Access to Information Orders
Decision Information
• In camera minutes of City Council relating to two lawsuits initiated by the City.
• Abuse of process - the requests are not an abuse of process.
• Section 4(1)(b) (frivolous or vexatious) - not upheld.
• Section 12 (solicitor-client privilege) - upheld.
• Section 16 (public interest override) - not upheld.
• City's decision to deny access to the in camera minutes upheld.
Decision Content
OVERVIEW
This order arises from two requests for records pertaining to two separate lawsuits brought by the City of Waterloo (the City). The appellant, a law firm, represents a corporation who is a third party defendant in the first lawsuit (referred to in Appeal MA08-112) and, in the second lawsuit (referred to in Appeal MA08-113), represents individual employees who are defendants. The appellant submitted a separate request for records in relation to each of these two lawsuits.
As explained in more detail below, the requests indicate that the information sought includes a number of items concerning the litigation identified in each request, including the decisions to commence the actions and decisions about retaining counsel, and also includes press releases and correspondence with the media, and legal fees. The requests were made under the Municipal Freedom of Information and Protection of Privacy Act (the Act).
The records at issue that are under consideration in this order consist of minutes of three in camera meetings held by the City in 2004 and 2005.
The City denied access to these records under the following discretionary exemptions in the Act: sections 6(1)(b) (closed meeting), 7(1) (advice or recommendations), 11(c) and (d) (economic & other interests) and 12 (solicitor-client privilege). However, the City did disclose a number of records at the time of the request, including by-laws and press releases.
The adjudication regarding access to one responsive record in both appeals, which sets out the total amount of legal expenses incurred by the City in the two lawsuits, has been placed on hold pending the outcome of the City’s application for judicial review of Order MO-2294. The decision to defer the adjudication concerning that record was made because the application for judicial review deals with access to information about legal fees in the two lawsuits mentioned in the two requests under consideration in Appeals MA08-112 and MA08-113. The City’s application for judicial review was dismissed by the Divisional Court on November 25, 2010.
As well as claiming the exemptions referred to above, the City also argues that the requests are an abuse of process because of the ongoing litigation involving the City and the appellant’s clients (and other parties) referred to in the first paragraph, above. This argument is based in part on rulings by the Superior Court of Justice to the effect that some of the questions posed on discovery did not need to be answered by the City because the information was privileged.
Mediation did not resolve these appeals. I received representations from both the City and the appellant, and the non-confidential portions of the representations were shared for comment by the other party in accordance with Practice Direction 7 issued by this office. This order addresses all of the issues in these two appeals with the exception of any issues relating to the records in respect of which the appeals have been placed on hold.
In the discussion that follows, I conclude that:
• the requests are not an abuse of process;
• the records under consideration in this order are exempt in their entirety under the solicitor-client privilege exemption found in section 12 of the Act; and
• the public interest override at section 16 of the Act does not apply.
NATURE OF THE APPEALS:
Appeal MA08-112
This appeal arises from the first request submitted by the appellant, which was for access to the following:
Any and all records relating in any way to The Corporation of the City of Waterloo v. [named individual] and all related proceedings, including but not limited to the third party claim by the defendant by counterclaim, The Corporation of the City of Waterloo, against [two identified companies] [Court file numbers omitted] and the third party claim by [named individual] against among other [two named companies], including but not limited to:
1. Documentation concerning the decision and authorization to bring the action against [named individual] and to bring the third party claim against [two identified companies];
2. Minutes of Council meetings and any documents prepared for or by City Council relating thereto;
3. Decision by the City concerning legal representation;
4. Press releases/correspondence with media about the case;
5. Legal expenses incurred to date.