Access to Information Orders
Decision Information
On June 9, 2000, the Province of Ontario, as represented by the Attorney General and Minister Responsible for Native Affairs, entered into an agreement titled “Casino Rama Revenue Agreement” (the Agreement). The other parties to the agreement are the Ontario Lottery and Gaming Corporation (OLGC), Ontario First Nations Limited Partnership (OFN) and Mnjikaning First Nation Limited Partnership (MFN).
Article 4 of the Agreement, headed “First Nations Reporting” contains a number of provisions, including requirements for MFN and various organizations receiving revenue under the terms of the Agreement to provide annual audited financial statements to OFN, and for OFN to in turn report to the Province. The OFN report must include a consolidation of various individual reports, as well as audited financial statements for OFN itself. The Agreement contains scheduled forms to be used for these reporting exercises.
The Agreement also provides for the appointment of an accountant called the “Joint Appointee”, agreed upon jointly by the Province and OFN, who is provided with the various reports and given authority to conduct investigations to determine whether the parties to the Agreement are living up to their contractual responsibilities, and to report on an annual basis to all signatories to the Agreement.
OFN and MFN are given authority under the Agreement to develop policies and procedures setting out expenses that can be charged by organizations against revenue generated under the terms of the Agreement, subject to approval by the Province.
Decision Content
BACKGROUND:
On June 9, 2000, the Province of Ontario, as represented by the Attorney General and Minister Responsible for Native Affairs, entered into an agreement titled “Casino Rama Revenue Agreement” (the Agreement). The other parties to the agreement are the Ontario Lottery and Gaming Corporation (OLGC), Ontario First Nations Limited Partnership (OFN) and Mnjikaning First Nation Limited Partnership (MFN).
Article 4 of the Agreement, headed “First Nations Reporting” contains a number of provisions, including requirements for MFN and various organizations receiving revenue under the terms of the Agreement to provide annual audited financial statements to OFN, and for OFN to in turn report to the Province. The OFN report must include a consolidation of various individual reports, as well as audited financial statements for OFN itself. The Agreement contains scheduled forms to be used for these reporting exercises.
The Agreement also provides for the appointment of an accountant called the “Joint Appointee”, agreed upon jointly by the Province and OFN, who is provided with the various reports and given authority to conduct investigations to determine whether the parties to the Agreement are living up to their contractual responsibilities, and to report on an annual basis to all signatories to the Agreement.
OFN and MFN are given authority under the Agreement to develop policies and procedures setting out expenses that can be charged by organizations against revenue generated under the terms of the Agreement, subject to approval by the Province.
NATURE OF THE APPEAL:
The Ministry of the Attorney General (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for access to “copies of all audits, reports, and related documents received by the Ministry from [OFN] as per [the Agreement]” and “any Ministry memos or reports, including audits, related to First Nations audits submitted as per [the Agreement]”.
The Ministry identified 110 responsive records.
Pursuant to section 28 of the Act, the Ministry invited OFN and MFN, whose interests might be affected by the disclosure of the records, to provide input on whether they should be disclosed. Both objected to disclosure.
The Ministry then responded to the requester, denying access to all of the records pursuant to the following exemptions in the Act:
section 13(1) - advice or recommendations
sections 17(1)(a) and (c) - third party information
section 19 - solicitor client privilege
section 21(1) - invasion of privacy
The requester, now the appellant, appealed the Ministry’s decision.
During mediation, the Ministry provided the appellant and this office with an index identifying the specific exemption claimed for each record. The index also indicated that parts of certain records contained information that was not responsive to the request.
No issues were resolved during mediation, and the appeal was forwarded to the Adjudication Stage. I began my inquiry by sending a Notice of Inquiry to the Ministry, OFN and MFN. The Ministry and OFN submitted representations. I then sent the Notice to the appellant, together with a copy of the Ministry’s representations in their entirety and the non-confidential portions of OFN’s representations. The appellant in turn provided representations.
RECORDS:
The records at issue in this appeal are described in the index prepared by the Ministry and provided to the appellant during mediation.
There are a total of 110 records comprising 356 pages. They include correspondence, financial audits completed under the terms of the Agreement, fax cover sheets, briefing notes, meeting notes, handwritten and typed notes, agendas, and email messages. Some records are in draft format.
