Evelyn Rideout Appellant And: Minister of Municipal v. Intergovernmental Affairs, 2018 NLSC 217

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Rideout v. Newfoundland and Labrador (Municipal and Intergovernmental Affairs) , 2018 NLSC 217 Date : October 30, 2018 Docket : 201504G0275 Between: Evelyn Rideout Appellant And: Minister of Municipal and Intergovernmental Affairs First Respondent And: Milly Meaney Director of crown lands Second Respondent And: Jonathan Grandy western regional lands manager Third Respondent And: Edward P. Ring in his capacity as THE INFORMATION AND PRIVACY COMMISSIONER OF NEWFOUNDLAND AND LABRADOR Intervenor Before: Justice Brian F. Furey

On Appeal From: A decision of the Minister of Municipal and Intergovernmental Affairs pursuant to the Access to Information andProtection of Privacy Act, 2015 following the receipt of Report A-2015-011 issued by the Information and Privacy Commissioner on the14th day of December, 2015. Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: February 8, 2017

Summary: This is an appeal of a decision by the First Respondent refusing a request by the Appellant for records. The First Respondent providedsome records but withheld other records in light of the exceptions set out in sections 29, 30 and 40 of the Act. Held: The appeal wasdismissed. The Court found that the Appellant did not present convincing evidence to prove that there is a public interest in disclosurethat outweighs the reasons for the exceptions in sections 29 and 30. The Court found that the Minister acted appropriately in withholdingthe records in accordance with sections 29, 30 and 40.

Appearances: Evelyn Rideout Appearing on her own behalf Jessica R. Pynn Appearing on behalf of Minister of Municipal and Intergovernmental Affairs Jessica R. Pynn Appearing on behalf of Milly Meaney Jessica R. Pynn Appearing on behalf of Jonathan Grandy Andrew A. Fitzgerald Appearing on behalf of Edward P. Ring Authorities Cited: CASES CONSIDERED: Mastropietro v. Newfoundland and Labrador (Education), 2016 NLTD(G) 156; Canada (InformationCommissioner) v. Canada (Minister of Industry), 2007 FCA 212; Ontario (Ministry of Finance) v. Ontario (Inquiry Officer), (ON CA), [1999] O.J. No. 484, 118 O.A.C. 108 (Ont.

C.A.); Criminal Lawyers’ Association v. Ontario (Ministry of PublicSafety and Security), 2010 SCC 23; Solosky v. The Queen, (SCC), [1980] 1 S.C.R. 821; Imperial Tobacco CompanyLimited v. Newfoundland and Labrador (Attorney General), 2007 NLTD 172; Pritchard v. Ontario (Human Rights Commission), 2004SCC 31; Blank v. Canada (Department of Justice), 2006 SCC 39; Ontario (Ministry of Correctional Services) v. Goodis, 2006 SCC 31;Ontario (Ministry of Correctional Services) v. Goodis, 2006 SCC 31; John Doe v. Ontario (Finance), 2014 SCC 36; and Newfoundlandand Labrador (Information and Privacy Commissioner) v.

Eastern Regional Integrated Health Authority, 2015 NLTD(G) 183. STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015, S.N.L., 2015, c. A-1.2 as am.; Access toInformation and Protection of Privacy Act, S.N.L. 2002, c. A-1.1, as am.; and Ontario Freedom of Information and Protection of PrivacyAct, R.S.O. 1990.

REASONS FOR JUDGMENT Furey, J. : INTRODUCTION [ 1 ] This matter comes before the Court as an appeal under

Part II of the Access to Information and Protection of Privacy Act , 2015 , S.N.L., 2015, c. A-1.2 as am. (hereinafter called “the Act ”). [ 2 ] It involves an appeal by Ms.

Evelyn Rideout of a decision of the Minister of Municipal and Intergovernmental Affairs (hereinafter “the Minister”) to refuse to disclose certain information which the Information and Privacy Commissioner of Newfoundland and Labrador (hereinafter “the Commissioner”) had determined the Department of Municipal and Intergovernmental Affairs (hereinafter “the Department”) was entitled to continue to withhold. [ 3 ] A brief history of this matter notes the following events. [ 4 ] On August 26, 2015, the Department received an access to information request from Evelyn Rideout involving documents related to a Licence to Occupy at Grand Lake Camp 33. [ 5 ] On August 26, 2015, Ms.

Tara Kelly, the Access to Information and Protection of Privacy Coordinator for the Department responded to Ms. Rideout, acknowledged receipt of the request and sought clarification regarding a date within the request. Ms. Rideout provided this clarification. [ 6 ] On September 24, 2015, Ms. Kelly responded to Ms. Rideout’s request. Ms. Kelly indicated that access would be provided to some of the information requested but that other information would not be disclosed pursuant to sections 29(1), 30 and 40 of the Act . [ 7 ] On October 6, 2015, Ms.

Rideout appealed the decision of the Department to the Commissioner. [ 8 ] On October 27, 2015, the Department wrote to the Commissioner outlining its position regarding Ms. Rideout’s access to information request and also noting that further information had been found in relation to the request. These documents had been withheld by an employee of the Department due to a misunderstanding of the word “note”. [ 9 ] In November 2015, the employees of the Department and of the Commissioner engaged in discussions regarding the responsive record in an attempt to resolve the matter informally.

The Department agreed to release some information previously withheld pursuant to sections 29 and 40 as well as material deemed non-responsive. However, the entirety of the complaint could not be resolved informally and the matter went to a formal investigation. [ 10 ] On December 14, 2015, the Commissioner issued a Report (A-2015-011) (hereinafter “the Report”) finding that taking into consideration information the Department agreed to release during the informal investigation, the Department had properly withheld the responsive record in accordance with sections 29, 30 and 40 of the Act .

The Commissioner also agreed with the Department’s position regarding

section 9 of the Act that the public interest in disclosure did not outweigh the reasons for the application of sections 29 and 30. The Commissioner’s Report stated the following at paragraph 11: 11 Pursuant to

section 47 of the ATIPPA, 2015 I recommend that the Department of Municipal and Intergovernmental Affairs continue to withhold the information it has severed based on the exceptions in sections 29, 30 and 40 of the ATIPPA, 2015 in accordance with the agreement reached between the Department and this Office on December 8, 2015, and grant the Applicant access to the rest of the responsive record. [ 11 ] On December 15, 2015, Ms. Kelly wrote to Ms. Rideout to advise that the Department would release the information agreed to during the informal investigation. [ 12 ] On December, 22, 2015, Ms.

