Each year, the Ministry sends summary nomination materials for all nominees to the Council.  The Council then reviews the summary materials, and decides which nominees for whom it would like to receive complete nomination information.  The Ministry then provides Council with the complete nomination packages for these individuals.  The Council then, through a voting process, develops a “short list” of those individuals the Council believes have the greatest merit for appointment.

The Council then sends the list to Cabinet, which then decides which of the short listed nominees to appoint.  The appointments are made by order in council, and are then notified by letter and telephone of their appointment.

Later, the awards are presented to the recipients at an investiture ceremony.

Between 1997 and 2002, the average number of recipients per year is 24.

The appellant’s story

The appellant is an official with a human rights organization. 

On April 25, 2002, an individual sent a form to the Secretariat nominating the appellant for The Order of Ontario.

On December 18, 2002, the Lieutenant Governor issued an Order in Council appointing a list of 24 individuals to The Order of Ontario.  The appellant was not included in the list.

On December 19, 2002, the Lieutenant Governor wrote to the appellant stating:

. . . I offer my congratulations on your appointment as a member of The Order of Ontario.

.  .  .  .  .

NATURE OF THE APPEAL:

The appellant made a request under the Freedom of Information and Protection of Privacy Act (the Act) to the Ministry of Citizenship (the Ministry) for access to records relating to her nomination.

In response, the Ministry located 42 responsive records, and advised the appellant that it believed some of the information in the records may be exempt under section 21, and that it would notify affected persons before reaching a final access decision.

The Ministry then notified 15 affected persons of the request, seeking their views on disclosure.  In response, six affected persons consented to disclosure of their information, two consented to disclosure of their information except for their personal identifiers, three advised that they did not consent to disclosure, and four did not respond. 

The Ministry then issued its final decision, in which it granted access in full to some records, partial access to other records, and no access to the remaining records.  The Ministry cited the exemptions for Cabinet records (section 12), advice to government (section 13), solicitor-client privilege (section 19) and personal privacy (section 21) as its authority to withhold information.

The appellant appealed the Ministry’s decision to this office.

During the mediation stage of the appeal, the appellant narrowed the scope of her appeal to exclude certain records to which the Ministry had denied access under section 21.  Also during the mediation stage, the appellant asked the Ministry to waive the applicable fee of $16.40 (for photocopies), and the Ministry refused.

Mediation was not successful in resolving the issues in the appeal and the matter was streamed to the adjudication stage of the process.

I initiated the inquiry by sending a Notice of Inquiry to the Ministry, and I received representations in response.  I then sent the Notice and the Ministry’s representations to the appellant, who in turn provided representations.

In its representations, the Ministry indicates that it is willing to disclose Record 7B in full to the appellant.  I will order the Ministry to disclose this record.

RECORDS

The 15 records at issue in this appeal are described in the appendix attached to this order.

DISCUSSION:

SOLICITOR-CLIENT PRIVILEGE

General principles

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.

The Ministry takes the position that section 19 applies to 13 of the 15 records at issue.  It claims this exemption for all of Records 3, 4A, 4B, 7A, 8, 12 and 13 and for portions of Records 7E, 14, 15, 19, 20 and 27A.  Specifically, the Ministry claims the application of common law 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 applies to “a continuum of communications” between a 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 [Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.)].

The privilege may also apply to the legal advisor’s working papers directly related to seeking, formulating or giving legal advice [Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27].

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.)].

Representations

The Ministry begins by explaining why it takes the position that the records for which it claimed section 19 consist of confidential communications:

. . . [A]ll records at issue are confidential.  The confidential nature of the records is express in some instances.  In others it is implied from the context.  In general, e-mail communications fall into the latter category.  Ministry legal counsel and Ministry clients routinely communicate by way of e-mail.  Both sender and receiver would understand exchanges about on-going legal matters to be completely confidential in nature, whether or not the message was expressly marked confidential. This is supported by the practice of circulating e-mail among only those individuals on a need to know basis; these persons include the “client” group (which may vary) and other necessary Ministry staff e.g., support staff.

The records are contemporaneous, all falling within the period of late October 2002 to January 2003.  In terms of subject matter, the records are concerned with appointments to The Order of Ontario for the year 2002 or the appellant’s situation.

