the access to information system but . . . I would expect to continue to see a lack of true action on this important file,” said Cooper.
“There’s a combination of not actually wanting to be open and transparent and not being prepared enough to get these things done in an expeditious way.”
Clayton said she’s not giving up on the NDP improving the system.
She praised the government for hiring additional staff and for Ganley’s direction to officials around privilege.
But more is needed, said Clayton, and not just legislative changes, but fostering a culture of openness within government ranks.
“That’s not something that changes overnight but it has to come from the premier, from the ministers, from the senior civil servants. You can have the strongest legislation in the world . . . but there are endless ways to thwart the legislation no matter how it’s written.” [Emphasis added]
An example of such thwarting trickery:
May 10 2012: After an official inquiry resulted in the Information and Privacy Commissioner ordering the Alberta Research Council to release the public baseline water well testing data and other public records (none of which involved the Ernst water well) they had inappropriately withheld and inappropriately used to dismiss Alberta drinking water contamination cases, the Council refused. It’s impossible to submit the Council reports for peer-review without the public data they used.
They claimed Alberta Environment’s lawyer had the records. Did the Research Council lie? Ernst tried to get the records from Alberta Environment via FOIP – they claimed they did not have them, the Research Council did.
The Council claimed Alberta Environment was using “client-solicitor privilege” to withhold the withheld records (Ernst had been trying to get the records since 2008). Did the Council lie about that too?
The Research Council and Alberta Environment (and Encana in document exchange with Ernst for her lawsuit!) refusing to release public water well testing records is extremely suspicious.
What are they hiding?
Alberta Environment, via Alberta “Justice,” even has the nerve to lie in their Statement of Defence about these withheld records:
27. On or about June 1, 2007 the Province had made concrete plans for further
testing of the Plaintiff’s well. Sampling was eventually completed and the Province’s
data was provided to ARC for analysis. The Province provided its entire investigation
file to ARC to facilitate this independent analysis and did not withhold any
documentation as alleged by the Plaintiff. ARC concluded that findings could not be
linked to CBM activity. ARC arrived at its own conclusions in this regard and said
conclusions were not influenced by, nor directed by, input from the Province, in
contradiction to allegations made by the Plaintiff in the Claim. Analytical results from ARC were provided by the Province to the Plaintiff. [Emphasis added]
13. In reply to paragraph 27 of the Statement of Defence, and in particular the allegation that “analytical results from ARC were provided by the Province to the Plaintiff’, the Plaintiff pleads and relies on paragraph 74(d) & (e), and further pleads that the province has refused repeated requests by the Plaintiff dating back to March 19, 2008 to disclose the data that was relied on as part of the ARC review, including data on the gas and water wells in the areas of reported contamination. The Plaintiff has attempted to access this data through access to information requests, and has obtained some records, but the most important data has been withheld by the
ARC. The Office of the Information and Privacy Commissioner of Alberta ordered ARC to provide the records requested, but ARC has responded by saying that they no longer have the records in question as they returned them to Alberta Environment. Alberta Environment, for its part, has refused to release the documents, claiming that they are privileged based on the existence ofthis litigation. As a result of Alberta Environment’s refusal to disclose the data on which the ARC review was based, Alberta Environment has made it impossible for the ARC reports to be subject to peer review and other independent analysis. [Emphasis added]