The following article contains a collection of questions asked during the webinar, "Freedom of Information Requests and its Impact on Litigation," hosted by Samantha Boyce, Legal Counsel for the MIABC on May 17, 2016.
To view a recording of this webinar, please click here.
This publication was prepared by Denise McCabe, with the assistance of Kaitlyn Cumming, Articled Student, both of Fulton & Company LLP, at the request of the Municipal Insurance Association of British Columbia (MIABC) for its insureds’ general information. The contents of this publication should not be relied upon as legal advice or opinion of any kind. No lawyer-client or other relationship is created by using the contents of this publication, nor should this publication be seen as a substitute for obtaining competent legal counsel or advice. While Fulton & Company LLP and the MIABC have made reasonable efforts to ensure that the contents of this publication are accurate, they do not warrant or guarantee the accuracy, currency or completeness of the contents of this publication. Fulton & Company LLP and the MIABC expressly disclaim all representations, warranties, conditions and endorsements, and in no event shall either of them, or their respective partners, directors, agents, consultants or employees be liable for any loss, damages or costs whatsoever, arising from, or in connection to, any use of any of the contents of this publication.
Denise McCabe received her Bachelor of Arts degree from the University of Victoria in 1993, and her Bachelor of Laws degree from Dalhousie University in 1996. She practised in a large Vancouver firm before joining Fulton & Company LLP in 2000, first as an associate, and later as a partner and chair of the firm’s Local Government Practice Group.
Frequently Asked Questions
1. To whom does the FIPPA apply?
FIPPA applies only to provincial “public bodies”, which includes BC ministries, agencies and commissions, local governments, provincial crown corporations, school boards, hospitals and the like. The term “public body” is defined in Schedule 1 of the Act, and Schedules 2 and 3 provide an exhaustive list all entities to which FIPPA applies.
2. Can a local government circulate personal information amongst its employees?
Pursuant to section 33.2(c) of FIPPA, which applies to disclosure of information inside Canada only, a local government may only disclose personal information to employees and service providers where necessary. This section codifies the need-to-know principle, which has been described by the Office of the Information and Privacy Commissioner as the requirement that only the minimum amount of personal information necessary for the delivery of services be disclosed.
Pursuant to the need-to-know principle, access must be restricted to authorized individuals whose duties require it. Individuals are not entitled to access personal information merely because of their status, rank or office. Likewise, access will not be permitted simply because the information would be “helpful” or “of interest” to the individual.
This restriction may be implemented in various ways, including: the physical segregation of information, controlling access to certain records, installation of access controls on information systems and regular employee training.
3. Can a local government disclose the details of a FIPPA request to its own legal counsel?
An applicant’s name and the details of his or her request for access to information are considered “personal information” for the purposes of FIPPA. Accordingly, local governments may only disclose that information strictly in compliance with the provisions of the Act.
Section 33.1(g), which applies to disclosure both inside and outside of Canada, authorizes a local government to disclose personal information to its legal counsel for the purpose of preparing or obtaining legal advice for use in civil proceedings involving that local government. So long as the requirements of section 33.1(g) are met, the local government head may alert legal counsel about requests which signal pending lawsuits.
Where litigation is already underway (or reasonably contemplated), the disclosure of information pursuant to a FIPPA request should be coordinated with the local government’s litigation strategy in order to ensure that privileged documents are not inadvertently disclosed.
4. What happens when a local government receives both a request for access to information under FIPPA and a demand for production of documents in civil proceedings?
In most cases, the local government will be required to comply with both requests for disclosure. An individual’s right to access information under FIPPA is coextensive with his or her right to compel a local government to produce documents in accordance with the applicable court rules.
As noted above, when litigation is already ongoing or reasonably contemplated, the disclosure of records pursuant to a FIPPA request should be coordinated with the local government’s litigation strategy in order to ensure that privileged documents are not inadvertently disclosed. When in doubt, local governments should seek advice from their legal counsel.
5. Can a local government refuse to disclose records in the course of litigation proceedings, if such disclosure would be contrary to the privacy obligations imposed by FIPPA?
No. Section 3(2) of FIPPA expressly confirms that the Act does not limit information available by law to a party in legal proceedings. As a result, a local government cannot use its privacy obligations under FIPPA to refuse to comply with disclosure obligations in legal proceedings.
6. Can a local government disclose an applicant’s name and details to the MIABC?
As noted above, an applicant’s name and the details of his or her request for access to information are considered “personal information” for the purposes of FIPPA. Accordingly, local governments may only disclose that information strictly in compliance with the provisions of the Act.
In limited circumstances, a local government is permitted to disclose to the MIABC an applicant’s name and the details of his or her request for access to information. Section 33.2(c) stipulates that personal information may be disclosed to an employee, if that information is necessary for the performance of the employee’s duties. For the purposes of FIPPA, the definition of “employee” includes a “service provider”, which in turn is defined as a “person retained under a contract to perform services for a public body.”
In the context of the MIABC, its duty as an insurer includes the investigation, assessment, defence and negotiation of claims. This requires a full and frank understanding of the facts, which might include personal information held by the local government.
7. How is the privilege exception in section 14 interpreted and applied?
Section 14 of the Act is a discretionary exception to the right of access to information. It permits local governments to refuse to disclose information that is subject to solicitor-client privilege. The law is well established that s.14 encompasses both types of solicitor-client privilege found at common law: “legal advice privilege” and “litigation privilege”.
“Legal advice privilege” protects from disclosure various types of confidential communications between a local government and its legal counsel, so long as the following conditions are met:
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 its agent) and a legal advisor; and
4. the communication must be directly related to the seeking, formulating or giving of legal advice.
