Any and all records personal and general concerning myself in the possession of any employee/branch of the Ministry of the Attorney General including Crown Attorney offices/personnel (i.e. Guelph, Kitchener, Cambridge, etc.).

The requester provided some examples of the types of records he was seeking, concluding:  “In short anything and everything the Ministry of the Attorney General’s office/personnel has even remotely pertaining/referring to me in specific or general”.

The Ministry also claimed that a number of records fell within the provisions of the Mental Health Act and were therefore excluded from the Act pursuant to sections 65(2)(a) and (b).

The Ministry also advised the requester that he could make a separate access request to the Waterloo Regional Police Service under the Municipal Freedom of Information and Protection of Privacy Act for all completed Crown briefs pertaining to him.

Finally, the Ministry informed the requester that records held by the Office of the Public Guardian and Trustee were the subject of a separate request and appeal, and would not be dealt with in this file.

Mediation did not resolve this appeal, and the file was transferred to the adjudication stage.

RECORDS:

The records remaining at issue are described in the revised index provided to the appellant by the Ministry.  The records disclosed by the Ministry during the course of this inquiry have been removed from the list. 

The remaining records include internal memoranda, notes, correspondence, subpoenas, court documents and other records relating to the criminal prosecutions involving the appellant and/or complaints made by the appellant alleging criminal conduct on the part of police and Ministry employees.

The following records remain at issue (adopting the numbering system used by the Ministry, as set out in the revised Mediator’s Report issued to the parties at the end of the mediation stage):

General principles

In order to determine which sections of the Act may apply, it is necessary to decide whether the record contains “personal information” and, if so, to whom it relates.  That term is defined in section 2(1) as follows:

“personal information” means recorded information about an identifiable individual, including,

(a)        information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,

(b)        information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

(c)        any identifying number, symbol or other particular assigned to the individual,

(d)       the address, telephone number, fingerprints or blood type of the individual,

(e)        the personal opinions or views of the individual except where they relate to another individual,

(f)        correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,

(g)        the views or opinions of another individual about the individual, and

(h)        the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual;

The list of examples of personal information under section 2(1) is not exhaustive.  Therefore, information that does not fall under paragraphs (a) to (h) may still qualify as personal information [Order 11].

To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed [Order PO-1880, upheld on judicial review in Ontario (Attorney General) v. Pascoe, [2002] O.J. No. 4300 (C.A.)].

Analysis and Findings

As the appellant’s request makes clear, he is seeking access to records about himself.  As such, his request was processed under Part III of the Act, and specifically section 47(1), which provides individuals with a right of access to information about themselves that is found in records in the custody or under the control of the Ministry.  By definition, any records identified by the Ministry as responsive to the request would contain the appellant’s “personal information”.  Having reviewed the various records that remain at issue here, I confirm that they do.

Some records also contain “personal information” of other identifiable individuals.  As the Ministry submits, and I concur, Records 2b, c, e-k, o, q-s, w-y, 3, 5a, d, e, f, r, s, and 6n-1 all contain “personal information” of various individuals that were compiled during the course of the police investigation and subsequent prosecution of charges laid against the appellant.  This “personal information” consists of the names and contact information for potential witnesses, the names of potential jurors, and information about certain individuals gathered in the context of the matter involving the appellant. 

DISCRETION TO REFUSE REQUESTER’S OWN INFORMATION/SOLICITOR-CLIENT PRIVILEGE

Section 47(1) of the Act gives individuals a general right of access to their own personal information held by an institution.  However, section 49 provides a number of exceptions to this general right, including section 49(a), which reads:

A head may refuse to disclose to the individual to whom the information relates personal information,

(a)                where section 12, 13, 14, 15, 16, 17, 18, 19, 20 or 22 would apply to the disclosure of that personal information.

The Ministry takes the position that all of the records, which formed part of certain Crown briefs, “were compiled in the course of and/or relate to police investigations into, and prosecutions of criminal charges laid against the appellant” and, as such, fall within the scope of litigation privilege, specifically Branch 2 of section 19.

In order to determine whether the records are exempt under section 49(a), I must first determine whether they qualify for exemption under section 19.

Solicitor-client privilege

Section 19 of the Act reads:

A head may refuse to disclose a record that is subject to solicitor‑client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.

Section 19 contains two branches.  The Ministry claims that the records qualify for exemption under both branches of section 19, but restricts its submissions to Branch 2.