For each record, the index identifies the exemptions claimed by the Ministry and, where relevant, the portions the Ministry submits are not responsive to the appellant’s request.
DISCUSSION:
RESPONSIVENESS
The Ministry takes the position that the following records or portions of records are not responsive to the request: Records 1, 3, 9, 10, 11, 12, 15, 16, 20, 21, 22, 27, 28, 29, 30, 32, 33, 37, 38, 39, 40, 41, 42, 44, 45, 46, 48, 59, 62, 65, 66, 80, 83, 84, 90 and 105.
The Ministry submits that information it identifies as non-responsive consists of meeting agenda items or proposed agenda items that do not deal with the “audits or related documents” concerning the Agreement; computer file path directors that identify the location of records in the Ministry’s computer system but do not contain the requested information; and notes or other communications that do not contain any information about the audits or documents relating to the audits.
The appellant submits in her representations:
I am prepared to accept the irrelevance of agenda items or proposed agenda items, computer file path directories and communications that do not contain information about the Casino Rama Revenue Agreement audits or related documents.
I have reviewed the portions of the records the Ministry describes as being non-responsive.
Some portions contain the computer-generated file references, which are clearly not covered by the appellant’s request.
The other non-responsive portions of records consist of agendas, meeting notes, email messages and official minutes of various meetings of the Casino Rama Working Group of the Casino Rama Revenue Agreement Implementation Committee (the Casino Rama Committees) where a number of issues are discussed. The items and notations dealing with audits and related documents have been included within the scope of the request; and other portions that deal with topics relating to various aspects of the Agreement other than the audit reporting process, have been excluded.
Previous orders have established that in order to be responsive, a record must be “reasonably related” to the request [Order P-880]. In light of the wording of the appellant’s request and her acceptance that information concerning aspects of the Agreement other than audits and related documents is not responsive, I find that the portions of the following records withheld by the Ministry as “non-responsive” fall outside the scope of the appellant’s request: Records 1, 3, 9, 10, 11, 12, 15, 16, 20, 21, 22, 27, 28, 29, 30, 32, 33, 37, 38, 39, 40, 41, 42, 44, 45, 46, 48, 59, 62, 65, 66, 80, 83, 84, 90 and 105.
INVASION OF PRIVACY
The Ministry claims that the following records or portions of records qualify for exemption under the mandatory invasion of privacy exemption in section 21(1) of the Act: 9, 11, 16, 22, 27, 28, 32, 33, 39, 40, 41, 46 and 63.
In order to qualify for exemption under section 21(1), a record must contain “personal information”. This term is defined in section 2(1) of the Act to mean recorded information about an identifiable individual, including 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 [paragraph (h)].
The information identified by the Ministry consists of the names of individuals who are not Ministry employees. The Ministry submits that these names themselves are “personal information” and, in addition, that “the names in combination with other information in the document[s], provides information about the whereabouts and activities of identifiable individuals at particular dates and times”, and therefore falls within the scope of paragraph (h) of the definition.
The appellant states that she is not interested in receiving information that qualifies as “personal information” as defined in section 2(1).
Previous decisions of this office have drawn a distinction between information relating to an individual in a personal capacity and information relating to an individual in a professional or official government capacity. As a general rule, information associated with a person in a professional or official government capacity will not be considered to be “about the individual” within the meaning of section 2(1) definition of “personal information” [Orders P-257, P-427, P-1412, P-1621].
In a reconsideration of Order P-1538, Adjudicator Donald Hale reviewed the history of this office’s approach to this issue. He extensively examined the approaches taken by other jurisdictions and considered the effect of the decision of the Supreme Court of Canada in Dagg v. Canada (Minister of Finance)(1997), 148 D.L.R. (4th) 385. In applying the principles which he described in his reconsideration order, Adjudicator Hale reached the following conclusions:
I find that the information associated with the names of the affected persons which is contained in the records at issue relates to them only in their capacities as officials with the organizations which employ them. Their involvement in the issues addressed in the correspondence with the Ministry is not personal to them but, rather, relates to their employment or association with the organizations whose interests they are representing. This information is not personal in nature but may be more appropriately described as being related to the employment or professional responsibilities of each of the individuals who are identified therein. Essentially, the information is not about these individuals and, therefore, does not qualify as their “personal information” within the meaning of the opening words of the definition.
