Public Right to Public Information

Ron Bolin: July 31, 2019

The following correspondence with the Office of the Information and Privacy Commissioner for BC outlines my correspondence with the OIPCBC and I hope defines my reasons for requesting the legal opinion obtained by the City and pursuing the OIPCBC in response to the refusal of the City to comply. Democracy, and even its stepchild Representative Democracy, is under attack from governments anxious to prevent the governed from governance which includes the governed. In the present case there is no evidence to suggest that the persons or reputations of anyone would be challenged by a legal opinion which would see the opinion obtained by public funds made public, i.e. nothing is shown to demonstrate that all of the conditions mentioned in the OIPC response have been fulfilled: in fact it appears to me that condition 2. “the communication must be of a confidential character” takes on the form of a catch 22.
Your opinion in this matter is requested. Should government have an arbitrary right to withhold legal opinions obtained by government which bear upon the rights of the public to information regarding public activities such as Public Hearings?
The Correspondence:
To OPIC (July 24, 2019 am):
In response to a question regarding the video recording and public release of Public Hearings, it was noted at an open Council meeting, that a request had been made for a legal opinion on the matter.
On May 2, 2019, I requested access to a copy of the legal opinion obtained by the City of Nanaimo with regard to the legality of the video capture and distribution of Public Hearings held by the City.
On May 6, 2019, the City refused to disclose that opinion pursuant to section 14 of FIPPA.
Legal advice
14 The head of a public body may refuse to disclose to an applicant information that is subject to solicitor client privilege.
On May 8, 2019, I requested the OIPCBC to review the City’s decision to withhold that information.
On June 11, 2019, I received a notice that the case was opened on May 9, 2019 (OIPC File: F19-79500)
On July 2, 2019, I was notified that an investigator had been assigned to OIPC File: F19-79500
On July 10, 2019, I was notified that my request for review had been denied on the ground of section 14 of the Freedom of Information and Protection of Privacy Act. I was referred to four conditions that must be established under section 14 and to OIPC Order F-16-26.
On July 14, 2019, I responded with my concern that the use of the undefined term “may” in the text of Section 4, implies arbitrary discretion by the public body in responding to requests for information regarding any issue of public concern which may involve a legal opinion, even where litigation is not involved. I requested an additional 14 days in which to respond.
On July 15, 2019, I received your email reiterating the position that section 14 permitted the public body to refuse to disclose information that is subject to solicitor-client privilege and suggesting that other legal processes might lead to its acquisition. This, of course, goes against what I believe to have been the reason for the existence of the OIPCBC, i.e. to allow citizens access to information without litigation where this is possible.
I was also granted time through July 24 in which to provide reasons why I believe the “may” in section 14 should not be interpreted arbitrarily in the present circumstance, if ever.
To the circumstances which I have indicated above, i.e. the absence of litigation in the matter as it has been presented to me, and in the light of OIPCBC Order F-19-18, April 12, 2019, which discusses both Legal Advice Privilege and Litigation Privilege and their limitations, I believe, barring the demonstration of the nature and types of documents which were involved in obtaining this legal opinion which require secrecy, that good governance requires that public access to Council meetings held as Public Hearings and established under Part 14 – Division 3 of the Local Government Act be available to the public on video, just as are, and have been for some years, other public meetings of Council falling under the Community Charter and for the same democratic reasons.
I find it impossible to fathom why Council meetings held as Public Hearings under the Local Government Act should be kept without video records for the public while those which Council holds under the powers granted them by the Community Charter are permitted to record and make available video records for public information and scrutiny. If the opinion obtained deals with the issue of democratic rights while not exposing any individual to discredit, certainly the public should be made aware of it.
I continue to find it impossible to believe that any opinion provided to a public body by a lawyer regarding a hypothetical situation not immediately involving litigation is to be kept any more secret in a democracy than is any other form of advice sought by a government on behalf of its citizens.
I hope that this will help to demonstrate my issue with your decision and look forward to hearing from you on the matter at your earliest convenience. I believe this matter to be at the heart of the rationale for the establishment of The Office of the Information & Privacy Commissioner.
Thank You for your consideration,
Ron Bolin
Nanaimo, BC

From OPIC (July 24, 2019 pm):
I have read your email below and thank you for providing your rational as to why the City of Nanaimo should not have applied section 14 to the requested records.
As I noted in my letter to you on July 10, 2019, the City elected not to provide OIPC with a copy of the records but provided a description of the records. The City maintains the records are legal opinions provided by lawyers, in which the City perused information on the legality of the implications of recording or publishing Public Hearings.
In other words, the City requested legal advice from a solicitor prior to making a decision or policy. Legal advice privilege protects confidential communications between solicitor and client for the purpose of obtaining, giving or formulating legal advice. In order for legal advice privilege to apply, four conditions must be established. Those conditions are:

1. there must be a communication, whether oral or written;
2. the communication must be of a confidential character;
3. the communication must be between a client (or his agent) and a legal advisor; and
4. the communication must be directly related to the seeking, formulating, or giving of legal advice.

If these four conditions are satisfied then the communications (and documents relating to it) are privileged. Legal advice privilege may apply to both direct and indirect communications.

In my opinion, with the information provided to my from the City, It is my view the records fall squarely under section 14 as I laid out in my letter to you.

If you do not agree with my analysis, you may request that the matter proceed to an inquiry, please contact me before July 31, 2019, If I have not heard from you by this date, I will assume you do not wish to do so and I will close this file.
For your reference, written inquiries are a quasi-judicial process whereby the parties make submissions. The submissions and issues in dispute are considered by the Commissioner or their delegate who issues an order. Absent an application for judicial review by any party, orders are binding on the parties. In addition, at this time it is currently taking approximately 14 to 18 months to be heard at inquiry.

Your comments, observations or questions are requested..