Branch 2:  statutory privileges

Branch 2 is a statutory solicitor-client privilege that is available in the context of Crown counsel giving legal advice or conducting litigation.  Similar to Branch 1, this branch encompasses two types of privilege as derived from the common law:

• solicitor-client communication privilege

• litigation privilege 

The statutory and common law privileges, although not necessarily identical, exist for similar reasons.  One must consider the purpose of the common law privilege when considering whether the statutory privilege applies. 

The Ministry relies on the litigation privilege component of Branch 2 to support its position that the records are exempt from disclosure under section 19.  In this context, Branch 2 applies to a record that was prepared by or for Crown counsel “in contemplation of or for use in litigation.”

Statutory litigation privilege

Litigation privilege protects records created for the dominant purpose of existing or reasonably contemplated litigation [Order MO-1337-I; General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.)].

The purpose of this privilege is to protect the adversarial process by ensuring that counsel for a party has a “zone of privacy” in which to investigate and prepare a case for trial.  The privilege prevents such counsel from being compelled to prematurely produce documents to an opposing party or its counsel [General Accident Assurance Co.].

Courts have described the “dominant purpose” test as follows:

A document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection [Waugh v. British Railways Board, [1979] 2 All E.R. 1169 (H.L.), cited with approval in General Accident Assurance Co.; see also Order PO-2037, upheld on judicial review in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), [2003] O.J. No. 2182 (Div. Ct.)].

To meet the “dominant purpose” test, there must be more than a vague or general apprehension of litigation [Order MO-1337-I].

Where records were not created for the dominant purpose of litigation, copies of those records may become privileged if, through research or the exercise of skill and knowledge, counsel has selected them for inclusion in the lawyer’s brief [Order MO-1337-I; General Accident Assurance Co.; Nickmar Pty. Ltd. v. Preservatrice Skandia Insurance Ltd. (1985), 3 N.S.W.L.R. 44 (S.C.)].

The Ministry submits:

There is no temporal limit to the Brach 2, section 19 litigation privilege.  The Ontario Court of Appeal upheld the Divisional Court’s decision to strike down the limited interpretation of section 19 that had been previously applied by various Information and Privacy Adjudicators.  Writing for the Court, Justice Carthy stated that the common law temporal limit cannot be read in to the litigation privilege afforded to Crown counsel in section 19.  The Court stated:

The Minister [at the time of introducing the Act in the Legislature] appears to have thought that the words used in Branch 2 described the ambit of solicitor-client privilege and could be applied where there was no true client.  In fact those words describe the work product or litigation privilege which covers material going beyond solicitor-client confidences and embraces such items as are the subject of this proceeding, photographs and video gathered in the preparations for litigation. 

If we are assisted in any way by the context of this statement it is in knowing that the intent was to give Crown counsel permanent exemption.  Solicitor-client privilege for confidential matters does not come to an end.  The Ministry thought it was merely extending this privilege to Crown counsel and, thus, must have intended that it be permanent.  And that is the plain meaning of the words used in Branch 2.  The error made by the inquiry officer was in assuming the intent was to grant litigation privilege to Crown counsel and then reading in the common law temporal limit.  Neither the words of the Attorney General nor of the section 19 supports that approach [Ministry’s emphasis].  [Ontario (Attorney General) v. Big Canoe (2002), 62 O.R. (3d) 167 (C.A.)]

These records came into existence as a result of contemplated and actual litigation, i.e. the prosecution of the appellant on criminal charges and the appellant’s complaints of criminal conduct against police and Crown officials.  The records at issue are all part of the Crown brief.  They include confidential correspondence between Crowns, correspondence between Crowns and defence counsel, memos to file related to the prosecution, subpoenas, documents summarizing the evidence of and Crown witnesses and potential Crown witnesses, a list of potential jurors, etc.  The Ministry claims privilege for any and all records relating to the investigation and prosecution in respect of contemplated or actual litigation.

The Ministry submits that Branch 2 of section 19 is specifically designed to protect information prepared by or for Crown counsel in connection with proceedings being conducted by Crown counsel on behalf of the government that his claim has no temporal limit.  The Ministry submits that section 19 affords exemption to a wide range of materials obtained and prepared for litigation.

The appellant’s representations do not deal specifically with the requirements of Branch 2 of section 19.