In order for an organization, public or private, to give voice to its views on a subject of interest to it, individuals must be given responsibility for speaking on its behalf. I find that the views which these individuals express take place in the context of their employment responsibilities and are not, accordingly, their personal opinions within the definition of personal information contained in section 2(1)(e) of the Act. Nor is the information “about” the individual, for the reasons described above. In my view, the individuals expressing the position of an organization, in the context of a public or private organization, act simply as a conduit between the intended recipient of the communication and the organization which they represent. The voice is that of the organization, expressed through its spokesperson, rather than that of the individual delivering the message.
In the present situation, I find that the records do not contain the personal opinions of the affected persons. Rather, as evidenced by the contents of the records themselves, each of these individuals is giving voice to the views of the organization which he/she represents. In my view, it cannot be said that the affected persons are communicating their personal opinions on the subjects addressed in the records. Accordingly, I find that this information cannot properly be characterized as falling within the ambit of the term “personal opinions or views” within the meaning of section 2(1)(e).
I have reached the same conclusion as it relates to the portions of Records 9, 11, 16, 22, 27, 28, 32, 33, 39, 40, 41, 46 and 63 withheld by the Ministry under section 21(1).
The information the Ministry claims to be “personal information” in these records is the names of individuals who attended meetings of the various Casino Rama Committees as representatives of OFN, MFN and/or OLGC. In one instance (Record 16) the name of a lawyer who attended a meeting, and the law firm he represents, has also been withheld under section 21(1). Applying the approach outlined by Adjudicator Hale, it is clear from the context in which the names are listed in the various records that these individuals are attending the Casino Rama Committee meetings in their official capacities as representatives of the organizations to which they belong. There is no “personal capacity” dimension to the names in this context and, in my view, no basis for distinguishing the names of Ministry officials attending these meetings, which the Ministry has agreed to disclose, and the names of officials representing other parties, which the Ministry purports to withhold as representing an invasion of their privacy.
Order PO-2225 is also helpful in this context. In that order, I considered the definition of “personal information” and the distinction between information about an individual acting in a business capacity as opposed to a personal capacity. I posed two questions that help to illuminate this distinction:
Based on the principles expressed in these [previously referenced] orders, the first question to ask in a case such as this is: “in what context do the names of the individuals appear”? Is it a context that is inherently personal, or is it one such as a business, professional or official government context that is removed from the personal sphere?
….
The analysis does not end here. I must go on to ask: “is there something about the particular information at issue that, if disclosed, would reveal something of a personal nature about the individual”? Even if the information appears in a business context, would its disclosure reveal something that is inherently personal in nature?
In the current appeal, the context in which the names appear is not inherently personal, but is one that relates exclusively to the official responsibilities of these individuals as representatives of the other parties to the Agreement. Similar to the business context present in Order PO-2225, the professional or representative context in which the individuals’ names appear here removes them from the personal sphere. In addition, there is nothing about the names themselves that, if disclosed, would reveal something of a personal nature about the various attendees.
As far as the name of the lawyer in Record 16 is concerned, it is listed along with the name of the private sector law firm with which he is associated. Clearly, there is no personal context for this individual’s name and professional association.
For all of these reasons, I find that the names of the various individuals withheld from Records 9, 11, 16, 22, 27, 28, 32, 33, 39, 40, 41, 46 and 63 do not qualify as “personal information” as that term is defined in section 2(1) of the Act. Because only “personal information” can qualify for exemption under section 21(1), I find that this exemption claim has no application in the circumstances of this appeal.
SOLICITOR-CLIENT PRIVILEGE
The Ministry takes the position that section 19 applies to the responsive portions of Records 1, 3 (pages 4-11), 4, 12, 14, 15, 17, 19, 23, 24, 30, 31, 35, 36, 42, 43, 49-56, 58-66, 70, 71, 72 (pages 2-4), 75, 76, 77, 79, 80, 81, 85, 87, 89, 90, and 94-110.
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.
Section 19 contains two branches as described below. The Ministry 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
Common law litigation privilege has not been raised by the Ministry and has no application in the circumstances of this appeal.
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.)].