Rideout filed a Notice of Appeal under the Act stating that she was appealing the decision of the Commissioner allowing the Department to withhold information based on the exceptions set out in sections 29, 30 and 40 of the Act . I would point out that the appeal by Ms. Rideout is with respect to the decision of the Minister as the head of a public body – the Department - to deny access to certain information after the receipt of the Commissioner’s Report pursuant to

section 54 of the Act . [ 13 ] On January 7, 2016, the Commissioner filed a Notice of Intervention pursuant to subsection 56(3) of the Act . the law [ 14 ] Access to information in the possession of a public body is governed by the Act . Subsection 3(1) states that “The purpose of this Act is to facilitate democracy”. Three processes are noted. [ 15 ] Sections 3, 9, 29, 30, 40, 43, 54, 56, 59 and 60 of the Act are pertinent to my consideration of this appeal: 3.

(1) The purpose of this Act is to facilitate democracy through (

a) ensuring that citizens have the information required to participate meaningfully in the democratic process;

(

b) increasing transparency in government and public bodies so that elected officials, officers and employees of public bodies remain accountable; and (

c) protecting the privacy of individuals with respect to personal information about themselves held and used by public bodies. 9.

(1) Where the head of a public body may refuse to disclose information to an applicant under a provision listed in subsection (2), that discretionary exception shall not apply where it is clearly demonstrated that the public interest in disclosure of the information outweighs the reason for the exception. (2) Subsection (1) applies to the following sections: (

a) section 28 (local public body confidences); (

b) section 29 (policy advice or recommendations); (c) subsection 30 (1) (legal advice); (

d) section 32 (confidential evaluations); (

e) section 34 (disclosure harmful to intergovernmental relations or negotiations); (

f) section 35 (disclosure harmful to the financial or economic interests of a public body); (

g) section 36 (disclosure harmful to conservation); and (

h) section 38 (disclosure harmful to labour relations interests of public body as employer).

(3) Whether or not a request for access is made, the head of a public body shall, without delay, disclose to the public, to an affected group of people or to an applicant, information about a risk of significant harm to the environment or to the health or safety of the public or a group of people, the disclosure of which is clearly in the public interest. (4) Subsection (3) applies notwithstanding a provision of this Act.

(5) Before disclosing information under subsection (3), the head of a public body shall, where practicable, give notice of disclosure in the form appropriate in the circumstances to a third party to whom the information relates. 29.

(1) The head of a public body may refuse to disclose to an applicant information that would reveal (

a) advice, proposals, recommendations, analyses or policy options developed by or for a public body or minister; (

b) the contents of a formal research report or audit report that in the opinion of the head of the public body is incomplete and in respect of which a request or order for completion has been made by the head within 65 business days of delivery of the report; or (

c) draft legislation or regulations.

(2) The head of a public body shall not refuse to disclose under subsection (1) (

a) factual material; (

b) a public opinion poll; (

c) a statistical survey; (

d) an appraisal; (

e) an environmental impact statement or similar information; (

f) a final report or final audit on the performance or efficiency of a public body or on any of its programs or policies;

(

g) a consumer test report or a report of a test carried out on a product to test equipment of the public body; (

h) a feasibility or technical study, including a cost estimate, relating to a policy or project of the public body; (

i) a report on the results of field research undertaken before a policy proposal is formulated; (

j) a report of an external task force, committee, council or similar body that has been established to consider a matter and make a report or recommendations to a public body; (

k) a plan or proposal to establish a new program or to change a program, if the plan or proposal has been approved or rejected by the head of the public body; (

l) information that the head of the public body has cited publicly as the basis for making a decision or formulating a policy; or (

m) a decision, including reasons, that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of the applicant. (3) Subsection (1) does not apply to information in a record that has been in existence for 15 years or more. 30.

(1) The head of a public body may refuse to disclose to an applicant information (

a) that is subject to solicitor and client privilege or litigation privilege of a public body; or (

b) that would disclose legal opinions provided to a public body by a law officer of the Crown.

(2) The head of a public body shall refuse to disclose to an applicant information that is subject to solicitor and client privilege or litigation privilege of a person other than a public body. 40.

(1) The head of a public body shall refuse to disclose personal information to an applicant where the disclosure would be an unreasonable invasion of a third party's personal privacy.

(2) A disclosure of personal information is not an unreasonable invasion of a third party's personal privacy where (

a) the applicant is the individual to whom the information relates; (

b) the third party to whom the information relates has, in writing, consented to or requested the disclosure; (

c) there are compelling circumstances affecting a person’s health or safety and notice of disclosure is given in the form appropriate in the circumstances to the third party to whom the information relates; (

d) an Act or regulation of the province or of Canada authorizes the disclosure; (

e) the disclosure is for a research or statistical purpose and is in accordance with

section 70 ; (

f) the information is about a third party's position, functions or remuneration as an officer, employee or member of a public body or as a member of a minister's staff; (

g) the disclosure reveals financial and other details of a contract to supply goods or services to a public body; (

h) the disclosure reveals the opinions or views of a third party given in the course of performing services for a public body, except where they are given in respect of another individual; (

i) public access to the information is provided under the Financial Administration Act ; (

j) the information is about expenses incurred by a third party while travelling at the expense of a public body; (

k) the disclosure reveals details of a licence, permit or a similar discretionary benefit granted to a third party by a public body, not including personal information supplied in support of the application for the benefit; (

l) the disclosure reveals details of a discretionary benefit of a financial nature granted to a third party by a public body, not including (

i) personal information that is supplied in support of the application for the benefit, or (ii) personal information that relates to eligibility for income and employment support under the Income and Employment Support Act or

to the determination of income or employment support levels; or (

m) the disclosure is not contrary to the public interest as described in subsection (3) and reveals only the following personal information about a third party: (

i) attendance at or participation in a public event or activity related to a public body, including a graduation ceremony, sporting event, cultural program or club, or field trip, or (ii) receipt of an honour or award granted by or through a public body.

(3) The disclosure of personal information under paragraph (2)(

m) is an unreasonable invasion of personal privacy where the third party whom the information is about has requested that the information not be disclosed.

