3216-01562 — Crown-Indigenous Relations and Northern Affairs Canada

The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) improperly withheld records under section 23 (solicitor-client and litigation privilege) of the Access to Information Act. The request sought records from the 1850s to 1980 related to land ownership, sale, reversion, or return on the Bruce/Saugeen Peninsula. CIRNAC initially claimed solicitor-client privilege but later conceded it did not apply, then reversed course to maintain section 23 based on litigation privilege, citing ongoing court cases. The Information Commissioner found that CIRNAC failed to establish that the records were subject to litigation privilege, specifically that they were produced or gathered for the dominant purpose of the cited litigation. The Commissioner recommended full disclosure of the records. CIRNAC refused to implement the recommendation, asserting the information remained protected by litigation privilege. The complaint was found to be well founded.