Expert says 'dangerous' Alberta Court of Appeal precedent will promote government secrecy

Alberta’s information commissioner is appealing a ruling to the Supreme Court of Canada which significantly limits her powers to hold the government accountable.

Alberta’s information commissioner seeks Supreme Court leave to appeal

Ottawa lawyer and freedom of information law expert Michel Drapeau said a Court of Appeal ruling sets a 'dangerous' precedent that could increase government secrecy. (CBC)

Alberta's information commissioner is appealing a ruling to the Supreme Court of Canada which significantly limits her powers to hold the government accountable. It also sets a precedent which one expert says could lead to increased secrecy at government ministries across Canada.

In April, the Alberta Court of Appeal ruled information and privacy commissioner Jill Clayton does not have the legal authority to compel public organizations - such as government ministries - to hand over records which it claims are subject to solicitor-client privilege.

Ottawa lawyer and freedom-of-information expert Michel Drapeau called the ruling a "very, very dangerous precedent" which he believes will be frequently abused by governments seeking to evade transparency and accountability.

"We will only receive information which a government institution decides we are entitled to," Drapeau said. "(Ministries) will block the rest of it by using this very convenient tool: solicitor-client privilege."

Clayton's office regularly seeks such records to determine whether public organizations fairly responded to freedom of information (FOIP) requests. The provincial FOIP Act had given the commissioner authority to compel production of records, including those for which solicitor-client privilege had been asserted.

Court challenge

The University of Calgary challenged that authority in a case involving a former employee who was denied records, requested through FOIP, by the university based on the application of solicitor-client privilege. The university subsequently refused to allow Clayton's office to review the records to determine if the privilege had been properly applied.

A Court of Queen's Bench judge upheld Clayton's right to review the records. The judge ruled the legislature had intended for the commissioner to have this power when it created and passed the FOIP legislation. He concluded this had to be the intended interpretation of the legislation because it was the only way the commissioner could fulfill her mandate to conduct independent reviews on behalf of the public.

Former Alberta Court of Appeal Justice Russell Brown wrote a ruling that a critic says will result in increased government secrecy. (University of Alberta)
But a three-judge panel of the Alberta Court of Appeal disagreed, essentially saying the legislation was too ambiguously worded and that breaching the sanctity of solicitor-client privilege required much more specific language in the law.

Justice Russell Brown wrote the ruling for the Court of Appeal panel. Brown's recent elevation to the Supreme Court of Canada generated controversy because of his public political blog post comments while he was a University of Alberta law professor.

In the ruling, Brown appears to have assumed solicitor-client privilege is always properly asserted. But Drapeau said anyone who has used access to information in Canada knows  public bodies - government departments especially - often misapply legal privilege, some would argue to stymie the release of politically embarrassing records.

The unanimous ruling also stresses that neither Clayton, nor the staff member who conducted the University of Calgary review, are lawyers. He questioned whether their lack of legal training would allow them to properly assess whether solicitor-client privilege had been properly applied.

But Michel Drapeau said Brown should have known every freedom of information commission in Canada employs staff lawyers.

Ruling criticized

Most troubling for Drapeau was the Court of Appeal's failure to address the issue of who exactly is the client when the issue involves records requested from a government.

"Is the bureaucracy the client? I hope not. They are public servants. They are there to protect and defend and address the public interest," Drapeau said.

"So when they are invoking (solicitor-client privilege) when they don't want to release (information), there is a conflict of interest here," he said. "They are speaking for themselves as guardians, perhaps, as stakeholders of some sort. But are they really the client? Or is the public? So there is an issue here."

The issue of solicitor-client privilege has effectively derailed an investigation, begun by Clayton in May 2014, into political interference by the former Conservative government in Alberta. Before the Court of Appeal issued its ruling, Clayton had tried to compel production of records, withheld due to solicitor-client privilege, from 13 government ministries.

Now former justice minister Jonathan Denis refused to turn over the records and instead asked Clayton to withdraw the production orders pending the outcome of the University of Calgary case.

When Clayton refused, the government filed an application with the Court of Queen's Bench seeking to have the orders struck down. That application won't be heard until February 2016.

Legislation change needed

Clayton's spokesman, Scott Sibbald, said it is not known when the Supreme Court will determine whether to allow the appeal.

Alberta information commissioner Jill Clayton is seeking leave from the Supreme Court of Canada to appeal a lower-court ruling which she says reduces her ability to hold the government accountable.
Sibbald declined to say whether Clayton has asked the new government of Premier Rachel Notley to intervene in the political interference investigation case and simply provide the records at issue.

Drapeau said Notley needs to reaffirm the authority of the freedom of information commissioner to review any documents she requires to fulfill her mandate by immediately changing the FOIP act.

"If freedom of information means anything to this government - and certainly it does - then it has to pass an amendment to the statute," Drapeau said, adding that the commissioner acts for the public to ensure government transparency and accountability.

"We need to redress this very, very dangerous precedent that will now provide an institution an ability, in fact, to actually block and exempt a huge amount of information from disclosure."

Notley's press secretary, Cheryl Oates, said the premier has directed Justice Minister Kathleen Ganley to conduct a review of the FOIP legislation and report back to her, although no timeline has been set. 

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