(4) A disclosure of personal information is presumed to be an unreasonable invasion of a third party's personal privacy where (

a) the personal information relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation; (

b) the personal information is an identifiable part of a law enforcement record, except to the extent that the disclosure is necessary to dispose of the law enforcement matter or to continue an investigation; (

c) the personal information relates to employment or educational history; (

d) the personal information was collected on a tax return or gathered for the purpose of collecting a tax; (

e) the personal information consists of an individual's bank account information or credit card information; (

f) the personal information consists of personal recommendations or evaluations, character references or personnel evaluations; (

g) the personal information consists of the third party's name where (

i) it appears with other personal information about the third party, or (ii) the disclosure of the name itself would reveal personal information about the third party; or (

h) the personal information indicates the third party's racial or ethnic origin or religious or political beliefs or associations.

(5) In determining under subsections (1) and (4) whether a disclosure of personal information constitutes an unreasonable invasion of a third party's personal privacy, the head of a public body shall consider all the relevant circumstances, including whether (

a) the disclosure is desirable for the purpose of subjecting the activities of the province or a public body to public scrutiny; (

b) the disclosure is likely to promote public health and safety or the protection of the environment; (

c) the personal information is relevant to a fair determination of the applicant's rights; (

d) the disclosure will assist in researching or validating the claims, disputes or grievances of aboriginal people; (

e) the third party will be exposed unfairly to financial or other harm; (

f) the personal information has been supplied in confidence; (

g) the personal information is likely to be inaccurate or unreliable; (

h) the disclosure may unfairly damage the reputation of a person referred to in the record requested by the applicant; (

i) the personal information was originally provided to the applicant; and (

j) the information is about a deceased person and, if so, whether the length of time the person has been deceased indicates the disclosure is not an unreasonable invasion of the deceased person’s personal privacy. 43.

(1) On an investigation of a complaint from a decision to refuse access to a record or part of a record, the burden is on the head of a public body to prove that the applicant has no right of access to the record or part of the record.

(2) On an investigation of a complaint from a decision to give an applicant access to a record or part of a record containing personal information that relates to a third party, the burden is on the head of a public body to prove that the disclosure of the information would not be contrary to this Act or the regulations.

(3) On an investigation of a complaint from a decision to give an applicant access to a record or part of a record containing information, other than personal information, that relates to a third party, the burden is on the third party to prove that the applicant has no right of access to the record or part of the record. 54. An applicant or a third party may, not later than 10 business days after receipt of a decision of the head of the public body under

section 49 , commence an appeal in the Trial Division of the head’s decision to (

a) grant or refuse access to the record or part of the record; or (

b) not make the requested correction to personal information. 56.

(1) Where a person appeals a decision of the head of a public body, the notice of appeal shall name the head of the public body involved as the respondent.

(2) A copy of the notice of appeal shall be served by the appellant on the commissioner and the minister responsible for this Act.

(3) The minister responsible for this Act, the commissioner, the applicant or a third party may intervene as a party to an appeal under this Division by filing a notice to that effect with the Trial Division.

(4) Notwithstanding subsection (3), the commissioner shall not intervene as a party to an appeal of (

a) a decision of the head of the public body under

section 21 to disregard a request; or (

b) a decision, act or failure to act of the head of a public body in respect of which the commissioner has refused under

section 45 to investigate a complaint.

(5) The head of a public body who has refused access to a record or part of it shall, on receipt of a notice of appeal by an applicant, make reasonable efforts to give written notice of the appeal to a third party who (

a) was notified of the request for access under

section 19 ; or (

b) would have been notified under

section 19 if the head had intended to give access to the record or part of the record.

(6) Where an appeal is brought by a third party, the head of the public body shall give written notice of the appeal to the applicant.

(7) The record for the appeal shall be prepared by the head of the public body named as the respondent in the appeal. 59.

(1) The Trial Division shall review the decision, act or failure to act of the head of a public body that relates to a request for access to a record or correction of personal information under this Act as a new matter and may receive evidence by affidavit.

(2) The burden of proof in

section 43 applies, with the necessary modifications, to an appeal.

(3) In exercising its powers to order production of documents for examination, the Trial Division shall take reasonable precautions, including where appropriate, receiving representations without notice to another person, conducting hearings in private and examining records in private, to avoid disclosure of (

a) any information or other material if the nature of the information or material could justify a refusal by a head of a public body to give access to a record or part of a record; or (

b) the existence of information, where the head of a public body is authorized to refuse to confirm or deny that the information exists under subsection 17 (2). 60.

(1) On hearing an appeal the Trial Division may (

a) where it determines that the head of the public body is authorized to refuse access to a record under this Part and, where applicable, it has not been clearly demonstrated that the public interest in disclosure of the information outweighs the reason for the exception, dismiss the appeal; (

b) where it determines that the head of the public body is required to refuse access to a record under this Part, dismiss the appeal; or (

c) where it determines that the head is not authorized or required to refuse access to all or part of a record under this Part, (

i) order the head of the public body to give the applicant access to all or part of the record, and (ii) make an order that the court considers appropriate.

(2) Where the Trial Division finds that a record or part of a record falls within an exception to access under this Act and, where applicable, it has not been clearly demonstrated that the public interest in disclosure of the information outweighs the reason for the exception, the court shall not order the head to give the applicant access to that record or part of it, regardless of whether the exception requires or merely authorizes the head to refuse access.

