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Recommended change would send more FOI decisions to court

A ruling earlier this week by British Columbia's acting information and privacy commissioner Paul Fraser shows what's wrong with a committee's recommended change to the province's freedom of information law, said Freedom of Information and Privacy Association policy director Vincent Gogolek.

The all party Special Committee to Review the Freedom of Information and Protection of Privacy Act recommended in its May 31 report that the law be changed so that “decisions on the privileged status of materials when FOI requests are made must be referred to the Supreme Court of British Columbia.”

That change would take such decisions—where the requested records involve legal advice—out of the hands of the commissioner, and put them into court. It would add complication and expense for applicants, said Gogolek, as well as tying up the province's courts.

Coincidentally, Fraser released a ruling June 7 that made a decision about that very section of the act.

The Vancouver School Board had refused to release sections of a report Don Avison wrote following the “trial and conviction of a teacher for indecent assault and gross indecency.” Avison had reviewed the school board's policies and practices.

When someone requested a copy of Avison's report, the board released it only after severing parts of it citing the section of the FOIPA that allows the withholding of records protected by solicitor-client privilege.

Fraser, however, ruled the board was in the wrong. “Legal professional privilege did not apply because Avison was not retained to act as a legal advisor to the School District,” wrote Fraser. “As a result, his report did not arise within a solicitor-client relationship.”

While Fraser was able to deal with the case in a straightforward and relatively inexpensive way, that would change if the committee's recommendation goes through, said Gogolek.

“If the Special Committee recommendation is put into law, this case would have gone to the B.C. [Supreme Court] directly, if the applicant had the money to go to court,” he said.

Committee chair Ron Cantelon was unavailable by posting time.

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

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