The Ministry relies on the common law solicitor-client communication privilege component of Branch 1 for all identified records, with the exception of Records 1, 3 (pages 4-11) and 17 (pages 1-14). The Ministry takes the position that:
Records 4, 12, 14, 15, 30, 31, 36, 42, 43, 51, 52, 54, 56, 61-66, 70, 71, 72 (page 4), 76, 79, 81, 90 [page 3 is a fax transmittal page attaching pages 1-2], and 94-110 consist of correspondence subject to common law solicitor-client privilege because they contains communications between a lawyer and client and are exchanged for the purpose of seeking or giving confidential legal advice.
Records 17 (pages 5-50), 19, 23, 24, 53 and 87 are draft legal opinions or legal documents and related attachments which were provided for the purpose of giving advice or seeking instructions.
Records 35, 55, 58, 59, 72 (pages 2-3), 77 and 89 consist of draft correspondence “expressly and/or implicitly” containing or seeking legal advice.
Records 49, 50, 75 and 84 [should be 85] are notes made by counsel for the purpose of formulating or communicating legal advice, or seeking instructions.
The appellant makes no submissions on the application of the solicitor-client privilege to the records at issue in this appeal.
On the basis of the Ministry’s representations and my review of the records identified by the Ministry as qualifying under Branch 1 solicitor-client communication privilege, I make the following findings:
• Record 4 is a letter from the Director of the Policy and Agency Partnerships Branch of the Ministry of Tourism, Culture and Recreation (MTR) to a private sector law firm asking for a legal opinion on the interpretation of an aspect of Article 4 of the Agreement. The letter outlines the context in which the legal issue arose, includes specific items that are to be addressed in the opinion, and refers the lawyer to internal legal counsel for any required clarifications. I find that this record falls squarely within the parameters of common law solicitor-client communication privilege: it is a written communication between a client and a solicitor made for the purpose of obtaining professional legal advice. The record is marked “solicitor-client privilege” evidencing a clear intention that the contents should be treated confidentially. I find that Record 4 qualifies for exemption under Branch 1 of section 19.
• Records 12, 14, 15, 30, 31, 36, 42, 43, 51, 52, 54, 56, 61-66, 70, 71, 72 (page 4), 76, 79, 81, 87, 90, and 94-107, 108 (page 1), 109 and 110 are all internal email messages and email chains exchanged between legal counsel, program staff and staff of the Office of the Deputy Attorney General on the topic of the requested legal opinion comprising Record 4 and issues stemming from it. Although not marked as “confidential”, given the subject matter and the context in which these records were created, it is reasonable to assume that the communications reflected in them were intended to be treated confidentially. In my view, these records are either direct communications between solicitor and client seeking or conveying legal advice or are accurately characterized as part of the “continuum of communications” between solicitor and client described in Balabel. Although pages 1-2 of Record 90 are authored by a lawyer representing one of the other parties to the Agreement, it is clear from the content of page 3 of this record that it was communicated to MTR’s legal counsel during the continuum of discussions on the subject matter of Record 4. Therefore, for the reasons outlined, I find that Records 14, 15, 30, 31, 36, 42, 43, 51, 52, 54, 56, 61-66, 70, 71, 72 (page 4), 76, 79, 81, 87, 90, and 94-97, 108 (page 1), 109 and 110 all qualify for exemption under the common law solicitor-client communication privilege component of Branch 1 of section 19.
• Records 19, 23, and 24 and pages 5-50 of Record 17 are all draft copies of the legal opinion prepared by the private sector law firm in response to the request that comprises Record 4. Each draft contains handwritten notes apparently made by MTR legal counsel and other client staff. These records are, in effect, draft versions of the other half of the solicitor-client communication equation initiated by Record 4, and they also qualify for common law solicitor-client communication privilege. The main body of these records consists of written communications between a solicitor and a client made for the purpose of providing professional legal advice; and the handwritten notes constitute feedback provided to the solicitor by the clients. As with Record 4, it is reasonable to conclude that communications of this nature were intended to be treated confidentially. Pages 1-4 of Record 17 are all fax cover sheets transmitting the marked-up copy of the draft opinion from MTR legal counsel to outside legal counsel and to internal program area officials. The notations on these cover sheets make it clear that they are part of the “continuum of communications” outlined in Balabal. Therefore, I find that Record 19, 23 and 24, and all of Record 17 qualify for exemption under Branch 1 of section 19. It should be noted that the final version of the legal opinion has not been identified as a responsive record in this appeal. Although this would normally raise issues concerning the adequacy of the Ministry’s search for responsive records, it is clear that any such record would clearly fall within the scope of common law solicitor-client communication privilege and, in my view, there is no useful purpose in pursuing the search issue in these circumstances.