(3) Where the Trial Division finds that to do so would be in accordance with this Act or the regulations, it may order that personal information be corrected and the manner in which it is to be corrected. issues [ 16 ] The issues for determination in this appeal are: a. What is the appropriate procedure to be followed in this appeal and what is the standard of review of the decision of the public body to deny access to information? b. Was the record appropriately withheld pursuant to

section 29 of the Act ? c. Was the record appropriately withheld pursuant to

section 30 of the Act ? d. Was the record appropriately withheld pursuant to

section 40 of the Act ? e. How should the Court interpret the public interest provision contained in

section 9 of the Act with respect to

section 29 and

section 30 of the Act ? submissions Ms. Rideout [ 17 ] Ms. Rideout is seeking full access to all information she requested from the Department when she filed her access to information request. In her written argument, Ms. Rideout outlined that she was requesting information in an attempt to find out why the Department would not enforce their own rules and regulations regarding illegal possession of Crown Lands. [ 18 ] She argued that the exemptions in sections 29, 30 and 40 of the Act do not outweigh the public interest override in

section 9. [ 19 ] She referred to the Guidelines for Public Interest Override issued by the Commissioner. She noted that the document stated the following at page 2: The purpose of adding this public interest override includes promoting democracy by increasing public participation in order to facilitate better informed decision-making. As well, it can increase scrutiny, discussion, comment and review between citizens and the

government. Fundamentally, it is grounded in the idea that government information is managed for public purposes and that the publicare the owners of the information. [20] She noted the purpose of

section 29 is to allow public servants to speak openly without having fear of being wrong. [21] She disagreed with several statements set out in the factum of counsel for the Respondents, namely that (1) her request is aprivate matter; (2) there was no allegation of bad faith made by the Citizen’s Representative against the Respondents in his review of acomplaint Ms. Rideout made to the Office of the Citizen’s Representatives; and (3) the Citizen’s Representative’s report makesrecommendations relating to Ms.

Rideout only and these do not relate to the public interest. [22] She noted that the chief purpose of the Act is to promote democracy, particularly “increasing transparency in government andpublic bodies so that elected officials, officers and employees of public bodies remain accountable”. [23] While each case is of a personal nature, it still lays the grounds for prima facie cases that are adopted into law. Decisions madeby the Department affect a group of people from the residents of Grand Lake to Licence to Occupy owners. The information soughtrelates to all Grand Lake owners.

This qualifies as a public interest for all Licence to Occupy owners. Ms. Rideout submitted that sheshould be granted access to all the documents requested. That is, the appeal should be allowed and she should be granted access to allsevered information as well as other information she never received. [24] Following the completion of her submissions, I asked Ms. Rideout if she was still waiting on any documents. She replied thatshe had received certain documents but not some documents the Commissioner recommended she receive.

Counsel for the Respondentsstated she had previously checked on the latter documents and was told that these were sent. She agreed to check on this again. [25] Counsel for the Respondents informed the Court subsequently by email of the following: a. The responsive record was originally couriered to Ms. Rideout on December 15, 2015; b. The responsive record was sent to Ms. Rideout by registered mail after the court appearance on February 8, 2017; however, neitherMs. Rideout nor Canada Post could confirm that it had been received; and c. The responsive record was, therefore, couriered to Ms.

Rideout again on March 3, 2017 and was received. The Respondents [26] Counsel outlined the appeal process. She noted the appeal was brought pursuant to

section 54 of the Act. The Court’s review isto be conducted in accordance with

section 59 of the Act. Subsection 59(2) and

section 43 of the Act set out that the Minister has theburden to prove that Ms. Rideout has no right of access to the record as it relates to the exemptions applied by the Province in sections29, 30 and 40. [27] With respect to

section 9 of the Act and the public interest, counsel referred to Mastropietro v. Newfoundland and Labrador(Education), 2016 NLTD(G) 156 in which Murphy, J. stated at paragraph 44 that “. . . the onus of clearly demonstrating that the publicinterest in disclosure outweighs the reasons for non-disclosure rests with the party seeking access to the record . . . ”. Thus, the onus ofproving the public interest lies with the Appellant, Ms. Rideout. [28] Counsel also pointed out that in accordance with

section 60 of the Act, if the Court finds that a public body is authorized torefuse access to a record, and it has not been clearly demonstrated that the public interest in disclosure of the information outweighs thereason for the exception, the appeal may be dismissed. [29] Counsel submitted that this Court should review the Minister’s determination that sections 29, 30 and 40 of the Act apply to therecord on a standard of correctness. As support for this position, counsel referred to the statement of the Federal Court of Appeal inCanada (Information Commissioner) v. Canada (Minister of Industry), 2007 FCA 212 at paragraph 65 where Evans, J.A. stated in part:“Questions relating to the

interpretation of the Access Act by an institution head in refusing to disclose records in response to an accessrequest are reviewable on a standard of correctness . . . ”. [30] With respect to

section 9 of the Act and the Minister’s determination that the public interest does not outweigh the reasons forthe relevant exemptions, counsel submitted that the Court’s review should be based on a standard of reasonableness. This approach wasoutlined by the Ontario Court of Appeal in Ontario (Ministry of Finance) v. Ontario (Inquiry Officer), (ON CA),[1999] O.J. No. 484, 118 O.A.C. 108 (Ont. C.A.) in the following passage at paragraphs 1 and 2: 1 This is an appeal from the judgment of of the Divisional Court of February 6, 1998 wherein that court quashed the order of the inquiryofficer of May 27, 1997.

In their reasons for judgment, the majority held that the standard of review of a decision of the inquiry officerunder s. 23 of the Freedom of Information and Protection of Privacy Act R.S.O. 1990 c. F. 31 is correctness. We disagree. We are insubstantial agreement with the reasons set out in the dissenting judgment of MacDougall J., in particular on the issue of the standard ofreview. 2 The legislature has entrusted the application of s. 23 to the issue of disclosure of any particular record first to the head, and then to theinquiry officer. Both the application of the

section and therefore its

interpretation are within the expertise of the inquiry officer under theAct whose decision must be accorded deference by the courts. The standard of review is therefore reasonableness. [31] In addition, the Supreme Court of Canada in Criminal Lawyers’ Association v. Ontario (Ministry of Public Safety andSecurity), 2010 SCC 23 stated the following at paragraph 70:

70 Decisions of the Assistant Commissioner regarding the

interpretation and application of the FIPPA are generally subject to review ona standard of reasonableness (see Ontario (Minister of Finance) v. Higgins (1999), (ON CA), 118 O.A.C. 108, atpara. 3, leave to appeal refused, [2000] 1 S.C.R. xvi; Ontario (Information and Privacy Commissioner, Inquiry Officer) v. Ontario(Minister of Labour, Office of the Worker Advisor) (1999), (ON CA), 46 O.R. (3d) 395 (C.A.), at paras. 15-18;Ontario (Attorney General) v. Ontario (Freedom of Information and Protection of Privacy Act Adjudicator) (2002), (ON CA), 22 C.P.R. (4th) 447 (Ont.

