Calgary (Police Service) v Alberta (Information and Privacy Commissioner), 2019 ABQB 109 (CanLII)
Court of Queen’s Bench of Alberta
Citation: Calgary (Police Service) v Alberta (Information and Privacy Commissioner), 2019 ABQB 109
Date: 20190219
Docket: 1601 14378
Registry: Calgary
Chief of Police of the Calgary Police Service
Applicant
- and -
Information and Privacy Commissioner and Thomas Engel
Respondents
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Honourable Mr. Justice R.J. Hall
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[1] This matter has been before me in the form of a Judicial Review. It relates to a freedom of information request to the Calgary Police Service (CPS) for access to records of the CPS and the CPS’ assertion of privilege over certain of their records.
[2] The Information and Privacy Commissioner (IPC) has ordered that these “Disputed Documents” be provided by CPS. However, the Commissioner’s designate, who issued the decision, did not have the opportunity, or advantage, of reviewing those documents to aid in her decision.
[3] On November 1, 2017, I gave written reasons for my decision that the disputed documents be sealed and produced to me, so I could determine whether the claim of privilege in respect of them was properly asserted.
[4] Since then briefs have been filed by CPS, the claimant Thomas Engel, and the IPC. I have now reviewed the Disputed Documents to determine whether they are privileged, and have listened to the able submissions of counsel for each of the parties. As information in an in-camera affidavit had been provided to the IPC, which had not been provided to Mr. Engel, I permitted the IPC to make full representations, particularly as to the test to be applied in determining whether the disputed documents were privileged.
[5] The burden of proving privilege lies with the party asserting it, as specified in s.71 of the Freedom of Information and Privacy Act.
[6] Having heard counsel’s submissions and reviewed relevant case law, I have determined, in this case, that the appropriate test for privilege in respect of each of the disputed records, is as follows:
1) Is there a communication between a solicitor and a client?
2) Does the communication entail the seeking, giving or receiving of legal advice?
3) Is the communication intended by the parties to be confidential?
4) Is the lawyer acting as a lawyer?
5) What was the purpose for which the record came into existence?
6) Is the particular communication part of a continuum in which legal advice is given?
7) Does the particular communication reveal that legal advice has been sought or given?
8) If there is any privileged information, can it be reasonably severed from the rest of the record, without revealing the privilege?
[7] Urged upon me, as well, were the following questions:
• Does the communication entail only legal information as opposed to legal advice?
• Did the asserter of privilege weigh the considerations for and against disclosure, including the public interest in disclosure?
• If the record is privileged, did the asserter of privilege exercise its discretion consistent with the purpose of FOIPP?
[8] I do not accept that any of those latter 3 questions are proper investigations. A lawyer who provides legal information to his client is doing so for the purpose of advising his client. The asserter of privilege is not required to consider the public interest, or the purpose of FOIPP when making a claim of privilege.
[9] I have asked the foregoing 8 questions in relation to each of the disputed records. My conclusion with respect to each disputed document is as follows:
Page 7 - whole page is privileged
Page 8 – whole page is privileged
Page 9 – top half is privileged. Bottom half is not privileged and is producible
Page 10 – not privileged, producible
Page 11 – whole page is privileged
Page 12 – whole page is privileged
Page 13 – not privileged, producible
Page 14- not privileged, producible
Page 24 – whole page is privileged
Page 25 – whole page is privileged
Page 26 – whole page is privileged
Page 29 – whole page is privileged
Page 30 – whole page is privileged
Page 31 – top half of page is privileged
Page 35 – redacted portion is privileged
Page 36 – whole page is privileged
Page 40 – whole page is privileged
Page 41 – whole page is privileged
Page 42 – whole page is privileged
Page 45 – whole page is privileged
Page 46 – whole page is privileged
Page 47 – whole page is privileged
Page 50 – whole page is privileged
Page 51 – redacted portion is privileged
Page 53 – whole page is privileged
Page 54 – whole page is privileged
Page 55 – whole page is privileged
Page 56 – whole page is privileged
Page 57 – whole page is privileged
Page 58 – whole page is privileged
Page 59 – whole page is privileged
Page 60 – whole page is privileged
Page 61 – whole page is privileged
Page 64 – whole page is privileged
Page 65 – whole page is privileged
Page 66 – whole page is privileged
Page 67 – whole page is privileged
Page 68 – whole page is privileged
Page 72 – whole page is privileged
[10] In the result, the decision of the IPC delegate in Order of F2016-35, on her determination of privilege of the disputed records is set aside to the extent of my decision, and replaced by the determinations above. The disputed records which I have ordered to be produced, being the bottom half of page 9, all of pages 10, 13 and 14, are to be reviewed by the IPC’s designate to determine if there are any other valid reasons for denying their production.
[11] The parties may address me on the subject of costs if they cannot reach agreement.
Heard on the 24th day of January, 2019 to the 25th day of January, 2019.
Dated at the City of Calgary, Alberta this 19th day of February, 2019.
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R.J. Hall J.C.Q.B.A. |
Appearances:
Scott H.D. Bower
for the Applicant
Glenn Solomon, Q.C. and Ryan Phillips
for the Respondent, IPC
Nicole Rodych
for the Respondent, Thomas Engel