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BC considers tighter restriction on release of legal advice

Following a legislative committee's recommendation to block the release of all advice public bodies receive from lawyers would be a mistake, says an information and privacy advocate.

Section 14 of British Columbia's Freedom of Information and Protection of Privacy Act now says, “The head of a public body may refuse to disclose to an applicant information that is subject to solicitor client privilege.”

An all party committee reviewing the Act this week in a report recommended the wording in the section be changed to say the head of a public body “must refuse” to release such information, though in situations where a public body is the client it could still choose to waive privilege.

The government should decline to act on that recommendation, said Vincent Gogolek, the policy director for the B.C. Freedom of Information and Privacy Association. To illustrate, he drew on a case outlined in a report the federal information and privacy commissioner released this week.

A professional historian and author sought records in a Library and Archives Canada file regarding a person who was involved in the Halifax explosion in 1917. “The institution refused to disclose certain records in this file, stating that it was still subject to solicitor-client privilege,” says the commissioner's report.

After much back and forth and “careful consideration”, Transport Canada was found to be in control of the records and the ministry “determined that [the file] held no litigation value and waived the solicitor-client privilege.” The records were eventually released.

But Gogolek said the case shows governments' instincts tend to be to block the release of such records. He joked, “What would the Kaiser do with this information?”

The relevant section of the B.C. legislation has worked just fine and should be left alone, he said.

Andrew MacLeod is The Tyee’s Legislative Bureau Chief in Victoria. Reach him here.

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