• Records 35, 55, 58, 59 and 72 (pages 2-3), 77 and 89 all consist of draft letters prepared for the Deputy Attorney General (and in one case his Executive Assistant) to send to one of the other parties to the Agreement, concerning issues stemming from the request for the legal opinion comprising Record 4. Based on the content of the draft letters, it is reasonable to conclude that they were prepared by legal counsel. In my view, these records all qualify for common law solicitor-client communications privilege. They were drafted and communicated by staff to the Deputy Attorney General for the purpose of providing legal advice on issues under discussion within the government at that time. I accept that draft documents of this nature are prepared with an expectation that the contents would remain confidential until finalized. Therefore, I find that Records 35, 55, 58, 59 and 72 (pages 2-3), 77 and 89 qualify for exemption under Branch 1 of section 19.
• Records 49, 50, 53, 75, 85 and 108 (pages 2-7), consist of handwritten or typewritten notes prepared by legal counsel in the context of discussing and researching issues stemming from the request for the legal opinion comprising Record 4. I find that these records constitute counsel’s working papers directly related to seeking, formulating or giving legal advice as described in Susan Hoisery, and therefore Records 49, 50, 53, 75, 85 and 108 (pages 2-7) qualify for exemption under the common law solicitor-client communications component of section 19 of the Act.
The Ministry’s representations do not deal with Records 60 and 80, although section 19 is identified on the index as applying to these two records. Having reviewed them, I find that Records 60 and 80 are similar in nature to Records 58 and 51 respectively, and qualify for exemption under section 19 for the same reasons as these other records.
Branch 2: statutory privilege
Branch 2 is a statutory solicitor-client privilege that is available in the context of Crown counsel giving legal advice or conducting litigation. This branch encompasses the same two types of privilege as derived from the common law. 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 takes the position that Branch 2 applies to Records 1, 3 (pages 4-11) and 17 (pages 1-3). I have already determined that pages 1-3 of Record 17 qualify for exemption under Branch 1, so I will not consider these records under Branch 2.
In its representations, the Ministry simply states that disclosing the proposed agenda item identified in the responsive portion of Record 1 and the fax cover sheets for Record 3 would reveal communications prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.
I do not accept the Ministry’s position.
I have no basis for concluding that Crown counsel was the author of Record 1, and it is clear from other records in this appeal that the recipients of the Casino Rama Committee agendas included all parties to the Agreement, including representatives outside the government. I am also not persuaded that disclosing the one-line reference to the topic included on this agenda and presumably known outside the confines of a restricted solicitor-client relationship could reasonably be considered confidential, nor would it appear that the listed agenda item could be used in “giving legal advice or in contemplation of or for use in litigation”, certainly not based on the evidence and argument provided by the Ministry in its representations.
As far as the Record 3 fax cover sheets are concerned, although six of them are addressed to employees of the government, the other two were sent to outsiders representing other parties to the Agreement. In these circumstances, it is not reasonable to conclude that the communications were intended to be treated confidentially, nor am I persuaded, based on the brief representations provided by the Ministry, that the communication could reasonably be expected to be used in “giving legal advice or in contemplation of or for use in litigation”. Therefore, I find that the responsive portions of Record 1 and pages 4-11 of Record 3 do not qualify for exemption under Branch 2 of section 19. No other exemption has been claimed for Record 1, so the responsive portion should be provided to the appellant. The Ministry has also withheld pages 4-11 of Record 3 under section 17(1), and I will include these pages in my discussion of that exemption claim.
ADVICE TO GOVERNMENT
The Ministry claims section 13(1) of the Act as one basis for denying access to portions of the following records: 10, 11, 13, 17, 19, 22, 23, 35, 41, 48, 58, 59, 60, 77, 89 and 94.
I have already determined that Records 17, 19, 23, 35, 58, 59, 60, 77, 89 and 94 qualify for exemption under section 19, so I will restrict my discussion of section 13(1) to the portions of Records 10, 11, 13, 22, 41 and 48 identified by the Ministry.
Section 13(1) reads:
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-1894, PO-1993].
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.), leave to appeal granted Doc M30914, June 30, 2004, C.A.)].