In Order PO-2317, Adjudicator Donald Hale dealt with the application of section 49(a) in the context of a claim by the Ministry that records relating to an ongoing prosecution of the requester under the Criminal Code  met the requirements of the Branch 2 statutory litigation privilege.  After referring to Order PO-1999, in which he outlined the application of this exemption to records created in the context of a civil action taken against the province, Adjudicator Hale went on to conclude that Branch 2 applied to records contained in a Crown brief.  He stated:

The third category of records consist of those documenting the Crown/Police post-arrest contacts with the complainants and witnesses, as well as the Crown Attorney’s own research.  I find that these records were clearly created for the dominant purpose of litigation, to assist Crown counsel in the still-pending criminal litigation involving the appellant.  Accordingly, I find that these records clearly qualify under the litigation privilege aspect of Branch 2 of section 19.

Subject to my discussion of the impact of termination of litigation and waiver, which were not relevant in Order PO-2317, I have reached the same conclusion as Adjudicator Hale as far as the records at issue in this appeal are concerned.  As the Ministry points out, all of the records formed part of the Crown brief compiled for the purposes of prosecuting the appellant under the Criminal Code  and/or in defending allegations of criminal conduct on behalf of Crown counsel and police.  The dominant purpose of creating documents in this context was clearly for the purpose of existing or reasonably contemplated litigation, and as such, these records fall within the scope of litigation privilege.

Loss of privilege through termination of litigation

Termination of litigation does not negate the application of the Branch 2 statutory litigation privilege [Ontario (Attorney General) v. Big Canoe].

The Ministry submits that the common law principle of termination of litigation does not apply under Branch 2 in the criminal context:

… While the general principle in civil litigation is that privilege ends with the litigation for which the information was prepared, it is submitted that this general principle has no application to a criminal prosecution when construing section 19 of the Act.  While Crown counsel has an obligation at common law and under the Charter to disclose relevant facts to the accused, there are very specific practices around the disclosure of information which allows the Crown to maintain control of the records.  In this respect, the privilege is absolute.  The exemption in section 19, property interpreted, should reflect the general principle that there be no public access to Crown counsel’s litigation work product even after the termination of the criminal proceedings.

The records prepared by or for Crown counsel “in contemplation of or for use in litigation” in the criminal law context, by their very nature, deal with sensitive matters, and these matters continue to be sensitive after a prosecution is completed.  The release of this information would be contrary to the plain wording and express intent of section 19 to exempt such records from public access.  As stated by the Court of Appeal:

The broad intention of the Act is to offer transparency to government functioning with exceptions where the interests of public knowledge are overbalanced by other concerns.  In the present case, the requestor seeks assistance in a civil proceeding following a criminal prosecution concerning the same incident.  The purpose and function of the Act is not impinged upon by this request.  However, to open prosecution files to all requests which are not blocked by other exemptions could potentially enable criminals to educate themselves on police and prosecution tactics by simply requesting old files.  Among other concerns that come to mind are that witnesses might be less willing to co-operate of the police might be less frank with prosecutors.  [Ontario (Attorney General) v. Big Canoe]   [Ministry’s’ emphasis]

The Ministry continues:

The public nature of criminal prosecution, and its distinct nature from civil litigation, afford it distinct policy considerations.  Policy reasons for privilege in the criminal context necessarily include a public interest.  It is submitted that the maintenance of public cooperation with the justice system is an underlying policy reason.  The application of the common-law principle of termination of litigation would allow for disclosure of records that will harm the criminal justice system by hindering the investigation and preparation of future cases of this nature.  [Ministry’s emphasis]

            …

…  Not only could the release of the records in question discourage prospective witnesses from co-operating with the Crown and the police but Crown counsel could be hesitant to create records for fear that they might be released at some point in the future.  The administration of justice also requires that, in order to prosecute effectively, Crown counsel must have the assurance that their Crown briefs will remain confidential both during and after the prosecution is completed.

I accept the Ministry’s position.  As the Court of Appeal makes clear in Ontario (Attorney General) v. Big Canoe, the common-law rule that litigation privilege terminates when litigation is no longer real or reasonably contemplated does not apply to the statutory litigation privilege component of section 19.  The Ministry’s submissions on the reasons for this distinction between the common-law and statutory privileges are consistent with the Court’s direction.  It is also significant to note that the facts in Ontario (Attorney General) v. Big Canoe and the facts of the present appeal are similar.  They both deal with records originally created in the context of criminal investigations and prosecutions that have been completed, and both involve requesters seeking access to information about themselves that are no longer of any practical use in the criminal law context.  As the Ministry points out, and I concur, different considerations may be relevant in the context of civil litigation involving the Crown.