The Ministry then describes each record in detail, and explains why it believes it is privileged:

Record 3

Page 1 is an e-mail from Ministry legal counsel to his Ministry client the Ontario Honours and Awards Unit (“OHAU”).  The e-mail confirms OHAU instructions to him, indicates that the documents referred to have been sent to the client, and outlines the process for approving the documents.

Pages 2-7 are a draft order in council for The Order of Ontario of 2002 prepared by Ministry legal counsel.  The order in council sets out the recipients (including their biographies) recommended by the Advisory Council for the 2002 award pursuant to the scheme provided for in O.C. 2298/2001.  Counsel’s signature, found at page 3, provides written confirmation of his opinion as to the existence of legal authority for the Lieutenant Governor in Council to make the order.

The Ministry’s position is that this record falls within the common law solicitor- client privilege for these reasons:  it constitutes a direct communication between solicitor and client; and it concerns the giving of legal advice with respect to the instrument necessary to give legal effect to The Order of Ontario in accordance with O.C. 2298/2001.

The order in council also represents working papers directly related to seeking, formulating or giving legal advice as per Susan Hosiery Ltd. . . .

Record 4A

Page 1 is a chain of e-mail communications:  first, an exchange between Ministry legal counsel and the Legal Director (the manager to whom counsel reports); second, a direct communication to the client from counsel conveying the information set out at December 4, 4:20 p.m. (the client is OHAU and the Deputy Minister, through his Executive Assistant).

It is routine for counsel to report to the Legal Director periodically.  The Legal Director provides advice and direction with regard to the management of the file and her input is part of the advice provided to the client.

The content reflects legal advice in the form of interpretations of O.C. 2298/2001 and is aimed at keeping the client informed as to the progress of the matter, specifically, by indicating the further information required by Cabinet office to process the order in council.

This record falls within the common law solicitor-client privilege as either a direct communication between solicitor and client for the purpose of giving legal advice, or in the alternative, as “part of the continuum of communications” as per Balabel. . .

In addition to the above, it should be noted that the e-mail of December 4, 2002 at 4:20 p.m. records the substance of a communication between Ministry legal counsel and counsel for Cabinet office.

Record 4B

Page 1 is a chain of e-mail communications between Ministry legal counsel and his OHAU client.  The e-mail relates to instructions to Ministry legal counsel respecting the order in council and sets out the next steps for having the order in council processed.

Page 2 is an e-mail between Ministry legal counsel and the Legal Director.  It is a status report on the matters found on page 1.

Pages 3-5 are part of the draft order in council.  Page 5 reflects the instructions to counsel outlined on page 1.

This record falls within the common law solicitor-client privilege as either a direct communication between solicitor and client for the purpose of giving legal advice, or in the alternative, as “part of the continuum of communications” as per Balabel. . .

As previously set out with respect to record 3, the order in council represents working papers directly related to seeking, formulating or giving legal advice as per Susan Hosiery Ltd. . . .

Record 7A

Page 1 is an e-mail from Ministry legal counsel to his client, Ministry communications staff, respecting issue note 43.  The e-mail contains advice and recommendations and it constitutes a direct communication between solicitor and client for the purpose of giving legal advice.  Privilege therefore attaches.

Record 7E

This is a direct communication from Ministry legal counsel to a Ministry client, the Assistant Deputy Minister of Citizenship Division.  The severed portions contain and recommend a course of action with respect to rewording of certain documents and related matters.

The records are confidential communications between solicitor and client for the purpose of seeking, formulating and giving legal advice:  Susan Hosiery Ltd. . . .

Similar documents prepared by counsel and recommending a particular course of action were held to be privileged within the meaning of section 19 in Order PO-2022-1.

Record 8

This is an information package on a nominee for The Order of Ontario.  This record was forwarded to Ministry legal counsel (and the Legal Director) by his Ministry client OHAU, as indicated in her handwritten note on the bottom of page 1.  The intent of the client in providing this information is to ensure that counsel was kept fully informed.  Note the date of this record is contemporaneous with the other records despite the reference to 2002, which is in error.

Privilege attaches to this record by virtue of Balabel . . .

