Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The City of Hamilton (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to: All letters and emails and other correspondence between the City of Hamilton (and the former Regional Municipality of Hamilton-Wentworth) and [a named consulting company] since June 1, 1998 regarding the potential air, noise, health and thermal dynamic impacts of the north-south section of the proposed Red Hill Creek Expressway in Hamilton, Ontario including draft reports prepared by [the named consulting company]. All letters and emails and other correspondence between the legal counsel of the City of Hamilton (and the former Regional Municipality of Hamilton-Wentworth) and [the named consulting company] since June 1, 1998 regarding the potential air, noise, health and thermal dynamic impacts of the north-south section of the proposed Red Hill Creek Expressway in Hamilton, Ontario including draft reports prepared by [the named consulting company]. The City located a number of records that it initially considered responsive to the request and granted access to some of them, in whole or in part. Access to other records, or parts of records, was denied on the basis that they contained information which was exempt under the following exemptions in the Act : relations with other governments – section 9; and solicitor-client privilege – section 12 The City also indicated that, although certain responsive records (comprising documents generated internally by the consultants and various sub-consultants) were in its possession, it did not maintain custody or control over these documents. It took the position, therefore, that these records are not subject to the Act . The requester, now the appellant, appealed the City’s decision. During the mediation stage of the appeal, the City provided an Index of Records to the appellant in which it indicated that it also intended to claim the application of the discretionary exemptions in sections 7(1) (advice or recommendations) and 11 (economic and other interests) and the mandatory exemption in section 10(1) (third party information) to some of the records. On September 16, 2003, the City also stated that it had identified an additional 120 pages of records beyond those originally located and provided a fee of $78.40 to the appellant representing the cost of preparing the records for disclosure and photocopying charges. The appellant paid the requested fee and access to some 337 pages of records was granted. In a further decision dated October 16, 2003, the City indicated that it also wished to rely on the mandatory exemption in section 14(1) (invasion of privacy) for portions of Record K50. The appellant stated that she wished to proceed with her appeal of the City’s decision to apply exemptions to the responsive records. She also advised that she is of the view that additional responsive records ought to exist beyond those identified by the City and that the records identified as “n/a” by the City are, in fact, within its custody or under its control and are subject to the Act . In addition, the appellant disputes the ability of the City to claim the application of the discretionary exemptions in sections 7(1) and 11 to the records as this claim was made past the deadline set in the Confirmation of Appeal sent to the City by the Commissioner’s office on April 14, 2003. Further mediation was not possible and the appeal was moved into the inquiry stage of the process. I decided to seek the representations of the City initially. The City provided its representations which were shared, in their entirety, with the appellant, along with a copy of the Notice of Inquiry. In its representations, the City withdrew its reliance on section 7(1) for Record E1-7 and sections 9 and 11 for Record B8-2. The City also indicated that Records B4-8, C-1.5, G-21 and I-14.1 are within its custody or control. As it has not claimed the application of any exemptions to these records, and no mandatory exemptions apply to them, I will order that they be disclosed to the appellant. I did not receive any response to the Notice of Inquiry from the appellant. DISCUSSION: CUSTODY OR CONTROL/RESPONSIVENESS OF RECORDS The City takes the position that a number of the records that it originally identified as being responsive to the request are not, in fact, within its custody or control and are not, accordingly, subject to the Act . It argues that: In conducting a search for responsive records the Red Hill Valley Project Group contacted the consultant requesting that they provide records responsive to the request for ‘all letters and emails and other correspondence between [the City’s emphasis] the City of Hamilton . . . and [the consultant] since June 1, 1998 to [the date of the request]. Instead of simply providing only responsive records, the consultants provided all [the City’s emphasis] of their records relating to the Red Hill project not solely the records between [the City’s emphasis] themselves and the City of Hamilton. In my review of the records with staff from the Red Hill Valley Project Group, records which did not meet the criteria of ‘letters and emails and other correspondence between the City of Hamilton’ and the consultants were identified in the record index which the City prepared as ‘n/a’, meaning not in the custody or control of the City. In hindsight, since the records did not meet the criteria of the request, the records should have been identified as ‘non-responsive’ and not included in the record index, rather than included in the record index and identified as ‘n/a’. . . . The City will maintain that the remaining records for which n/a was applied are not responsive to the request and that even though the City may have copies of the records, mere possession of a record does not constitute custody or control in all circumstances (Order 120). The City goes on to address a number of questions posed in the Notice of Inquiry respecting the considerations used by the Commissioner’s office in determining whether an institution has the requisite degree of custody or control over records. Section 24 of the Act imposes certain obligations on requesters and institutions when submitting and responding to requests for access to records. This section states, in part: (1) A person seeking access to a record shall, (a) make a request in writing to the institution that the person believes has custody or control of the record; (b) provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record; and . . . . . (2) If the request does not sufficiently describe the record sought, the institution shall inform the applicant of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1). Institutions should adopt a liberal interpretation of a request, in order to best serve the purpose of spirit of the Act . Generally, ambiguity in the request should be resolved in the requester’s favour [Orders P-134, P-880]. It has been well-established in previous decisions of the Commissioner’s office that in order to be considered responsive to the request, records must “reasonably relate” to the request [Order P-880]. In my view, the appellant’s request clearly ind
Decision Content
NATURE OF THE APPEAL:
The City of Hamilton (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to:
1. All letters and emails and other correspondence between the City of Hamilton (and the former Regional Municipality of Hamilton-Wentworth) and [a named consulting company] since June 1, 1998 regarding the potential air, noise, health and thermal dynamic impacts of the north-south section of the proposed Red Hill Creek Expressway in Hamilton, Ontario including draft reports prepared by [the named consulting company].
