ALBERTA  
OFFICE OF THE INFORMATION AND PRIVACY  
COMMISSIONER  
ORDER F2017-61  
July 18, 2017  
ALBERTA JUSTICE AND SOLICITOR GENERAL  
Case File Numbers F6525/F6761  
Office URL: www.oipc.ab.ca  
Summary: The Applicants made separate access requests under the Freedom of Information and  
Protection of Privacy Act [FOIP] to Alberta Justice and Solicitor General [Public Body]. They both  
requested all records containing information relating to the requests for proposals and agreements with  
respect to awarding a contract for external legal services related to the recovery of health care costs  
associated with tobacco under the Crown’s Right of Recovery Act.  
The Inquiry began with the External Adjudicator issuing a Notice of Inquiry on June 6, 2014. Shortly after  
the Notice was issued and the Public Body had submitted its Initial Submission [2014], one of the  
Applicants raised a Preliminary Evidentiary Objection [PEO] to an opinion letter submitted by the Public  
Body. After the PEO was raised and the parties had the opportunity to provide submissions, the External  
Adjudicator released Decision F2014-D-03/Order F2014-50 [Decision/Order] on December 31, 2014,  
which found the opinion letter proffered by the Public Body to be inadmissible and ordered the Public  
Body to provide the records to the External Adjudicator, as none of the Records at Issue had been  
provided to the Commissioner’s Office. The Public Body filed for Judicial Review of the Decision/Order.  
On June 10, 2016, unexpectedly, counsel for the Public Body provided a small package of documents  
(some of which were a small sample of the Records at Issue) to the Commissioner’s Office, which  
correspondence was re-routed to the External Adjudicator. The provision of the documents complied in  
part with the Decision/Order. The documents were provided as a result of counsel receiving new  
instructions from the Public Body following the same documents being provided to the Ethics  
Commissioner following the release of the Iacobucci Review Report. The correspondence from the  
Public Body disclosed several factors it had considered in defining the scope of the Records at Issue,  
which appeared to be considerations not known to the Applicants. An exchange of submissions took  
place with respect to the new information disclosed by the Public Body, which resulted in the issue of the  
scope of the records being referred to another forum and being removed as an issue in this phase of the  
Inquiry.  
The June 10, 2016 Records at Issue were made up of 15 pages of responsive records already identified  
in the main Inquiry and 23 pages of documents designated as Non-Responsive that were not records in  
the main Inquiry that included 4 pages of records from another access to information request. Three of  
the Non-Responsive pages were released by the Public Body during this phase of the Inquiry leaving 35  
pages at issue.  
1
The External Adjudicator provided instructions to the parties on November 16, 2016 with respect to the  
adjudication of the June 10, 2016 package of documents. The parties made submissions with respect to  
the issues identified as relevant at this phase of the Inquiry, specifically, with respect to s. 16, s. 24, s. 27  
and s. 32. This phase of the Inquiry was restricted to the 35 pages of documents provided by the Public  
Body on June 10, 2016.  
The External Adjudicator found the Public Body did not properly rely on the exceptions under s. 27(1)(a),  
s. 27(1)(b)(ii) or s. 27(1)(c)(ii) for any of information in the June 10, 2016 Records at Issue. Because the  
s. 27 exceptions were not properly relied on by the Public Body, the External Adjudicator decided it was  
unnecessary to consider whether the Public Body had properly exercised its discretion in applying the s.  
27 exceptions and quashed its decisions with respect to s. 27. Further, she found that while the s.  
24(1)(a) and s. 24(1)(b)(i) exceptions had been properly relied on for some of the information, the Public  
Body had failed to provide evidence or submissions to demonstrate how it applied the s. 24 discretionary  
exceptions. The External Adjudicator held that the Public Body failed to demonstrate that its exercise of  
discretion was demonstrable and reasonable. The External Adjudicator found that while the s. 16  
mandatory exception may apply to some of the information on some of the pages where it was relied on,  
the Public Body had failed to meet the three-part test under s. 16, specifically, failing to show that  
disclosure of the information could reasonably be expected to harm significantly the business interests of  
third party(ies). With respect to the Applicants’ submissions that the s. 32 public interest override ought to  
apply, the External Adjudicator held that the issue ought to be postponed for consideration until the main  
Inquiry when the remaining 2,570 Records at Issue will be reviewed.  
The External Adjudicator made an Order for Reconsideration ordering the Public Body to make a new  
decision with respect to s. 24 and to provide reasons as to how it applied its discretion. In addition, if the  
Public Body’s reconsideration resulted in a decision to release some or all of the records, for those pages  
where there was information that fell under the terms of the s. 16 mandatory exception, the External  
Adjudicator ordered the Public Body to comply with s. 30(4) of the FOIP Act by giving notice to the third  
party(ies) to enable them to provide their consent to the release of the records or to Request a Review.  
Statutes Cited: AB: Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, ss. 2,  
12, 16, 17, 21, 24, 25, 27, 30, 31, 32, 56, 59, 71, 72; Crown’s Right of Recovery Act, S.A. 2007, c. C-35;  
Interpretation Act, R.S.A. 2000, c. I-8.  