C.A.), at para. 3. [32] Counsel noted that these two cases referenced a review of the Commissioner’s decision but submitted the same standard ofreview applies to decisions of the Minister in relation to public interest. She also submitted that representatives of the Department wereparticularly qualified to determine what information should and should not be disclosed in the public interest. [33] Counsel submitted that portions of the responsive record have been appropriately withheld pursuant to section 29(1)(

a) of theAct. Counsel noted the material redacted contains both advice and recommendations developed by employees of the Province. [34] Counsel indicated

section 29 of the Act has not yet been considered by this Court. She noted it is substantially similar to section20 of the former Act – Access to Information and Protection of Privacy Act, S.N.L. 2002, c. A-1.1, as am. [35]

Section 20 of the former Act was discussed by the Commissioner in Report A-2011-007. The Commissioner outlined thecorrect

interpretation of “advice and recommendations”. In paragraph 16 of that Report, the Commissioner stated in part: 16 . . . 2. The term “advice or recommendations” must be understood in light of the context and purpose of the ATIPPA. Section 3(1)provides that one of the purposes of the ATIPPA is to give “the public a right of access to records” with “limited exceptions to the rightof access.” 3. The words “advice” and “recommendations” have similar but distinct meanings.

The term “recommendations” relate to asuggested course of action. “Advice” relates to an expression of opinion on policy-related matters such as when a public officialidentifies a matter for decision and sets out the options, without reaching a conclusion as to how the matter should be decided or whichof the options should be selected. 4.

Neither “advice” nor “recommendations” encompass factual material. [36] Counsel asserted that portions of the responsive record set out options identified by public officials within the Departmentspecifically pertaining to a suggested course of action or an expression of opinion. She noted

section 29 material was redacted in multipleother places within the 708 pages of responsive material. [37] The use of

section 29 in this instance was proper and was to protect advice and recommendations being offered by and toemployees of the Department. Counsel concluded this met the intent of the

section 29 exemption to disclose. She also noted that theCommissioner supported this submission in his Report. [38] Section 30(1)(

a) of the Act refers to information that is subject to solicitor-client privilege. [39] Counsel noted that in Solosky v. The Queen, (SCC), [1980] 1 S.C.R. 821, the Supreme Court of Canada set outthe three requirements in paragraph 28 that must be met in order for solicitor-client privilege to apply. There must be a communicationbetween solicitor and client which entails the seeking or giving of legal advice and which is intended to be confidential by the parties. [40] Green, J., as he then was, also outlined these criteria in Imperial Tobacco Company Limited v.

Newfoundland and Labrador(Attorney General), 2007 NLTD 172 at paragraph 46. He stated: 46 Generally, each communication must meet three criteria for the privilege to exist: (

i) there must be a communication between asolicitor, acting in his or her professional capacity, and the client; (ii) the communication must entail the seeking or giving of legaladvice; and (iii) the communication must be intended to be confidential by the parties. See Solosky, at p. 837; R. v. B.B. [2001] N.J.

No.203, at para. [26]. [41] Counsel noted there was one email (included many times) in the records that was clearly a written communication between thesolicitor and the Department of Justice and Public Safety to employees of that solicitor’s client department, Municipal Affairs. [42] Counsel pointed out that the information contained within the record, to be considered solicitor-client privileged, must be of alegal nature. She referred to Pritchard v.

Ontario (Human Rights Commission), 2004 SCC 31 in which Major, J. stated the following atparagraph 16: 16 Generally, solicitor-client privilege will apply as long as the communication falls within the usual and ordinary scope of theprofessional relationship. The privilege, once established, is considerably broad and all-encompassing. In Descôteaux v.

Mierzwinski, (SCC), [1982] 1 S.C.R. 860, the scope of the privilege was described, at p. 893, as attaching “to all communicationsmade within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, andconsequently even before the formal retainer is established”. The scope of the privilege does not extend to communications: (1) wherelegal advice is not sought or offered; (2) where it is not intended to be confidential; or (3) that have the purpose of furthering unlawful

conduct: see Solosky, supra, at p. 835. [43] Counsel submitted that the Government lawyer who wrote the relevant email was acting within the ordinary scope of hisprofessional relationship and was offering legal advice to the client department. [44] In Imperial Tobacco Company, Green, J. stated at paragraph 45 that: “The notion of solicitor-client privilege is fundamental tothe operation of our legal system. . . .” Green, J. also noted that a basic principle of the privilege is the expectation of confidentiality thatflows from the solicitor-client relationship. [45] Counsel noted the principle of solicitor-client privilege has evolved from a rule of evidence into substantive law.

She referredto Blank v. Canada (Department of Justice), 2006 SCC 39 in which Fish, J. stated at paragraph 26: 26 Much has been said in these cases, and others, regarding the origin and rationale of the solicitor-client privilege. The solicitor-clientprivilege has been firmly entrenched for centuries. It recognizes that the justice system depends for its vitality on full, free and frankcommunication between those who need legal advice and those who are best able to provide it.

Society has entrusted to lawyers the taskof advancing their clients’ cases with the skill and expertise available only to those who are trained in the law. They alone can dischargethese duties effectively, but only if those who depend on them for counsel may consult with them in confidence. The resultingconfidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice. [46] Counsel submitted that the lawyer and the client department intended for the email and the questions and advice contained in itto remain confidential.

The lawyer was acting within the scope of his professional duties as a lawyer and was offering legal advice. [47] Counsel concluded that the three parts of the test outlined in Solosky were met. The relevant portions of the responsive recordare solicitor-client privileged and were appropriately withheld. [48] Section 30(1)(

b) of the Act applies to information that would disclose legal opinions. Counsel stated that this exemption todisclosure related to only one document in the responsive record. In an email, the advice provided by the solicitor for the Department ofJustice and Public Safety was discussed by one employee with other colleagues. Counsel pointed out this is the same advice which theProvince submitted is solicitor-client privileged. The solicitor is not copied on the email but the opinion is disclosed. Counsel suggestedthat section 30(1)(

b) applies and the information was appropriately withheld by the Department. [49] Counsel noted that the Commissioner, in his Report, found that

section 30 was correctly applied in that the relevant materialhad been appropriately withheld by the Department. [50]

Section 40 of the Act deals with personal information. Counsel indicated the information withheld from the Appellant in thisinstance was recorded information about identifiable individuals. Once the information was determined as personal, and it did not comewithin the exceptions set out in subsection 40(2), the Department could not release it to the Appellant. [51] Counsel noted the Commissioner agreed with this conclusion in his Report. [52] With respect to the issue of the public interest override set out in

section 9 of the Act, counsel submitted that the public interestin disclosure of the information does not outweigh the reasons for the exceptions in sections 29 and 30. [53] She reiterated that the onus of proof that the public interest outweighs the reasons for the exception is on the person seekingaccess to the records. In this instance, that means the Appellant bears the onus. [54] Counsel referred to the decision of Murphy, J. in Mastropietro where the Justice quoted a decision of the Information PrivacyCommissioner for Ontario.

