Solicitor-Client Privilege/Litigation Privilege (updated)
On May 16, 2018, the Saskatchewan Court of Appeal released its decision in University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 . The appeal addressed the statutory authority of the Information and Privacy Commissioner (IPC) under The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) to require the production of records over which a local authority asserts solicitor-client privilege in order to verify the claim. As a result, the IPC has developed procedures where solicitor-client privilege or litigation privilege is claimed.
Below is a succinct summary of the law related to solicitor-client privilege and litigation privilege.
Question 1: Scope of Solicitor-client privilege
- Solicitor-client privilege covers all communications between a lawyer and client directly related to the seeking, formulating, or giving of legal advice, along with communications within the “continuum” in which the solicitor tenders the advice. This includes records of such communications. These communications must, however, be in furtherance of legal advice and must occur within the framework of the relationship between a client and a lawyer acting in his or her capacity as a lawyer.
- Solicitor-client privilege does not necessarily extend to all records in relation to a matter. For example, owing to the nature of the work of in-house government counsel (e., having both legal and non-legal responsibilities), the government institution will need to review, and the IPC should verify, that solicitor-client privilege is properly asserted in relation to each requested record “depending on the nature of the relationship, the subject matter of the advice and the circumstances in which it was sought and rendered”. Furthermore, solicitor-client privilege does not necessarily extend to the entirety of an individual record where portions of the record do not constitute or relate to legal advice (e.g., header and footer information and confidentiality notices in email communications).
- Litigation privilege attaches to documents created for the dominant purpose of pending or apprehended litigation. Conceptually distinct from solicitor-client privilege, litigation privilege differs in at least three respects: 1) it arises even in the absence of a solicitor-client relationship; 2) it applies only in the context of litigation; and 3) unlike solicitor-client privilege, it is time-limited and comes to an end upon termination of the litigation or any closely related proceedings.
- A party asserting solicitor-client privilege bears an evidentiary burden of establishing a prima faciecase for privilege. Courts have held that where a party has tendered evidence in support of a claim of privilege (e.g., an affidavit of documents and schedule), and in the absence of evidence to the contrary, the privilege claim should be sustained.
Question 2: Scope of the Information and Privacy Commissioner’s authority to verify claims of solicitor-client privilege under FOIP/LAFOIP?
- While the courts have said that solicitor-client privilege must remain as close to absolute as possible, it is not absolute. It can be limited or abrogated by statute. A statute purporting to limit or abrogate the privilege must be interpreted “restrictively”.
- Following the U of Scase and pursuant to “the clear and unambiguous” language in FOIP and LA FOIP, the IPC possesses the express statutory authority to request full disclosure of disputed records to verify questionable claims but only to the extent that it is “absolutely necessary.” This threshold is very high. The IPC can likely require full production of a record only in narrow circumstances where the IPC has a reasonable basis in fact to believe that the government institution’s or local authorities’ claim of privilege is improperly or falsely asserted.
- Short of requiring full production to verify claims of privilege, the “absolutely necessary” threshold requires the IPC to take a number of prior verification steps in incremental fashion before resorting to this last measure.
- For example, the government institution or local authority could be required to support its privilege claim by:
- Providing a sworn affidavit of documents along with a schedule of records containing requested information to the level of detail that accords with the usual or best practices expected of an affidavit of documents in the civil litigation context.
- If the IPC is still unable to reasonably verify a claim of solicitor-client privilege after the provision of an affidavit of documents and schedule of records, containing the requested information, the IPC could then question the government institution on its affidavit or schedule.
- If the IPC remains unsatisfied at this stage, the U of Scase gives the IPC the power to compel production of the full record in order to verify the claim on the basis of the record itself.
- Even under this incremental approach, the IPC must have a reasonable basis for questioning the asserted claim in the circumstances before moving to the next stage.
As a result, whenever a public body claims solicitor-client privilege or litigation privilege, step one will be to request the public body to provide a copy of the original records, a redacted copy of the records provided to the applicant. Alternatively, the IPC will require an Affidavit of Records as set out in Form B of The Rules of Procedure and the redacted record provided to the applicant. That Affidavit contains a Schedule, and the public body is required to list the documents over which privilege is claimed and indicate whether they are claiming solicitor-client privilege or litigation privilege. The government institution or local authority is expected to complete the schedule with all details. Failure to do so may cause the IPC to move to the next step.
The Rules of Procedure have been updated to reflect the current practice in this area. Part 9 has been amended accordingly and the Affidavit of Records has been provided in Form B. A representation or submission is optional and at the choice of the public body. The Schedule has two columns which requires the public body to indicate whether they are claiming solicitor-client privilege or litigation privilege.
I hope this Blog and The Rules of Procedure clarify this issue and make the process somewhat simpler. I must emphasize, it makes our work much easier if the client provides my office with the original records over which they are claiming solicitor-client privilege or litigation privilege and the redacted record which was sent to the applicant. My office never releases these documents to the applicant or to anyone else and they are usual destroyed six months after the file is closed.