Section 14 - Legal advice
Section 14 is a discretionary exception to the public's general right of access to legal advice or communications contained in government records under section 4 (Information rights) of the Act. It gives the head of a public body the discretion to refuse to disclose legal advice and communications that are subject to solicitor client privilege.
Under solicitor client privilege, a legal advisor must refuse to disclose communications between the legal advisor and the client, unless the client consents to the disclosure. The privilege belongs to the client and can only be waived by the client.
Generally, the decision on whether it is required by law or otherwise in the public interest to waive privilege will be determined in the course of routine consultations between the client ministry and the Attorney General. However, in the unlikely event that the client ministry and the Attorney General are unable to agree on this issue, the basic principles underlying the role of the Attorney General support the following conclusions:
In regard to the disclosure of privileged documents in the documents in the conduct of litigation, the ultimate decision rests with the Attorney General; and
In all other circumstances (unrelated to the conduct of litigation), the ultimate decision rests with the Lieutenant Governor in Council. The Lieutenant Governor in Council means the Lieutenant Governor acting by and with the advice of, or by and with the advice and consent of, or in conjunction with, the Executive Council.
Section 14 protects information flowing in both directions between the legal advisor and the client. This means that solicitor client privilege applies to client-generated documents, as well as legal opinions. The document may be as formal as a communication between lawyer and client or as simple as notes on file made to assist the lawyer in litigation.
Section 14 is not limited to the protection of legal advice and communications between a legal advisor and a minister or public body. The client can be a third party which is not a public body under the Act, but whose privileged documents are in the custody or control of a public body, and where the client has not waived the privilege.
Section 14 of the Freedom of Information and Protection of Privacy Act
Decisions on whether to waive privilege should be determined through consultations between the client ministry and the Legal Services Branch of the Ministry of Attorney General or their designated legal advisors.
Public bodies must not produce to the commissioner any information in a record for which the public body is claiming solicitor-client privilege unless it is established that production of the record is necessary to decide the issue. Privileged documents shall not be produced automatically for viewing. (See section 44(2) (Power of commissioner in conducting investigations, audits or inquiries).)
Public bodies shall undertake a review, and determine whether section 14 applies to a particular record. A request made under a concurrent process should not be a factor in the public body making a decision with respect to access to that record.
Consult with Ministry Solicitor
Government public bodies must consult their designated legal counsel before disclosing a record that falls under the section 14 exception.
The legal advisors will determine if the information is privileged and whether the disclosure could injure the public body's legal proceedings or positions. The client considers the legal advisors' determination in deciding whether to assert or waive the privilege.
The head of the public body may waive any privilege arising to a document when exercising discretion.
Subject to solicitor client privilege
Solicitor client privilege ensures that public bodies communicate fully and frankly with their lawyers by making certain communications between clients and their legal advisors are exempt from disclosure.
Solicitor client privilege has two parts:
Solicitor client privilege; and
Contemplated litigation privilege.
Information must fall within one of these two privileges to fit under the section 14 exception.
Solicitor client privilege
Solicitor client privilege is available to protect a record from disclosure where there is a written communication between a legal advisor and a client, the communication is confidential, and the communication is directly related to seeking, formulating or giving legal advice.
Section 14 protects information flowing in both directions between the legal advisor and the client.
Section 14 is not limited to the protection of legal advice and communications between a legal advisor and a minister or a public body. The client can be a third party which is not a public body under the Act.
To establish that solicitor client privilege applies to any part of a record, all of the following conditions must be met:
- there is recorded communication;
- the communication is of a confidential nature;
- the communication is between a client (or its agent) and a legal advisor which may include any of the following;
- Articling students providing advice;
- Communications passed through an intermediary (for example an insurer);
- In circumstances where one party is an agent of the other; and
- the communication is directly related to seeking, formulating or giving legal advice.
The presence of an unnecessary third party at a meeting to discuss legal advice may signify that the communication was not of a confidential nature. In such a case, the section 14 exception may not apply.
Working papers used by a legal advisor to formulate a legal opinion are covered under the exception because the papers are directly related to giving legal advice. The fact that a legal advisor reviews an existing record does not bring that record within the scope of the section 14 exception because that record is not directly related to seeking legal advice. However, the legal opinion in the document could be withheld under the section 14 exception.
An applicant requests a copy of a memorandum from a public body lawyer to a Deputy Minister. The memorandum contains background information on a court case and the position taken by the public body’s Appeals Committee. It does not contain a recommended course of action or provide a legal opinion regarding the merits of the Appeals Committee's position. Solicitor client privilege would not apply to this memorandum as it is not directly related to seeking or giving legal advice.
Contemplated litigation privilege
The section 14 exception protects a record from release if the record was created or obtained for existing or contemplated litigation.
At the time the record is created, litigation must either have commenced or been anticipated, and the communication must have been made for the dominant purpose of obtaining legal advice on such litigation, or for use in litigation. Dominant purpose means the primary reason the record was created or used. A record that came into existence before an action is commenced will only fall under contemplated litigation privilege if litigation was a definite prospect or reasonable probability at the time of its creation.
A record that is routinely filled out by a public body will not generally meet the dominant purpose test for the contemplated litigation exception.
A statement given by a potential witness to summarize his or her knowledge of an event falls under the section 14 exception if the statement was obtained for the dominant purpose of litigation.
An injured person applied to the Workers' Compensation Board (WCB) for a copy of the Occurrence Report on her file. This Report is routinely filled out by the WCB when someone is injured. The injured applicant had threatened to sue the public body, and as a result, the Report was unusually detailed. Here, litigation was a reasonable probability, so if the dominant purpose of filing the Report is litigation, the WCB could withhold the Report under the contemplated litigation privilege.
Waiver of privilege
Waiver of solicitor client privilege by the client (usually the head of a public body) may be express (e.g., information is released to an applicant) or it may sometimes be implied from the actions of the public body. Waiver of the solicitor client privilege will be implied if information has been disclosed to a party with a separate interest from that of the public body. However, if the disclosure was to a party sharing a common interest in the outcome of litigation, the privilege would still exist. An exercise of discretion under section 14 in favour of disclosure will later be viewed as having constituted an implied waiver of the privilege.
Government public bodies must consult Legal Services Branch of the Ministry of Attorney General or their designated legal advisors prior to waiver of solicitor client privilege. Crown corporations and local public bodies may wish to consult their legal advisors for the same purpose to ensure that their legal position is not prejudiced. The legal advisors will determine if the information is privileged and whether the disclosure could injure the public body's legal proceedings or positions. The client considers the legal advisors' determination in deciding whether to assert or waive the privilege.
To exercise its obligation to regulate the conduct of lawyers, the Law Society of British Columbia may need to review solicitor client privileged records. The Legal Profession Act, S.B.C. 1998, chapter 9 provides that the confidentiality of the information in such records is maintained. The duty to maintain the confidentiality of privileged information extends to any person who gains knowledge of the information in the record in the course of carrying out a duty under the Legal Profession Act.
A document is not privileged if it is used in court proceedings. In presenting the document as part of legal proceedings, a public body indicates that the document is not privileged. Here the public body has expressly waived its solicitor client privilege, unless the court exercises its discretion and orders that the documents be kept confidential.
An applicant submits a request to the Law Society of British Columbia asking for copies of records prepared by the lawyer of a convicted murderer. The Law Society has copies of the records because it is investigating the conduct of the lawyer in the murder case. Solicitor client privilege applies to the records prepared by or for the lawyer for the client. The Law Society withholds the records from disclosure unless the client consents to disclosure.
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Last updated: July 13, 2007