Solicitor-client privilege cannot be set aside by inference: court
The BC Court of Appeal has overturned a decision that required the Ministry of Children and Family Development to disclose solicitor-client privileged information about birth alerts.
The ruling came after digital news platform IndigiNews requested access to records regarding birth alerts issued between June 2019 and September 2020. The Ministry had issued birth alerts for decades when they were concerned that a mother might put a newborn at risk. Hospitals were notified upon the mother's admission, and a social worker would assess whether the baby should be taken into government care.
In October 2020, IndigiNews filed an access to information request seeking all records of birth alerts during the specified period. The Ministry responded in two phases, providing 68 partially and completely severed pages of records. Some of the disclosed information was subject to solicitor-client privilege.
IndigiNews challenged the Ministry’s refusal to disclose some information, arguing that under s. 25(1)(b) of the Freedom of Information and Protection of Privacy Act (FIPPA), the information should be disclosed as it was in the public interest. This section states that a public body must disclose information without delay if it is clearly in the public interest, overriding other provisions of the act.
The matter proceeded to an inquiry by the Commissioner’s Director of Adjudication. The adjudicator concluded that the Ministry had established the information was privileged but ordered the Ministry to provide the disputed information to determine if s. 25(1)(b) applied.
The Ministry sought judicial review of the adjudicator's order. The BC Court of Appeal ruled that s. 25 of FIPPA does not override solicitor-client privilege, aligning with the Ministry's position. The court found that s. 25(2), which states that the disclosure obligation applies "despite any other provision of this Act," did not clearly and unequivocally abrogate solicitor-client privilege.
The court also noted that while FIPPA allows the Commissioner to order the production of records for investigation or audit, this authority does not extend to compelling the disclosure of privileged information in the public interest.
The court emphasized the principle from the Supreme Court of Canada that solicitor-client privilege cannot be set aside by inference and requires clear, explicit, and unequivocal legislative language to be overridden.
The court determined that the legislative language in s. 25(2) of FIPPA did not meet this standard. The court highlighted that the Ministry has the discretion to protect or disclose privileged information and that the Commissioner can only order the head of a public body to reconsider this discretion, not override it.
Ultimately, the court remitted the case to the adjudicator to continue the inquiry without requiring the disclosure of privileged information.