Accordingly, I find that the fact that the criminal investigations and prosecutions of the appellant as it relates to records in this appeal is no longer ongoing does not negate the application of the statutory litigation privilege in Branch 2 of section 19.

Waiver

The actions by or on behalf of a party may constitute waiver of privilege under either branch [Order P-1342]. 

Waiver of privilege is ordinarily established where it is shown that the holder of the privilege

• knows of the existence of the privilege, and

• voluntarily evinces an intention to waive the privilege

[S. & K. Processors Ltd. v. Campbell Avenue Herring Producers Ltd. (1983), 45 B.C.L.R. 218 (S.C.)]. 

Generally, disclosure to outsiders of privileged information constitutes waiver of privilege [J. Sopinka et al., The Law of Evidence in Canada at p. 669; see also Wellman v. General Crane Industries Ltd. (1986), 20 O.A.C. 384 (C.A.); R. v. Kotapski (1981), 66 C.C.C. (2d) 78 (Que. S. C.)].

Waiver has been found to apply where, for example

• the record was disclosed to another outside party [Order P-1342; upheld on judicial review in Ontario (Attorney General) v. Big Canoe, [1997] O.J. No. 4495 (Div. Ct.)]

• the communication was made to an opposing party in litigation [Order P-1551]

• the document records a communication made in open court [Order P-1551]

The Ministry states that no steps have been taken that would constitute waiver as it relates to the records remaining at issue in this appeal.  The Ministry submits:

… that Crown disclosure to an accused person, pursuant to its constitutionally mandated disclosure requirements, does not and cannot be held to constitute waiver in respect of the Crown’s section 19 claim.  It is clear that the Ministry does not waive privilege in respect of its records by virtue of complying with its disclosure obligations.  Any finding of waiver would be completely incompatible with the recognition that the Ministry retains control over records disclosed to the accused and/or his or her counsel.  This approach is to be contrasted with disclosure of records under the Act that is effectively disclosure to the world.

The Ministry refers to a number of judgments in support of this position [Ontario (Attorney General) v. Big Canoe;  R. v. Papageorgiou, [2003] O.J. No. 2282 (C.A.);  P. (D.) v. Wagg (2001), 61 O.R. (3d) 746 (Div Ct.);  and R. v. McClure (2001), 195 D.L.R. (4^th) 513 (S.C.C.)]

The appellant submits:

As to waiver, in an earlier file, the Crown had given documents to the lawyer who was supposed to be on my behalf in Kitchener which as far as I can see waived privilege.  The adjudicator saw differently.  I don’t see any purpose in arguing further.

I accept the Ministry’s submission on the issue of waiver.  It is clear from jurisprudence determined in the context of criminal law prosecutions that complying with the disclosure requirements stemming from the R. v. Stinchcombe decision of the Supreme Court of Canada [[1991] 3 S.C.R. 326] does not constitute waiver of litigation privilege.  In the circumstances of this appeal, it may well be the case that some or all of the records at issue were previously provided to the appellant in the context of different proceedings, in particular prosecutions under the Criminal Code .  However, that has no bearing on the right of access to these same records under the Act, nor does it constitute a waiver of privilege in the context of the Ministry’s claim that these records qualify for exemption under litigation privilege component of Branch 2 of section 19.

In summary, I find that all of the records fall within the scope of the statutory litigation privilege provided by Branch 2 of section 19, and that the fact that litigation involving the appellant has been completed and/or that some or all of the records may have been provided to the appellant in the context of the disclosure process involving this prior criminal litigation does not negate the application of the section 19 exemption claim.

EXERCISE OF DISCRETION

General principles

The section 49(a) exemption is discretionary, and permits an institution to disclose information, despite the fact that it could withhold it.  An institution must exercise its discretion.  On appeal, this office may determine whether the institution failed to do so.  In addition, this office may find that the institution erred in exercising its discretion where, for example:

• it does so in bad faith or for an improper purpose

• it takes into account irrelevant considerations

• it fails to take into account relevant considerations

If any of these circumstances are present, the matter may be sent back to the institution for an exercise of discretion based on proper considerations [Order MO-1573].  This office may not, however, substitute its own discretion for that of the institution [section 54(2)].

