Access to Information Orders
Decision Information
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 records pertaining to the requester’s recent criminal code offence. The Ministry responded to the request by granting partial access to the responsive records. Access was denied to certain records under the exemptions found in the following sections of the Act : section 49(a) (discretion to refuse requester’s own information), 14(2)(a) (law enforcement), 19 (solicitor-client privilege), 22(a) (information published or available), and 49(b) (invasion of privacy) in conjunction with sections 21(2)(f) and 21(3)(b). In the decision letter, the Ministry also referred the requester to a specific Court Office for the documents that were exempted under section 22(a) of the Act, and to the Ministry of Public Safety and Security for other identified records. The requester (now the appellant) appealed the Ministry’s decision. During mediation, the Ministry provided the appellant with an index of records containing a description of the records and identifying the specific exemptions that were being claimed for each of the records. Also during mediation, the appellant advised that he did not wish to pursue access to a number of specific records, and those records are no longer at issue. As well, section 22(a) was no longer at issue in this appeal. Finally, the mediator identified that one page of the records, located between pages 178 and 179, was not numbered. That page was assigned the number 178A. Mediation did not resolve the issues in this appeal, and it was transferred to the inquiry stage of the process. I sent a Notice of Inquiry to the Ministry, initially, inviting representations on the facts and issues. The Ministry provided representations to me, and I sent the Notice of Inquiry, along with a copy of the Ministry’s representations, to the appellant. The appellant provided representations in response. In its representations, the Ministry identified that it is no longer relying on the exemption found in section 14(2)(a) of the Act . Accordingly, that section is no longer at issue in this appeal. RECORDS: The records remaining at issue in this appeal are pages 1, 161, 168-189, 191-210, 212, 215, 217, 219, 228, 229, 231, 233 and 243. They include court documents and other documents prepared by Crown counsel, both internal and external correspondence and draft correspondence to and from Crown counsel, information supplied by the police to the Crown to assist in the prosecution, and Crown counsel notes to file and notes relating to a number of witnesses. DISCUSSION: PERSONAL INFORMATION Personal information is defined in section 2(1) of the Act , in part, to mean recorded information about an identifiable individual, including any identifying number assigned to the individual [paragraph (c)] and 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 Ministry submits that all of the records at issue contain the personal information of the appellant. The Ministry also states that some of the records contain the personal information of other individuals, and specifies which pages of the records contain the personal information of other identifiable individuals. Based on my review of the contents of the records, I find that all of the records at issue contain the personal information of the appellant. Furthermore, Records 176-179, 181-186, 188, 204-208, 215 and 228 also contain the personal information of other identifiable individuals within the meaning of that term in section 2(1). 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 at issue “pertain to materials that were created in contemplation of or for use in litigation” and fall within the scope 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. As a preliminary note, however, there are a small number of records at issue in this appeal for which I have decided to defer my finding regarding the possible application of sections 19 and 49(a), in order to provide the Ministry with an opportunity to provide further representations on these specific records, particularly in light of an Ontario Court of Appeal decision which was made following the receipt of representations in this file [ G. (N) v. Upper Canada College , 70 O.R.(3d) 312 (C.A.)]. The records for which I have decided to defer my finding are the following documents: Records 168-170, 174, 175, 187, 191 and 202-203. 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. Section 19 contains two branches. Branch 1 includes two common law privileges: solicitor-client communication privilege; and litigation privilege. Branch 2 contains two analogous statutory privileges that apply in the context of Crown counsel giving legal advice or conducting litigation. In this appeal, the Ministry identifies that it “relies on the full ambit of section 19, that is, both branches contained in the provision”. The Ministry then identifies that it will “focus its submissions on the litigation privilege in branch 2 ... as the records at issue pertain to materials that were created in contemplation of or for use in litigation”. Litigation privilege The litigation privilege found in branch 1 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 t
Decision Content
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 records pertaining to the requester’s recent criminal code offence.