With the passage of ATIPPA, 2015, the legislature unanimously accepted the recommendations of the Wells Committee Report, which effectively repudiated previous amendments to the statute with Bill 29, putting an end to an era of significantly weakened oversight over how government handled information and ushering in the best access to information law in the country. Among the recommendations unanimously accepted was that

“The Act have no restriction on the right of the Commissioner to require production of any record for which solicitor-client privilege has been claimed and the Commissioner considers relevant to an investigation of a complaint.”

This was explicitly stated in the Explanatory Note accompanying the legislation and confirmed by the Minister responsible at the time during second reading when the bill was introduced in the House of Assembly.

Rather than accept an accountability regime which ensures effective and independent oversight of government, this government chose to seek a court ruling to undermine the legislature’s commitment to transparency and accountability it enacted in 2015. On Thursday, March 31, 2022, the Court sided with the government and found that the Commissioner could no longer review records relating to a denial of access to information if the denial cited solicitor-client privilege as its basis.

Furthermore, it appears from the ruling that a public body need only cite that section of the Act and no one, not even a court, will review the records to verify whether the claim is legitimate. Despite the Court explicitly acknowledging that the legislature intended that the Commissioner review solicitor-client records, the Court construed the legislation contrary to its purpose.

The Commissioner will be appealing the Court’s decision as a matter of public interest, to support the fundamental values of government transparency and accountability which are core to the purpose of this Office. At a time when the province is facing increasing financial and economic difficulties, it is ever more important that transparency be at the forefront.

By taking a position contrary to the intent of the legislature, it would appear this government is in the process of doing through the courts what would be politically unpalatable to do through the legislature, i.e., to shield itself from accountability. Specifically, this ruling means that the government, and indeed all public bodies, such as municipalities, crown corporations and others, can simply tell access to information requesters “no” and if they do so while citing this particular section of the Act and there will be no independent review or meaningful recourse. Courts have found that the government has made over-broad claims of this privilege in the past and, without oversight, there is no reason to think that this will not occur again in the future.

This matter could, however, more expeditiously be resolved through an immediate commitment from government to amend the legislation and remove any doubt that it is not above the law, and that the Commissioner must be able to review any record in the control or custody of a public body on investigating a complaint, to ensure that access to information laws are being respected and followed, in keeping with the commitment made by the government of the day when it introduced ATIPPA, 2015 in response to the ill-fated Bill 29 amendments. This was the recommendation of former Justice David Orsborn in his Report of the Statutory Review of ATIPPA, 2015, which has been with the government since last year.

“If this ruling stands, there will be no protection against spurious denials of access or overbroad claims of privilege,” said Commissioner Harvey. “It stabs at the heart of the very purpose of having an access to information law – independent oversight. Rather than attempting to tear down access to information through the courts, I call on the government to eliminate the unnecessary cost of this appeal, including the time and frustration of citizens seeking information. Amend the statute to provide even greater certainty that government is not above the law, thereby reassuring the public of its commitment to transparency and accountability.”

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Media contact
Sean Murray
Director of Research & Quality Assurance
709-729-6309