Lawyers Bills: Are They a “No Brainer”?
We have now had a few reports that have dealt with the application of solicitor-client privilege exemptions (sections 22 of FOIP and 21 of LA FOIP) to lawyers bills. In these cases, the Commissioner relied on a Supreme Court of Canada decision Maranda v. Richer,  3 S.C.R. 193, 2003 SCC67 to find that lawyers bills are subject to solicitor-client privilege. The Supreme Court asserted that there is a presumption of privilege for lawyers’ bills of account as a whole in order to ensure that solicitor-client privilege is honoured. (See IPC Review Reports 052-2013 and 280-2016 & 281-2016)
When I refer to “lawyers bills”, I mean an invoice or statement of account that is communicated from a lawyer or law firm to a public body after providing legal services. Some lawyers bills can be quite detailed and list the dates of individual phone calls, tasks performed and the subject matter.
It is possible for an Applicant to rebut that solicitor-client privilege applies. To do so, it must provide persuasive arguments that the disclosure of information will not result in the Applicant learning of information that is subject to solicitor-client privilege. Order F15-16 from the Information and Privacy Commissioner of British Columbia lays out a test for determining whether the presumption of privilege has been rebutted. Applicants, though, are at a disadvantage when having to make arguments for why privilege does not exist to information when they cannot see or examine the information.
So it does seem like a no brainer that solicitor-client exemptions would apply to this type of information, right?
Well… I think every issue in the FOIP World is unique!
A public body still has to be accountable for the public money it spends on legal services. In Review Report 003-2017, the Commissioner found that the details of payment for legal services in a public body’s accounts payable invoice history report was not subject to solicitor-client privilege. In other words, some of the information from the lawyer’s bill was entered into the public body’s accounting system, which was the subject of the review. The Commissioner reasoned that some of the data items in this record, such as purchase order number, voucher number and bank information, was information that the public body assigned to the lawyer’s bill once it was received – the exemption did not apply to these items. Further, the name of the law firm did not qualify as it was confirmed through public documents that a particular firm had been engaged by the public body. The firm’s invoice number and the due date did not reveal the nature of the advice that was sought. Finally, he also did not find that there was a reasonable possibility that disclosure of the amount of the fees paid would reveal any communication protected by privilege.
Once again, I am reminded that our office must review every record, and the circumstances surrounding it, on a case by case basis.