Examples: letter from legal counsel to a CAO advising whether council has the statutory authority to pass a particular resolution; email communications between a city employee and the city’s lawyer regarding the preparation of a draft council policy; portions of in camera minutes which refer to advice given by a local government’s legal counsel.
“Litigation privilege” protects from disclosure communications and material produced or brought into existence for the dominant purpose of litigation. Unlike legal advice privilege, litigation privilege applies only in the context of the litigation itself - once the litigation has concluded the privilege ends. Litigation privilege must be established document by document. To invoke the privilege, a local government must establish two facts for each document over which the privilege is claimed:
1. that litigation was ongoing or was reasonably contemplated at the time the document was created; and
2. that the dominant purpose of creating the document was to prepare for that litigation.
Examples: a statement of facts prepared by a city employee for the purpose of drafting pleadings (whether the city is a plaintiff or defendant); communications between a city lawyer and potential trial witnesses.
8. How is the policy advice or recommendations exception in section 13 interpreted and applied?
Section 13 of the Act is a discretionary exception to the right of access to information. It permits local governments to withhold information that would reveal advice or recommendations developed by or for the local government. The provision is intended to allow full and frank discussion of policy issues within the public body, preventing the harm which would occur if the deliberative process were subject to excessive scrutiny.
The head must apply a three part analysis in order to determine whether a record or portions of it may be withheld under s. 13(1):
First, the local government must determine the age of the record. If the record has been in existence for more than 10 years, section 13 does not apply.
Second, the local government must determine whether of the record would reveal advice or recommendations developed by or for the local government body.
Third, the local government must determine whether the record is of a class or type listed in section 13(2). If so, it may not be withheld.
Examples: staff recommendations to counsel regarding the need for a particular bylaw; a briefing note containing recommendations prepared by staff for the Mayor’s meeting with a federal government representative; a draft letter prepared for council’s consideration and approval.
It is important to note that local governments cannot assume that simply labelling a record “advice” or “recommendations” will protect it from disclosure under section 13. The local government bears the onus of establishing that the information contained in the record qualifies for protection under section 13.
9. Specific types of local government information and records
a. When does a comfort letter request become a FIPPA request?
It is not uncommon for local governments to receive requests for “comfort letters” from lawyers acting on behalf of property purchasers. These requests typically involve property information and zoning confirmation which may (and in some cases, must) be routinely released by local governments without recourse to a formal FIPPA application.
However, it is increasingly common for purchasers’ lawyers to request information, confirmation or even opinions that far exceed the scope of what local governments are legally obliged to provide. A determination of whether the record can be routinely released, whether it can be released only through a formal FIPPA process, or whether it cannot (or should not) be released at all, depends entirely on the nature and type of the information being requested.
Some examples of information and records pertaining to a specific property that can be routinely released without a FIPPA request are as follows:
- bylaws pertaining to the property (for instance, a zoning bylaw), as well as proposed bylaws that have been given first reading;
- minutes of open council meetings pertaining to the property;
- issued building permits;
- issued business licences; and
- descriptions of other permits, licences and variances relating to the property, together with the name of the applicant.
Conversely, the following are examples of information or records that should only be disclosed through a formal FIPPA process:
- any record that contains the personal information of the current owner or any other third party;
- prior bylaw enforcement complaints related to the specific property; and
- complaint driven inspections of the property.
A few final comments regarding comfort letter requests:
- Many of the questions are essentially attempts to obtain from the local government a legal opinion about the effect of its bylaws on the particular property (e.g. whether the current owner’s business operations fully comply with the city’s bylaws and regulations). This, of course, is the responsibility of the purchaser’s lawyer, having reviewed the applicable public documents. We strongly recommend that local governments refrain from providing answers to such questions.
- Misstatements made by a local government official in a comfort letter can expose the local government to significant legal risk and potential liability. Local governments have been found liable for officials’ misstatements concerning such issues as zoning, building, business and other regulations on which private individuals relied when purchasing certain property or commencing businesses operations.
- It may be useful for local governments to work with their legal counsel to develop a template for its comfort letters. Any requests for information or records beyond those which are listed in the template can be dealt with by means of a FIPPA application or with the advice of legal counsel.
- Finally, when in doubt, always seek legal advice prior to responding to a request for a comfort letter, regardless of any deadline imposed by the purchaser’s lawyer.
b. Is Property Tax Information Publically Available?
Section 33.1(1)(c.1) of the Act permits a public body to disclose personal information for the purpose of complying with an enactment other than FIPPA. The Community Charter stipulates that certain types of tax information must be available to the public:
Parcel Tax Rolls: s. 203(3) of the Community Charter provides that, once it has been prepared by the collector, the parcel tax roll must be available for public inspection.
Amounts of Unpaid Taxes: s. 249 of the Community Charter requires local governments to disclose the amount of unpaid taxes charged against a specified property, upon request.
Tax Sale List: s. 249 of the Community Charter and s. 647 of the Local Government Act confirm that tax sales are public and must be advertised. Upon request, local governments are required to confirm whether the property has been sold for taxes, and if so, the time if any remaining for redemption and the amount required to redeem it.
 OIPC Investigation Report F10-02.
 College of Physicians of B.C. v. BC (Information and Privacy Commissioner), 2002 BCCA 665.
 See for example: Order 01-53, Order F13-10 and Order 15-08.
 See Gichuru v. British Columbia (Information and Privacy Commissioner) 2014 BCCA 259 at para 32.
 See Order F15-56.