Record 12

Ministry legal counsel advises that the record contains his notes (pages 1-5 inclusive) taken at the meeting of January 6, 2003, held between counsel and clients including the Deputy Minister (who also holds the position of Secretary General of the Advisory Council to The Order of Ontario) and senior bureaucrats of the [Ministry].  The Deputy had invited Ministry legal counsel to the meeting for the purpose of discussing legal issues, and in order to receive legal advice on a certain issue (discussed in more detail in the following section).

The Ministry Legal Director advises that pages 6-10 inclusive are her notes taken at the same January 6, 2003 meeting.

The record is privileged as a communication made within the framework of the solicitor-client relationship.  In the terminology of the court in Susan Hosiery … privilege applies to the legal advisor’s working papers directly related to seeking, formulating or giving legal advice.

Record 13

Page 1 is an e-mail prepared by Ministry legal counsel and sent directly to his clients.  It discusses instructions to provide legal advice on a specific matter.

Pages 2 and 3 also record legal advice, and recommend a particular course of action (the sending of the draft letter at page 4, and suggested alternative wording based on legal considerations) prepared by Ministry legal counsel for client review.

Page 5 is an e-mail chain between the Legal Director, Ministry legal counsel and clients.

Page 6 is an e-mail containing a modified draft letter prepared by Ministry legal counsel and sent to a client.

The record contains confidential communications exchanged between solicitor and client for the purpose of seeking, formulating and giving legal advice.  The draft materials are privileged working papers of Ministry legal counsel:  Susan Hosiery . . .

Record 14

This record consists of draft materials prepared for the Deputy Minister or Minister of Citizenship including:

Pages 1 and 2 - This portion constitutes a ‘Question and Answer’ sheet in draft form.  Severed parts contain handwritten comments and revisions authored by the Legal Director.  These portions constitute advice of counsel, based on legal considerations, as to how the clients might redraft the document for greater legal appropriateness.

The severed portions (typeface and handwritten notes) of pages 2, 4, 5, 7 and 8 reflect the substance of earlier legal advice.

Pages 6 to 10 consist of an e-mail chain.  The chain begins with consultation between counsel and the client Deputy Minister (through his Executive Assistant) and Ministry communications staff.  It ends at page 10 with advice from Ministry legal counsel to communications staff.  The substance of the e-mails relates to a particular course of action, based on legal considerations.  This is similar to the situation in PO-2022-I wherein documents recommending a specific course of action were held to be privileged and subject to the exemption in section 19.

Record 15

This record is a voice mail transcription.  It is a record of a direct communication from the Ministry client group OHAU to Ministry legal counsel.

This record is “part of the continuum of communications” as per Balabel . . .

Record 19

Pages 1 through 3 are a series of communications between Ministry legal counsel and his client.  This portion of the record is “part of the continuum of communications” as per Balabel . . .

Pages 4 and 5 - Ministry legal counsel advises that these are his handwritten notes.  These constitute working papers directly related to seeking, formulating or giving legal advice as per Susan Hosiery . . .

Record 20

This record relates to a letter prepared for signature of the Deputy Minister by Ministry legal counsel.

Pages 1-3 - Ministry legal counsel advises that these are his notes in the form of unsent emails.

Pages 4 and 5 consist of communications from Ministry legal counsel to the client with annotations by the client intended to communicate responses back to counsel.

Pages 6 - 9 are further drafts prepared by Ministry legal counsel.  (Note that pages 8-9 are draft despite the signature found on page 9.)

Pages 11 and 12 are a series of e-mails from Ministry legal counsel to the Legal Director.

Pages 1, 3, 11 and 12 constitute the working papers of Ministry legal counsel.  The remainder of the records constitute communications between Ministry legal counsel and the client made for the purpose of giving and receiving legal advice.

Record 27A

This record is facsimile cover sheet from the Office of the Lieutenant Governor to the Ministry OHAU.

The severed part of the record refers to future steps regarding plans for the investiture ceremony and possible disruptions to it.  This reference reflects Ministry legal counsel’s advice to his client with respect to The Order of Ontario appointments, and specifically with respect to the making of appropriate arrangements for public safety and security at the Legislature for the investiture ceremony . . .