At paragraph 48, Murphy, J. stated the following: 48 The Information and Privacy Commissioner for Ontario dealt with the balancing of the public interest in disclosure and the reasonsfor non-disclosure in Re Ontario (Human Rights Commission) (Re), (ON IPC) Order PO-2480 at page 6: For

section 23 to apply, two requirements must be met. First, there must be a compelling public interest in the disclosure of the records. Second, this interest must clearly outweigh the purpose of the exemption [see Order P-1398, upheld on judicial review in Ontario(Ministry of Finance) v. Ontario (Information and Privacy Commissioner) (1999), (ON CA), 118 O.A.C. 108 (C.A.),leave to appeal refused (January 20, 2000), Doc. 27191 (S.C.C.)]. In Order P-1398, Senior Adjudicator John Higgins made the followingstatements regarding the application of

section 23: An analysis of

section 23 reveals two requirements which must be satisfied in order for it to apply: (1) there must be a compellingpublic interest in disclosure, and (2) this compelling public interest must clearly outweigh the purpose of the exemption. If a compelling public interest is established, it must then be balanced against the purpose of any exemptions that have been found toapply.

Section 23 recognizes that each of the exemptions listed, while serving to protect valid interests, must yield on occasion to thepublic interest in access to information that has been requested. An important consideration in this balance is the extent to whichdenying access to the information is consistent with the purpose of the exemption. In considering whether there is a “public interest” in disclosure of a record, the first question to ask is whether there is a relationship

between the record and the Act’s central purpose of shedding light on the operations of government [Order P-984]. Previous orders have stated that in order to find a compelling public interest in disclosure, the information in the record must serve the purpose of informing the citizenry about the activities of their government, adding in some way to the information the public has to make effective use of the means of expressing public opinion or to make political choices [Order P-984].

A public interest does not exist where the interests being advanced are essentially private in nature [Orders P-12, P-347, P-1439]. Where a private interest in disclosure raises issues of more general application, a public interest may be found to exist [Order MO-1564]. Any public interest in non -disclosure that may exist also must be considered [ Ontario Hydro v. Mitchinson , [1996] O.J. No. 4636 (Div. Ct.) ]. [ 55 ] Counsel pointed out the Appellant in her factum argued that the material redacted pursuant to

section 29 should be released as the public interest in disclosure outweighs the reason for the exemption. Counsel noted the reason for the

section 29 exemption as stated in the ATIPPA Policy Manual is that “section 29 may be applied by public bodies in circumstances where the withholding of information will protect the open and frank discussion of policy issues within the public service. . . .” She stated that the Commissioner, in his Report, also addressed the purpose of

section 29. At paragraph 6, he stated that: “The intent of this exception (s. 29) is to allow public servants to candidly address issues, give advice, and discuss proposals or alternative courses of action without having such discussions exposed to public view.” [ 56 ] Counsel continued that the purpose of

section 29 is to protect the ability of public servants to engage in the policy and decision- making process frankly and openly, thus encouraging open discussion without fear of being wrong or looking foolish if their private discussions are made public. [ 57 ] Counsel pointed out that the Appellant stated in her factum that she understands “if the interest of the Applicant in obtaining the information is a private interest that public interest override will not apply.” Counsel stated the Respondents agreed with this statement.

It is an accurate summation of the law surrounding public interest override as accepted by this Court in Mastropietro . As referenced in paragraph 54 above, the Information and Privacy Commissioner for Ontario has stated that “a public interest does not exist where the interests being advanced are essentially private in nature”. [ 58 ] Counsel submitted that the Appellant is advancing a private interest. The issue underlining her request for information is a private matter involving her Licence to Occupy and cottage at Grand Lake Camp 33.

Counsel suggested there is no public interest in the withheld information. [ 59 ] Counsel commented that in Mastropietro , the application of

section 9 of the Act to

section 30 was also discussed. [ 60 ] In paragraph 52 of Mastropietro , Murphy, J. referred to Criminal Lawyers’ Association , in relation to public interest and solicitor-client privilege, in which the Supreme Court of Canada stated the following in paragraph 54: 54 Given the near-absolute nature of solicitor-client privilege, it is difficult to see how the s. 23 public interest override could ever operate to require disclosure of a protected document.

This is particularly so given that the use of the word “may” would permit and, if relevant, require the head to consider the overwhelming public interest in disclosure. Once again, the public interest override in s. 23 would add little to the decision-making process. [ 61 ] Counsel also noted that in Mastropietro , Murphy, J. referred to Ontario (Ministry of Correctional Services) v. Goodis , 2006 SCC 31 in which the Supreme Court of Canada discussed the disclosure of records subject to a claim of solicitor-client privilege.

The Court stated the following at paragraphs 23 – 25: 23 In sum, I agree with the Ministry that there is no justification for establishing a new or different test for disclosure of records subject to a claim for solicitor-client privilege in an access to information case. 24 I am of the respectful opinion that the Ontario courts were in error in permitting disclosure of all the documents in this case. The appropriate test for any document claimed to be subject to solicitor-client privilege is "absolute necessity". [page43] That test was not applied.

Had it been, disclosure of all the records would not have been ordered. 25 I am mindful that openness of the court's process is a recognized principle. However, as with all general principles, there are exceptions. Records that are subject to a claim of solicitor-client privilege in an access to information case are such an exception. Absent absolute necessity in order to achieve the end sought by the enabling legislation, such records may not be disclosed.

