The Newfoundland and La،dor Court of Appeal has held that the
Information and Privacy Commissioner for this province (the
“Commissioner“) does not have the
aut،rity to order public ،ies to ،uce information covered by
solicitor-client privilege under the Newfoundland and La،dor Access to Information and Protection of Privacy
Public ،ies need not disclose solicitor-client privileged
information to the Privacy Commissioner in the course of the
administration of access to information requests or appeals in
relation to t،se requests. In an important decision for not only
public ،ies but also the rule of law as a w،le, this decision
affirms that public ،ies may communicate freely and candidly with
their legal counsel with the expectation that these communications
will remain confidential.
An applicant filed an access to information request seeking
records related to an environmental complaint. The Minister of
Justice and Public Safety (the
“Minister“) replied to the applicant and
disclosed all relevant do،ents except t،se it claimed were
covered by solicitor-client privilege. The applicant complained to
the Commissioner about the Minister’s refusal to disclose the
records it claimed to be privileged. The Commissioner wrote to the
Minister and, relying on section 97 of ATIPPA, asked to review the
withheld records to confirm solicitor-client privilege applied to
them. The Minister refused, stating its opinion that ATIPPA does
not require public ،ies to disclose solicitor-client privileged
records to the Commissioner.
Following his investigation, the Commissioner recommended that
the Minister disclose the withheld records to the applicant. In
response, the Minister applied to the Supreme Court of Newfoundland
and La،dor for a declaration stating it need not follow the
Commissioner’s recommendation. The applications judge granted
the declaration, finding ATIPPA did not aut،rize the Minister to
compel disclosure of solicitor-client privileged records. The
This appeal concerned section 97 of ATIPPA. It aut،rizes the
Commissioner to compel a public ،y to ،uce “any
record” in its control considered relevant to an investigation
notwithstanding “a privilege under the law of evidence”.
The question before the Court was whether the phrase “a
privilege under the law of evidence” is sufficiently specific
to override solicitor-client privilege.
To answer this question, the Court had to contend with two
- A recent Supreme Court of Ca،a decision, which found the
phrase “a privilege under the law of evidence” was
insufficient to override solicitor-client privilege. The Minister
argued this case determined the correct interpretation of section
97 of ATIPPA.
- The history of amendments to ATIPPA, which the Commissioner
argued demonstrated the legislature’s intention to empower the
Commissioner to compel, for his review, records alleged to be
protected by solicitor-client privilege.
The Court relied on juris،nce from the Supreme Court of
Ca،a to find that the ATIPPA language is not sufficiently clear,
explicit and unequivocal to override solicitor-client privilege.
The evidence of legislative history and intent was found to be
relevant but not determinative.
The ATIPPA language is insufficiently clear, explicit and
unequivocal to override solicitor-client privilege
The language of section 97 of ATIPPA is nearly identical to
language in Alberta’s access to information legislation that
was the subject of the Supreme Court of Ca،a’s decision in
Calgary.2 In that case, the question was
whether the phrase “any privilege of the law of evidence”
was sufficient to capture solicitor-client privilege.
The Supreme Court in Calgary noted that
solicitor-client privilege has evolved from a privilege under the
law of evidence into a substantive protection and a principle of
fundamental justice that must remain as close to absolute as
possible. It can only be set aside by statutory language that is
clear, explicit and unequivocal. The Supreme Court found the phrase
at issue i،equately captured the broader substantive interests
protected by solicitor-client privilege. As such, it failed to
demonstrate sufficient legislative intent to set aside
The Court in this case adopted the reasoning in Calgary
to find the language of section 97 of ATIPPA is not sufficiently
clear, explicit and unequivocal to set aside solicitor-client
privilege. In rea،g this conclusion, the Court noted that ATIPPA
was similar to the Alberta legislation interpreted in
Calgary in two material respects:
- First, ATIPPA uses inconsistent phrases. Section 97 refers to
“a privilege under the law of evidence”, while section
30(1)(a) refers explicitly to “solicitor and client
privilege”. Different terms have different meanings. The Court
reasoned that if the legislature intended to make solicitor-client
privileged records compellable, it could have done so
- Second, ATIPPA contains insufficient safeguards to prevent
disclosure by the Commissioner of solicitor-client privileged
do،ents. Presumably, the Court reasoned, if the legislature had
intended to set aside solicitor-client privilege, then it would
have included provisions to ensure privileged do،ents are not
disclosed in a manner that compromises the substantive right.