Although the record is not a communication between counsel and client, this communication nevertheless is protected because it reveals the substance of advice from counsel to the client . . .

The appellant submits:

Section 19 of the [Act] makes clear that documents must have been prepared expressly by or for Crown counsel “for use in giving advice or in contemplation of or for use in litigation.”

It is our position that these words mean what they say.  There must be a specific case or situation.  There must be advice for that case alone.  There must be a specific client and a specific counsel or group of counsel.  Those are essential. They are not here.

Records 3, 4A and 4B show the situation clearly.  There was no Client or counsel because they were done prior to the Lieutenant-Governor’s letter officially informing me that I had been appointed to the Order of Ontario and would be invested with the insignia.  The letter was dated December 19, 2002 and delivered on December 23, 2002.  Only after that date could any documents seek to cover up the leakage of the Cabinet role in the “independent” Order of Ontario.

A similar problem affects records 12 and 13.  Telephone calls to me started January 2, 2003 but were from different officials with contradictory stories about what happened.  The earliest time they could have begun to work out a single story was January 6.  Records 12 and 13 do not support a claim of solicitor-client privilege.

Finally, none of the documents for which Solicitor and Client privilege is sought, actually had a solicitor and client situation.

They were merely discussions and Emails among officials, including their in-house legal counsel.  They refer to “client” or “clients”, but never suggest that they are acting for one as “client”.  They do not mention any request to Cabinet or the Attorney-General, to prepare for legal proceedings.

Without a defined “client” for a defined case, there is no basis for solicitor-client privilege.  It did not exist . . .

Findings

Based on the Ministry’s detailed representations and my review of the records, I am persuaded that all of Records 3, 4A, 4B, 7A, 8 and 13 are direct communications between a lawyer and a client (Ministry staff), made for the purpose of giving or receiving legal advice on the drafting of an order in council, the order in council process, and the concerns raised by the appellant about the process.  In addition, I am satisfied that Record 12 consists of legal counsel’s notes made at a meeting in which legal advice was sought and received, and that these notes fall within the Susan Hosiery “lawyer’s working papers” aspect of solicitor-client communication privilege.

In addition, for the same reasons, I find that the withheld portions of Records 7E, 14, 15, 19, 20 and 27A either contain or reveal privileged communications, or constitute counsel’s “working papers”, and that they therefore qualify for exemption under section 19.

Finally, I am satisfied based on the circumstances that the communications in question were made and treated confidentially.

To conclude, I find that all of Records 3, 4A, 4B, 7A, 8, 12 and 13, and the withheld portions of Records 7E, 14, 15, 19, 20 and 27A qualify for exemption under section 19.

ADVICE TO GOVERNMENT

General principles

A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution.

The purpose of section 13 is to ensure that persons employed in the public service are able to freely and frankly advise and make recommendations within the deliberative process of government decision-making and policy-making.  The exemption also seeks to preserve the decision maker or policy maker’s ability to take actions and make decisions without unfair pressure [Orders 24, P-1398, upheld on judicial review in Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner) (1999), 118 O.A.C. 108 (C.A.)].

“Advice” and “recommendations” have a similar meaning.  In order to qualify as “advice or recommendations”, the information in the record must suggest a course of action that will ultimately be accepted or rejected by the person being advised [Orders PO-2028, PO-2084, upheld on judicial review in Ontario (Ministry of Northern Development and Mines) v. Ontario (Assistant Information and Privacy Commissioner), [2004] O.J. No. 163 (Div. Ct.)].

Advice or recommendations may be revealed in two ways:

• the information itself consists of advice or recommendations

• the information, if disclosed, would permit one to accurately infer the advice or recommendations given

[Orders PO-2028, PO-2084, upheld on judicial review in Ontario (Ministry of Northern Development and Mines) v. Ontario (Information and Privacy Commissioner), [2004] O.J. No. 163 (Div. Ct.)]

