Freedom of Information and Protection of Privacy – Two Recent Decisions

Two recent decisions from the Office of the Information & Privacy Commissioner (“OIPC”) are of interest to local government. Once concerns a request for access to information that was considered at a closed council meeting, and was subject to solicitor client privilege. The second decision concerns a request for information about a contract awarded by a local government.

Withholding records relating to legal advice considered during a closed meeting

Order F13-10, District of North Saanich is another in a long line of decisions that discuss the prerequisites for a local government to withhold access to records that relate to matters discussed during a closed meeting.  The decision also addresses solicitor-client privilege over records and the circumstances under which a council member or employee may waive that privilege on behalf of the local government.

At issue in the North Saanich decision were records relating to a closed meeting during which Council reviewed the appointment of an individual to the Peninsula Recreation Commission.  During the meeting, Council discussed matters that were subject to solicitor client privilege.  The District claimed it could withhold the records both because they would reveal the substance of a closed Council meeting, and because solicitor client privilege applied.

The adjudicator noted that three conditions must be met in order for a local government to withhold records on the grounds that disclosure would reveal the substance of a closed meeting:

“1.       there must be statutory authority to meet in the absence of the public;

2.         a meeting must actually be held in the absence of the public; and

3.         the information would, if disclosed, reveal the substance of the deliberations of the meeting.”

This test has been applied in several other decisions of the OIPC.  The adjudicator noted that section 92 of the Community Charter requires that before holding a closed meeting, Council must adopted a resolution stating the reason for closing the meeting. There was no evidence in this case that Council actually adopted the necessary resolution before going in camera.  As a result, the meeting was not properly closed and the District could not withhold the records on this basis.

While the adjudicator found that the “closed meeting” exemption did not apply, he did find that the exemption for records subject to solicitor-client privilege provided a basis upon which the District could withhold the records.  In coming to that conclusion, he rejected the argument that the District had waived privilege because one of its council members informed a resident that the District had received legal advice regarding a potential conflict relating to the Commission.

The adjudicator found that the statement to the resident, which merely advised the resident of the existence of a legal opinion, did not constitute a waiver of privilege of the contents of the entire opinion.  The adjudicator also addressed whether a single council member can waive privilege on behalf of a municipality.  He stated that whether a person has authority to waive privilege must be determined on the facts of each case.  The determination is to be based on what the District did and said through its authorized agents, and what responsibility has been delegated to municipal officials on a day-to-day basis.  The adjudicator reviewed the District’s council procedure bylaw and found that the power to waive privilege did not follow from the authority granted to individual council members under that bylaw.

The meaning of the adjudicator’s reference to “delegation on a day-to day-basis” is a bit unclear. However, section 154 of the Community Charter states that a council may by bylaw delegate its powers, duties and functions to a council member, officer or employee or other body established by council.  Arguably, section 154 would require a council to adopt a bylaw expressly delegating the authority to waive solicitor client privilege to an individual council member.

Withholding bid and contract information

The second recent decision of interest to local government is Order F13-06, District of Hope.  This case involved a request for a copy of the successful proposal and signed contract for garbage, recycling and yard waste services.  The District withheld the pricing information in the proposal and contract under section 21(1) of the Freedom of Information and Protection of Privacy Act.  In part, this section states that the head of a public body must refuse to disclose information that would reveal the commercial information of a third party that was supplied in confidence, abnd which could be expected to harm the third party’s competitive position or result in undue financial loss.

As in many similar decisions, the determination regarding whether the District could withhold the information turned the interpretation of the words “supplied in confidence”.   The adjudicator referred to previous decisions of the OIPC to the effect that commercial information is not “supplied” if it is the product of negotiation.  As the price agreed to in a contract is almost always the product of negotiation, the OIPC will almost always order a local government to disclose the contract, including the negotiated price.  The only exceptions recognized are for unchangeable information such as overhead or labour costs under a collective agreement.  As the pricing information in the contract in this case did not expressly involve such matters, the adjudicator ordered the pricing information in the contract to be disclosed.

Regarding the pricing information in the tendering documents, as this information had not been the subject of negotiation, it met the “supplied” requirement in section 21.  However, the adjudicator was not satisfied that disclosing the pricing information in the bid would harm the successful bidder’s competitive position or subject it to undue financial loss.

This case reinforces the need for local governments to state clearly in tendering documents that while proposals will be held in confidence, they may be subject to a request for information under the Freedom of Information and Protection of Privacy Act.   Additionally, when negotiating a contract, requests that a confidentiality clause be included should be considered with great care, as the OIPC has repeatedly upheld the public interest in having access to the details of negotiated contracts.