As stated, the evidence disclosed no such absolute necessity in this case. [ 62 ] Counsel reiterated that solicitor-client privilege has been held to be fundamental to our justice system. This privilege is only waived or overridden in the most extreme circumstances. The public interest override will only apply to documents covered by solicitor- client privilege in the rarest cases when it is absolutely necessary.

Overriding this privilege is an exception rather than the rule. [ 63 ] Counsel submitted that based on these decisions from the Supreme Court of Canada, the information in this matter redacted pursuant to

section 30 does not meet the test outlined in

section 9. There are no public safety concerns that might necessitate release of the information. No other evidence has been submitted by the Appellant to prove the release of the information is absolutely necessary.

[64] Counsel pointed out that

section 9 of the Act does not apply to the personal information outlined in

section 40. Onceinformation is determined to fall under the

section 40 exemption, the analysis is concluded. The personal information cannot be releasedto the Appellant. [65] In conclusion, counsel for the Respondents submitted that the Department had appropriately redacted the responsive recordpursuant to sections 29, 30 and 40 of the Act. The Commissioner had agreed with the Department’s redactions in his Report. The publicinterest test in

section 9 of the Act was not met and

section 9 does not apply to the relevant documents. The Appellant had failed to provethere is a public interest in disclosure that outweighs the reasons for the exemptions in sections 29 and 30. Counsel requested that theappeal be dismissed. The Intervenor [66] Counsel indicated the Commissioner decided to intervene in this appeal to set out his position and views with respect to theproper

interpretation and operation of the Act. He pointed out the Commissioner’s submissions would focus primarily on the publicinterest override in

section 9 of the Act and how that provision is to be interpreted. [67] Counsel stressed that the appeal before the Court is a review of the decision of the public body (the Department) and not of theReport of the Commissioner. [68] He agreed with the Respondents’ positions on the burden of proof for both the First Respondent and the Appellant as set out bycounsel for the Respondents and as noted in paragraphs 26 and 27 of these Reasons. [69] Counsel agreed that the standard of review of decisions of public bodies in the access to information context was correctly setout by the Federal Court of Appeal in Canada (Information Commissioner).

These decisions should be reviewed by the Court on thestandard of correctness. [70] The Commissioner was in agreement with the standard of review applicable to

section 9 as set out by the Ontario Court ofAppeal in Ontario (Ministry of Finance), referenced by counsel for the Respondent in her submissions and as noted in paragraph 30 ofthese Reasons. He submitted that these decisions should be reviewed on the standard of reasonableness. [71] Counsel stated that

section 29 of the Act is a discretionary exception to access. If

section 29 is applicable to any of theresponsive records, the public body has the discretion to decide whether or not it will grant access to the Appellant. He pointed out thatthe Commissioner, in his Report, found the Department properly applied section 29(1)(a). [72] With respect to section 29(1)(a), counsel submitted that the Court must give meaning to each of the words “advice, proposals,recommendations, analyses or policy options” in the section.

If the Court determines that the responsive records may be characterized inthis fashion, the Court must then ask whether the responsive records were “developed by or for a public body or minister”. [73] Counsel referred to John Doe v. Ontario (Finance), 2014 SCC 36 in which the Supreme Court of Canada commented on thewords “advice or recommendations” in the Ontario Freedom of Information and Protection of Privacy Act, R.S.O. 1990. Counselsuggested that the Supreme Court of Canada’s

interpretation of the words “advice and recommendations” provide useful guidance to thisCourt in the

interpretation of section 29(1)(a). He noted Rothstein, J. stated the following at paragraphs 44 and 45: 44 In my opinion, Evans J. (as he then was) in Canadian Council of Christian Charities v. Canada (Minister of Finance), (FC), [1999] 4 F.C. 245, persuasively explained the rationale for the exemption for advice given by public servants. Althoughwritten about the equivalent federal exemption, the purpose [page23] and function of the federal and Ontario advice andrecommendations exemptions are the same.

I cannot improve upon the language of Evans J. and his explanation and I adopt them as myown: To permit or to require the disclosure of advice given by officials, either to other officials or to ministers, and the disclosure ofconfidential deliberations within the public service on policy options, would erode government's ability to formulate and to justify itspolicies. It would be an intolerable burden to force ministers and their advisors to disclose to public scrutiny the internal evolution of the policiesultimately adopted.

Disclosure of such material would often reveal that the policy-making process included false starts, blind alleys,wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the re-weighing of therelative importance of the relevant factors as a problem is studied more closely.

In the hands of journalists or political opponents this iscombustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness. [paras. 30-31] 45 Political neutrality, both actual and perceived, is an essential feature of the civil service in Canada (Osborne v. Canada (TreasuryBoard), (SCC), [1991] 2 S.C.R. 69, at p. 86; OPSEU v. Ontario (Attorney General), (SCC), [1987] 2S.C.R. 2, at pp. 44-45).

The advice and recommendations provided by a public servant who knows that his work might one day besubject to public scrutiny is less likely to be full, free and frank, and is more likely to suffer from self-censorship. Similarly, a decisionmaker might hesitate to even request advice or recommendations in writing concerning a controversial matter if he knows the resultinginformation might be disclosed. Requiring that such advice or recommendations be disclosed risks introducing actual or perceivedpartisan considerations into public servants' participation in the decision-making process. [74] With respect to

section 30, counsel referred to Newfoundland and Labrador (Information and Privacy Commissioner) v.

Eastern Regional Integrated Health Authority , 2015 NLTD(G) 183, a decision of Orsborn, J., which counsel suggested provides a useful

summary of the law of solicitor-client privilege in the access to information context and should be considered by this Court. He submitted this Court should adopt the principles identified by Orsborn, J. in conducting its review of the Department’s decision to deny access on the basis of

section 30. The content and context must be considered in the solicitor-client analysis and each document must be reviewed separately. [ 75 ] Counsel also referred to

section 40 of the Act dealing with personal information. He suggested the Court is required to first determine if the information may be characterized as “personal information” as that term is defined in

section 2(

u) of the Act . If it is, the Court must then determine whether or not any of the provisions allowing the release of personal information contained in subsection 40(2) apply. If subsection 40(2) is found not to apply, the other provisions of

section 40 must be considered. [ 76 ] With respect to the issue of how the Court should interpret

section 9 of the Act as it relates to sections 29 and 30, counsel noted the Commissioner had concluded in his Report that the public interest override was not applicable to the responsive records. Counsel summarized that as follows: a. The public interest override only applies to the specific exceptions set out in subsection 9(2); b. Both sections 29 and 30 are included; c. It does not apply to a decision made by a public body to deny access on the basis of subsection 40(1); and d.

