Solicitor-client privilege often stymies release of documents

At the centre of issues around access to information in Alberta is the concept of solicitor-client privilege. Postmedia’s James Wood explains how it works.

What is solicitor-client privilege?

It’s the principle that protects communications between a lawyer and his or her client from being disclosed except with the permission of the client. In Canada, Supreme Court decisions have elevated it to a constitutional right.

Under Alberta law, solicitor-client privilege is one of the reasons a public body can refuse to disclose documents.

What’s the problem?

In the past, the province’s information and privacy commissioner had the ability to access documents in which privilege has been claimed to determine whether it actually applied. In 2008, thenjustice minister Alison Redford affirmed that right.

In recent years, though, commissioner Jill Clayton says public bodies have begun to refuse to provide documents to the commissioner when solicitor-client privilege has been asserted.

In 2013, the Court of Queen’s Bench upheld the commissioner’s right to review the documents in a case involving the University of Calgary and a fired employee seeking access to unredacted records. Two years later, however, the Alberta Court of Appeal ruled the law was too unclear.

The ruling also effectively stalled a separate investigation by Clayton’s office into political interference by the former Conservative government begun in 2014. She had tried to compel production of documents from 13 departments that had invoked solicitor-client privilege, but was refused.

What did the top court decide?

In 2016, the Supreme Court upheld the Court of Appeal decision, noting that provincial legislation that gives the commissioner the right to compel production of records despite “any privilege of the law of evidence” is not sufficient. (The court also ruled that it was not appropriate for Clayton to have exercised her powers to order production in the U of C situation in any case.)

The Supreme Court decision was hailed by many legal groups as an important validation of solicitorclient privilege. But Clayton and other officials are concerned that lawyers for public bodies could either inadvertently or intentionally improperly claim solicitor-client privilege as a means of protecting the records from public disclosure.

What does the information and privacy commissioner want?

Clayton has asked the provincial government to amend the legislation to explicitly give her office the power to order documents to ensure solicitor-client privilege is being properly asserted.

About 80 cases currently before her office are affected by the Supreme Court decision. Clayton notes that in most cases, the commissioner does not have to actually view the content of the records themselves to determine whether privilege is in effect.