Relevant considerations

Relevant considerations may include those listed below.  However, not all those listed will necessarily be relevant, and additional unlisted considerations may be relevant [Orders P-344, MO-1573]:

• the purposes of the Act, including the principles that

○    information should be available to the public

○    individuals should have a right of access to their own personal information

○    exemptions from the right of access should be limited and specific

○    the privacy of individuals should be protected

• the wording of the exemption and the interests it seeks to protect

• whether the requester is seeking his or her own personal information

• whether the requester has a sympathetic or compelling need to receive the information

• whether the requester is an individual or an organization

• the relationship between the requester and any affected persons

• whether disclosure will increase public confidence in the operation of the institution

• the nature of the information and the extent to which it is significant and/or sensitive to the institution, the requester or any affected person

• the age of the information

• the historic practice of the institution with respect to similar information

The Ministry submits:

When exercising its discretion the Ministry took into account the following factors:  the safety concerns outlined above, with respect to the application of section 20;  the nature of the information contained in the records (details of a police investigation and a criminal prosecution, personal information about potential witnesses and jurors);  the negative impact upon the police’s ability to investigate a complaint and the Crown’s ability to prosecute a complaint if this type of information was released to the public;  and that the records contain personal information about persons other than the appellant.

In my view, the considerations outlined by the Ministry are appropriate factors consistent with a proper exercise of discretion.

In addition, the Ministry took certain actions during the course of responding to the request and participating in this appeal that demonstrate that it took into account relevant considerations in deciding how to deal with the various records.  Specifically:

-                      It disclosed a number of records to the appellant that could have been the subject of an exemption claim under section 49(a)/19.

-                      At the inquiry stage, the Ministry reconsidered its position with respect to records it had withheld to that point and provided some of them to the appellant.  In so doing, the Ministry stated:  “Although it is the Ministry’s position that it has a section 19 claim with respect to [the records being disclosed], it is exercising its discretion in consenting to their release”.

For all of these reasons, I find that there has been a proper exercise of discretion in this case, and all of the records that remain at issue in this appeal qualify for exemption under section 49(a), in conjunction with section 19 of the Act.

In light of this finding, I do not need to consider section 49(b) or the other section 49(a) exemption claims.

ADEQUACY OF SEARCH

Where a requester claims that additional records exist beyond those identified by the institution, the issue to be decided is whether the institution has conducted a reasonable search for records as required by section 24 of the Act [Orders P-85, P-221, PO-1954-I].  If I am satisfied that the search carried out was reasonable in the circumstances, I will uphold the institution’s decision.  If I am not satisfied, I may order further searches.

The Act does not require the institution to prove with absolute certainty that further records do not exist.  However, the institution must provide sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records [Order P-624].

The Ministry’s representations attach two affidavits sworn by the individuals who conducted searches for responsive records.  Both affidavits were disclosed to the appellant during the course of this inquiry.  After reviewing them, the appellant submits:

You already have my input on the ministries [sic] refusal to answer questions regarding transcripts the lawyer … insisted he gave to the Crown as well as their response to your own employees on that so I see no need to discuss further other than to state once again their refusal to divulge is in my opinion direction violation of statute.  I have earlier addressed any other concerns as well.

The affidavits submitted by the Ministry were sworn by Crown counsel working in the Waterloo and Guelph Regions at the time that criminal matters involving the appellant were active.  The Waterloo Crown swears that any records relating to the appellant were returned to the local police service upon completion of the criminal matter, in accordance with established practice.  The Guelph Crown explains that files relating to the appellant’s matter were retrieved from the Ministry’s Record Centre, reviewed in light of the scope of the request, and forwarded to the appropriate Ministry staff for processing under the Act.  The Guelph Crown also states that he/she was familiar with the appellant’s criminal matter, and was in a position to attest that there were no missing records in the retrieved file.

In my view, the Ministry has undertaken an adequate search for responsive records.  Searches were undertaken by appropriate Ministry staff at the request stage and again during the course of this appeal.  As stated earlier, the Ministry need not prove with absolute certainty that further records do not exist and, in my view, the explanations and sworn evidence provided by the Ministry is sufficient in the circumstances to satisfy the requirements of section 24 of the Act.

ORDER:

1.                  I uphold the Ministry’s decision to deny access to the remaining records.

2.                  I find that the Ministry has conducted an adequate search for records responsive to the request.

Original signed by:                                                                             September 16, 2004                

Tom Mitchinson