A public interest does not exist where the interests being advanced are essentially private in nature. [ 77 ] Counsel referred to the decision of Murphy, J. in Mastropietro . He noted Murphy, J. had quoted extensively from Ontario (Human Rights Commission) (Re) which was also referenced by counsel for the Respondents and is set out in paragraph 54 of these Reasons. Counsel pointed out the Ontario legislation used the word “compelling” before the words “public interest” but the word “compelling” is not used in the Act in this Province. He suggested the distinction was significant.

In this Province, there is no requirement to clearly demonstrate that a public interest is “compelling”. It must only be clearly demonstrated that the public interest in disclosure outweighs the reason for the exception. He suggested access to information applicants should not be held to a higher threshold in this jurisdiction. [ 78 ] Counsel reiterated the reason for the

section 29 exception as outlined in John Doe as is set out in paragraph 73 of these Reasons. [ 79 ] He also submitted the Appellant must demonstrate that the release of the requested information clearly outweighs the reason for the

section 30 exception. To do so, the Appellant must demonstrate that it is absolutely necessary for the record to be released. Counsel suggested that given the nature of solicitor-client privilege, there is a high onus on the Appellant. analysis [ 80 ] The Appellant filed an appeal asking this Court to review a decision of the Minister refusing to disclose records she requested and to issue an Order for the disclosure of these records. [ 81 ] The Minister argues that he is entitled to withhold these records in accordance with sections 29, 30 and 40 of the Act and, therefore, the appeal should be dismissed.

The Minister notes that the Commissioner, in his Report, agreed that the records were appropriately withheld. [ 82 ] The Commissioner acknowledges that he recommended that the Minister continue to withhold the information the Department had severed based on the exceptions in sections 29, 30 and 40 of the Act . In his submissions, counsel for the Commissioner pointed out the Commissioner’s

interpretation of the sections in question as well as

section 9. Counsel urged this Court to consider the Commissioner’s views in the assessment of this matter. [ 83 ] The Appellant also referred to

section 9 of the Act which has been commonly called the public interest override and the effect the

section has on the exceptions in sections 29 and 30. [ 84 ] A substantial package of 708 pages of records was provided to the Court for review. I have carefully reviewed these records. [ 85 ] In her access to information request, the Appellant stated her issue was “Re my LTO #10xxx3 located at Grand Lake Camp 33.” She was “requesting all correspondence, internal memoranda, notes, reports and other documents that transpired internally in attempt to resolve my issue.” [ 86 ] The Department provided the Appellant with a large number of records.

It withheld some information because it was non- responsive to the Appellant’s request. It also severed some records based on the exceptions in sections 29, 30 and 40 of the Act . [ 87 ] In my review of the records, I found much of them to be repetitive. That seemingly occurs because one email may have been sent to multiple persons. Each person’s emails have been provided in the package.

Those subsequent emails build on the initial email with various officials offering comments on the initial email or adding comments on those made by other government officials. [ 88 ] With respect to the records which the Department withheld pursuant to

section 29, a number related to Decision Notes prepared by officials. These Decision Notes outline the issue, the background and current status, the analysis, and the recommendation. A number of other records related to emails generated by officials of the Department. These clearly include “advice and recommendations” submitted by officials. In my view, the records were clearly developed by or for a public body (the Department) or the Minister. I, therefore, find that these records were properly withheld by the Department in accordance with

section 29.

[ 89 ]

Section 30 of the Act deals with solicitor-client privilege as well as the disclosure of legal opinions. [ 90 ] A lawyer from the Department of Justice and Public Safety provided a legal opinion through an email to one official in the Department which was also copied to two other officials. I have reviewed the legal opinion. I am satisfied that the three requirements that must be present in order for a solicitor-client privilege to apply have been met. The email was a written communication between the solicitor and an official of the client Department. The solicitor was clearly giving legal advice.

The lawyer and the official in the Department intended that the advice remain confidential. [ 91 ] The email containing the legal advice was then included in an email distributed by one official of the Department to others in the Department. That action equates to the disclosure of the legal opinion provided to a public body by a law officer of the Crown – the solicitor in the Department of Justice and Public Safety. [ 92 ] I find that the email was solicitor-client privileged and that the legal opinion of the solicitor was disclosed within the Department by an official of the Department.

The information was appropriately withheld by the Department because it comes within the exceptions to disclosure set out in sections 30(1)(

a) and (b). [ 93 ]

Section 40 of the Act relates to the disclosure of personal information. The term ‘personal information” as defined in paragraph 2(

u) of the Act is “recorded information about an identifiable individual”. The definition then sets out in detail various forms of personal information. [ 94 ] I reviewed the references in the records which referred to persons other than the Appellant. These are examples of personal information.

Section 40 is a mandatory provision. The Department is not permitted to release this information. I find that these records were correctly withheld in accordance with

section 40. [ 95 ] As noted earlier, the Appellant referred to

section 9 of the Act submitting that the public interest in disclosure in that

section outweighs the exceptions in sections 29, 30 and 40. I note that

section 40 is not an exception set out in section 9(2). [ 96 ] The onus of clearly demonstrating that the public interest in disclosure outweighs the reasons for the non-disclosure rests with the Appellant, the person seeking access to the records. That person is certainly entitled to present evidence on an appeal on the issue of the public interest in disclosure. The Department argued during the formal investigation by the Commissioner that

section 9 did not apply to this matter. The ultimate result of the investigation by the Commissioner was the finding that he agreed with the position of the Department on the application of

section 9. On the hearing of this appeal, counsel argued that the Appellant did not present any evidence in support of her position on this issue. [ 97 ] I have reviewed the Appellant’s factum as well as my notes from her oral argument on this issue. I find that the Appellant has not provided evidence clearly demonstrating that the public interest in disclosure of the records withheld by the Department in accordance with sections 29 and 30 of the Act outweighs the reasons for non-disclosure. disposition [ 98 ] In the result, I order that: a. The appeal is dismissed; b. In the circumstances of this matter, there is no Order as to costs. _____________________________ Brian F. Furey Justice