Solicitor-Client Privilege/Litigation Privilege
On May 16, 2018, the Saskatchewan Court of Appeal released its decision in University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner) (U of S). 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 been working on its procedures where solicitor-client privilege or litigation privilege is claimed. It has worked with a number of solicitors in the province on actual files. In those cases, a prima facie case for solicitor-client privilege was made and my report was issued.
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 (i.e., having both legal and non-legal responsibilities), the government institution will need to review, and the Privacy Commissioner 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.
- 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 proceedings or any closely-related proceedings.
- A party asserting solicitor-client privilege bears an evidentiary burden of establishing a prima facie case 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 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 S case 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 “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 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 could be required to support its privilege claim by:
- Providing a sworn affidavit of documents 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, containing the requested information, the IPC could then cross-examine the government institution on its affidavit.
- If the IPC remains unsatisfied at this stage, the U of S case likely 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 to the extent absolutely necessary.
- 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 records, a redacted copy of the records or an Affidavit of Records as set out in Form B of The Rules of Procedure. That Affidavit contains a Schedule and the public body is asked to list the documents over which privilege is claimed and indicate whether they are claiming solicitor-client privilege or litigation privilege.
I have amended The Rules of Procedure 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 added two columns which will allow the public body to either indicate whether they are claiming solicitor-client privilege or litigation privilege. A certificate of a lawyer is no longer required.
I hope this Blog and The Rules of Procedure clarify this issue and make the process somewhat simpler.