2. All letters and emails and other correspondence between the legal counsel of the City of Hamilton (and the former Regional Municipality of Hamilton-Wentworth) and [the named consulting company] since June 1, 1998 regarding the potential air, noise, health and thermal dynamic impacts of the north-south section of the proposed Red Hill Creek Expressway in Hamilton, Ontario including draft reports prepared by [the named consulting company].
The City located a number of records that it initially considered responsive to the request and granted access to some of them, in whole or in part. Access to other records, or parts of records, was denied on the basis that they contained information which was exempt under the following exemptions in the Act:
- relations with other governments – section 9; and
- solicitor-client privilege – section 12
The City also indicated that, although certain responsive records (comprising documents generated internally by the consultants and various sub-consultants) were in its possession, it did not maintain custody or control over these documents. It took the position, therefore, that these records are not subject to the Act.
The requester, now the appellant, appealed the City’s decision.
During the mediation stage of the appeal, the City provided an Index of Records to the appellant in which it indicated that it also intended to claim the application of the discretionary exemptions in sections 7(1) (advice or recommendations) and 11 (economic and other interests) and the mandatory exemption in section 10(1) (third party information) to some of the records. On September 16, 2003, the City also stated that it had identified an additional 120 pages of records beyond those originally located and provided a fee of $78.40 to the appellant representing the cost of preparing the records for disclosure and photocopying charges.
The appellant paid the requested fee and access to some 337 pages of records was granted. In a further decision dated October 16, 2003, the City indicated that it also wished to rely on the mandatory exemption in section 14(1) (invasion of privacy) for portions of Record K50.
The appellant stated that she wished to proceed with her appeal of the City’s decision to apply exemptions to the responsive records. She also advised that she is of the view that additional responsive records ought to exist beyond those identified by the City and that the records identified as “n/a” by the City are, in fact, within its custody or under its control and are subject to the Act. In addition, the appellant disputes the ability of the City to claim the application of the discretionary exemptions in sections 7(1) and 11 to the records as this claim was made past the deadline set in the Confirmation of Appeal sent to the City by the Commissioner’s office on April 14, 2003.
Further mediation was not possible and the appeal was moved into the inquiry stage of the process. I decided to seek the representations of the City initially. The City provided its representations which were shared, in their entirety, with the appellant, along with a copy of the Notice of Inquiry. In its representations, the City withdrew its reliance on section 7(1) for Record E1-7 and sections 9 and 11 for Record B8-2. The City also indicated that Records B4-8, C-1.5, G-21 and I-14.1 are within its custody or control. As it has not claimed the application of any exemptions to these records, and no mandatory exemptions apply to them, I will order that they be disclosed to the appellant. I did not receive any response to the Notice of Inquiry from the appellant.
DISCUSSION:
CUSTODY OR CONTROL/RESPONSIVENESS OF RECORDS
The City takes the position that a number of the records that it originally identified as being responsive to the request are not, in fact, within its custody or control and are not, accordingly, subject to the Act. It argues that:
In conducting a search for responsive records the Red Hill Valley Project Group contacted the consultant requesting that they provide records responsive to the request for ‘all letters and emails and other correspondence between [the City’s emphasis] the City of Hamilton . . . and [the consultant] since June 1, 1998 to [the date of the request].
Instead of simply providing only responsive records, the consultants provided all [the City’s emphasis] of their records relating to the Red Hill project not solely the records between [the City’s emphasis] themselves and the City of Hamilton.
In my review of the records with staff from the Red Hill Valley Project Group, records which did not meet the criteria of ‘letters and emails and other correspondence between the City of Hamilton’ and the consultants were identified in the record index which the City prepared as ‘n/a’, meaning not in the custody or control of the City. In hindsight, since the records did not meet the criteria of the request, the records should have been identified as ‘non-responsive’ and not included in the record index, rather than included in the record index and identified as ‘n/a’.
. . .
The City will maintain that the remaining records for which n/a was applied are not responsive to the request and that even though the City may have copies of the records, mere possession of a record does not constitute custody or control in all circumstances (Order 120).
Section 12 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 counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation.
Section 12 contains two branches as described below. The City must establish that one or the other (or both) branches apply.
Branch 1: common law privileges
This branch applies to a record that is subject to “solicitor-client privilege” at common law. The term “solicitor-client privilege” encompasses two types of privilege:
- solicitor-client communication privilege
- litigation privilege
The City takes the position that the records contain confidential solicitor-client communications, thereby qualifying for exemption under that aspect of section 12.
Solicitor-client communication privilege
Solicitor-client communication privilege protects direct communications of a confidential nature between a solicitor and client, or their agents or employees, made for the purpose of obtaining or giving professional legal advice [Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 (S.C.C.)].
The rationale for this privilege is to ensure that a client may confide in his or her lawyer on a legal matter without reservation [Order P-1551].
The privilege has been found to apply to “a continuum of communications” between a solicitor and client:
... the test is whether the communication or document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communications and meetings between the solicitor and client ... Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as “please advise me what I should do.” But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context [Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.), cited in Order P-1409].
Confidentiality is an essential component of the privilege. Therefore, the institution must demonstrate that the communication was made in confidence, either expressly or by implication [General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.)].
Branch 2: statutory privileges
Branch 2 is a statutory solicitor-client privilege that is available in the context of institution 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.
Statutory solicitor-client communication privilege
Branch 2 applies to a record that was “prepared by or for counsel employed or retained by an institution for use in giving legal advice.”
The City’s representations