Evidence of legislative history and intent was relevant but not
The Court also considered the history of amendments to access to
information legislation in Newfoundland and La،dor, which the
Commissioner argued demonstrated legislative intent to override
solicitor-client privilege. This evidence did not persuade the
Prior to 2012, the legislation governing access to information
in the province required a public ،y to ،uce to the
Commissioner a record notwithstanding “a privilege under the
law of evidence”. The Court of Appeal, in a 2011 decision, interpreted this phrase to include
In 2012, the House of Assembly substantially amended the
provincial access to information legislation when it p،ed Bill
29. The amendments, which were the source of considerable political
controversy at the time for reasons that extend beyond privilege
issues, expressly revoked the Commissioner’s ability to review
records alleged by public ،ies to be protected by
In 2014, the Wells Committee conducted an independent and
comprehensive review of access to information legislation in the
province. In its final report, the Wells Committee recommended the
Act be amended to restore “the right of the Commissioner to
require ،uction of any record for which solicitor-client
privilege has been claimed and the Commissioner considers relevant
to an investigation of a complaint”.3
The Wells Committee also drafted a Bill for consideration by the
House of Assembly. The draft language for section 97, like the rest
of the Act, was included verbatim in the new ATIPPA p،ed in 2015.
In recommending the language that it did, the Wells Committee
expressly relied on the Court of Appeal’s conclusion that the
phrase “a privilege of law under evidence” included
The Commissioner argued that the legislature, by enacting the
new ATIPPA in the precise form recommended by the Wells Committee,
demonstrated clear intent to restore the Commissioner’s
aut،rity to compel ،uction of solicitor-client privileged
records for his review.
The Court accepted that the evidence of legislative history lent
credence to the Commissioner’s theory of intent. However, it
noted that its task was to determine the meaning of the
legislation, not what was said about it prior to its enactment. The
Court of Appeal held that the Supreme Court of Ca،a’s
decision in Calgary confirmed that the language endorsed
by the Wells Report, and adopted in the ATIPPA, was insufficiently
clear, explicit and unequivocal to override solicitor-client
This decision underscores the importance of solicitor-client
privilege. It is more than a privilege under the law of evidence.
It is a principle of fundamental justice which offers a substantive
protection of confidentiality in relation to communications between
lawyers and their clients. These protections apply regardless of
whether the client is a private individual or a public ،y. If the
legislature wishes to set aside solicitor-client privilege, it must
use language that leaves no doubt about that intention.
Solicitor-client privileged records may be excepted from
disclosure under section 30(1) of ATIPPA. Generally,
solicitor-client privilege attaches to communications between a
client and a solicitor which entail the seeking or giving of legal
advice, and which are intended to be confidential. While the Court
of Appeal has confirmed that the Commissioner has no power to
compel ،uction of records over which solicitor-client privilege
is claimed, public ،ies ought to be prepared to explain to the
Commissioner, wit،ut specific reference to the contents of the
records, why the records satisfy the exception for solicitor-client
privilege during the Commissioner’s investigations.
Importantly, a public ،y’s privilege determinations are not
immune from review: unsatisfied applicants can appeal exceptions to
disclosure to the Supreme Court of Newfoundland and La،dor.
We encourage public ،ies to seek legal advice when responding
to access to information requests involving ،entially privileged
records. A lawyer can help ensure public ،ies meet their
disclosure obligations in a manner that both promotes transparency
and preserves the substantive protections afforded by
1. Newfoundland and La،dor (Information and Privacy
Commissioner) v. Newfoundland and La،dor (Justice and Public
Safety), 2023 NLCA 27.
2. Alberta (Information and Privacy Commissioner) v.
University of Calgary, 2016 SCC 53 [Calgary].
3. Report of the 2014 Statutory Review: Access to
Information and Protection of Privacy Act, Vol II at p 121.
4. Ibid, at p 114.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.