Examples of the types of information that have been found not to qualify as advice or recommendations include

• factual or background information
• analytical information
• evaluative information
• notifications or cautions
• views
• draft documents
• a supervisor’s direction to staff on how to conduct an investigation

[Orders P-434, PO-1993, PO-2115, P-363, upheld on judicial review in Ontario (Human Rights Commission) v. Ontario (Information and Privacy Commissioner) (March 25, 1994), Toronto Doc. 721/92 (Ont. Div. Ct.), PO-2028, upheld on judicial review in Ontario (Ministry of Northern Development and Mines) v. Ontario (Information and Privacy Commissioner), [2004] O.J. No. 163 (Div. Ct.)].

Representations

The Ministry submits:

Record 9

This record reflects the advice and recommendations of the Advisory Council.  It is the voting record of Council members including that of one public servant (Secretary of Cabinet and Head of the Public Service).  The record reveals recommendations as to the nominees who have in the opinion of the Advisory Council, the greatest merit for appointment to The Order of Ontario.

Record 25

This record is an e-mail from the Director of Communications to a staff member. It includes a recommendation to follow up with the media monitoring service (a consultant retained by the institution) concerning its failure to adequately follow instructions.

Findings

The withheld portion of Record 9 reveals whether or not each of the six members of the Council voted in favour of the appellant.  I accept the Ministry’s submission that revealing the votes would reveal the advice of the members of Council to Cabinet on a suggested course of action, that is, whether or not Cabinet should grant the award to the appellant.  Accordingly, the withheld portions of Record 9 are exempt under section 13.

The withheld portion of Record 25 reveals a direction given by the Ministry’s Director of Communications to one of her staff members.  In my view, this information does not constitute advice or a recommendation under section 13(1); rather, it is more accurately characterized as a supervisor’s direction to staff as to how to proceed with a particular task.  Consistent with P-363, which was upheld on judicial review in Ontario (Human Rights Commission) (see above), I find that this portion does not qualify as “advice or recommendations” under section 13.

To conclude, I find that the withheld portions of Record 9 qualify for exemption under section 13, while the withheld portions of Record 25 do not.

In the circumstances, it is not necessary for me to consider the application of the section 12 cabinet records exemption.

FEE WAIVER

As indicated above, the appellant asked the Ministry to waive its $16.40 photocopying fee, on the basis that the requested records “deal with a public issue, as to whether the Government of Ontario may lie to the public and then use Cabinet secrecy to cover up its actions.”  The Ministry declined to waive the fee.

Section 45(4) of the Act requires an institution to waive fees, in whole or in part, in certain circumstances.  Section 8 of Regulation 823 sets out additional matters for a head to consider in deciding whether to waive a fee.  Those provisions state:

45. (4) A head shall waive the payment of all or any part of an amount required to be paid under subsection (1) if, in the head’s opinion, it is fair and equitable to do so after considering:

(a)                the extent to which the actual cost of processing, collecting and copying the record varies from the amount of the payment required by subsection (1);

(b)               whether the payment will cause a financial hardship for the person requesting the record;

(c)                whether dissemination of the record will benefit public health or safety; and

(d)               any other matter prescribed by the regulations.

8. The following are prescribed as matters for a head to consider in deciding whether to waive all or part of a payment required to be made under the Act:

1.         Whether the person requesting access to the record is given access to it.

2.         If the amount of a payment would be $5 or less, whether the amount of the payment is too small to justify requiring payment.

This office may review the institution’s decision to deny a request for a fee waiver, in whole or in part, and may uphold or modify the institution’s decision [Orders M-914, P-474, P-1393, PO-1953-F].

The appellant made no representations on this issue.

The Ministry takes the position that the appellant has not established a reasonable basis for a fee waiver under any of paragraph (a) through (d) in section 45(4), or section 8 of Regulation 823 under the Act.

I agree with the Ministry that the appellant clearly has not established the application of any of the fee waiver provisions in the Act or regulations.  The Act does not provide for a fee waiver based on generalized public interest considerations, without a reasonable connection to a public health or safety issue.

ORDER:

1.         I uphold the Ministry’s decision to deny a fee waiver, and to withhold the records at issue, with the exception of Records 7B and 25

2.         I order the Ministry to disclose to the appellant Records 7B and 25 in full no later than May 28, 2004.

3.         In order to verify compliance with provision 1, I reserve the right to require the Ministry to provide me with a copy of the material disclosed to the appellant.

Original Signed by:                                                                       May 7, 2004                                          

David Goodis