Library and Archives Canada (Re), 2022 OIC 51
The complainant alleged that Library and Archives Canada (LAC) improperly withheld information under section 23 (solicitor-client privilege) of the Access to Information Act, concerning regulations under the Food and Drugs Act and related litigation. The Information Commissioner found that the withheld information did meet the requirements for solicitor-client privilege. However, LAC failed to demonstrate that it had reasonably exercised its discretion in deciding whether to disclose the information, as it did not provide evidence of considering all relevant factors for and against disclosure. The Commissioner noted that the records were nearly 90 years old and had historical significance, suggesting that exceptional circumstances might exist to warrant disclosure. Consequently, the Commissioner ordered LAC to re-exercise its discretion, taking into account all relevant factors, including the age and historical significance of the records. LAC agreed to implement the order.
- 1Whether the information met the requirements of s.23 ATIA (solicitor-client privilege)
- 2Whether the communications were between a lawyer/notary and client
- 3Whether the communications related to seeking or giving legal advice
- 4Whether the parties intended the communication to remain confidential
- 5Whether there was an implied waiver of solicitor-client privilege due to prior disclosure
- 6Whether there was a selective waiver of privilege
- 7Whether LAC reasonably exercised its discretion to disclose the information under s.23 ATIA
- 8Whether LAC considered all relevant factors for and against disclosure
- Solicitor-client privilege: Exemption upheld
- Discretionary disclosure: Improper exercise of discretion
- Order implementation: Institution agreed to implement
Complaint well founded — re-exercise of discretion ordered
While the information met the criteria for solicitor-client privilege under s.23, Library and Archives Canada failed to demonstrate that it had reasonably exercised its discretion in deciding whether to disclose the information, as it did not provide evidence of considering all relevant factors, including the age and historical significance of the records.
The Minister of Canadian Heritage is ordered to re-exercise discretion to decide whether to disclose the information to which section 23 was applied, taking into account all relevant factors for and against disclosure, including those identified in the report.
- s.23 ATIA
- s.36.1(1) ATIA
- s.37(4) ATIA
This summary is for informational purposes only and does not constitute legal advice.
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