Authorities Cited: AB: Decisions: F2014-D-03, P2011-D-003; Orders: 96-006, 96-011, 96-012, 97-004,  
98-013, F2004-024, F2004-026, F2005-011, F2007-013, F2008-020, F2008-021, F2008-028, F2009-024,  
F2010-030, F2010-036, F2012-01, F2012-06, F2012-10, F2012-13, F2012-14, F2012-17, F2013-01,  
F2013-51, F2014-16, F2014-22, F2014-23, F2014-25, F2014-26, F2014-29, F2014-38, F2014-44, F2014-  
49, F2014-50, F2014-R-01, F2015-22, F2015-28, F2015-29, F2015-34, F2016-31, F2016-35, F2016-65,  
F2017-54, OIPC External Adjudicator Order #4.  
Cases Cited: Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53;  
Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52; Blank v. Canada (Minister of Justice) 2006  
SCC 39; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23; R v Proulx,  
[2000] 1 SCR 61; Alberta v. Suncor Inc., 2017 ABCA 221; Canada (Privacy Commissioner) v. Blood Tribe  
Department of Health, [2008] 2 SCR 574; R. v McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; Lavallee,  
Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61; Solosky v. The  
Queen, [1980] 1 SCR 821; Canada (Public Safety and Emergency Preparedness) v. Canada (Information  
Commissioner), 2013 FCA 104; Pritchard v. Ontario (Human Rights Commission) [2004] 1 SCR 809; The  
Office of the Information and Privacy Commissioner, Saskatchewan v. The University of Saskatchewan,  
2017 SKQB 140; R. v. Campbell, [1991] 1 SCR 565; Moseley v. Spray Lakes Sawmills (1980) Ltd., 1996  
ABCA 141; Covenant Health v. Alberta (Information and Privacy Commissioner, 2014 ABQB 562; John  
Doe v. Ontario (Finance), 2014 SCC 36; Leahy v. Canada (Minister of Citizenship and Immigration), 2012  
FCA 227; Imperial Oil Limited v. Alberta (Information and Privacy Commissioner, 2014 ABCA 231;  
Qualicare Health Service Corporation v. Alberta (Office of the Information and Privacy Commissioner),  
2006 ABQB 515; Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2012  
ABQB 595; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3; Imperial Oil Ltd v. Calgary (City),  
2
2014 ABCA 231; ABC Benefits Corporation v. Alberta (Information and Privacy Commissioner), 2015  
ABQB 662; Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy  
Commissioner), 2014 SCC 31; Dagg v. Canada (Minister of Finance), [1997] 2 SCR 403; Alberta  
(Employment and Immigration) v. Alberta Federation of Labour, 2009 ABQB 344; Edmonton Police  
Commissioner v. Alberta (Information and Privacy Commissioner) 2011 ABQB 291  
Other Sources Cited: Iacobucci Review Report (March 2016); Privilege Practice Note; Adjudication  
Practice Note 1; Solicitor-Client Privilege Adjudication Protocol; FOIP Guidelines and Practices 2009;  
Robert W. McCauley and James L.H. Sprague, Hearings Before Administrative Tribunals 2nd Edition;  
R.J. Sharpe, “Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of  
Upper Canada (1984), 163.  
TABLE OF CONTENTS FOR THE ORDER  
I. Background  
II. Records at Issue  
III. Issues in this Phase of the Inquiry  
IV. Submissions of the Parties  
A. Public Body Initial Submission [2016]  
B. Second Applicant Initial Submission [2016]  
C. First Applicant Initial Submission [2016]  
D. Public Body Reply [2016]  
E. Prior Submissions of the Parties  
V. Discussion of Issues  
Issue #1: Whether the Public Body properly relied on and applied the s. 27 exceptions, specifically s.  
27(1)(a), s. 27(1)(b)(ii), and s. 27(1)(c)(ii) of the FOIP Act, to the information in the June 10, 2016  
Records at Issue.  
Issue #2: Whether the Public Body properly relied on and applied the s. 24 exceptions, specifically s.  
24(1)(a) and s. 24(1)(b)(i) of the FOIP Act, to the information in the June 10, 2016 Records at Issue.  
Issue #3: Whether the Public Body properly relied on and applied s. 16(1)(a)(ii), s. 16(1)(b), and s.  
16(1)(c)(i) of the FOIP Act to the information in the June 10, 2016 Records at Issue.  
Issue #4: Whether the s. 32 public interest override applies to any of the information in the June 10,  
2016 Records at Issue and, if so, who has the onus of proof and what is the test for disclosure of  
information when the override applies.  
VI. Notice to Third Party(ies)  
VII. Order  
I.  
BACKGROUND  
On June 12, 2012, the First Applicant filed a request to access information to Alberta  
[para 1]  
Justice and Solicitor General [Public Body], which read as follows:  
We request all records available from the [Public Body], with respect to the following matters:  
1. Any requests for proposals for external legal services from the [Public Body] or any other  
”public body,” as defined in s. 1(p) of the FOIP, relating to the recovery of health care  
3
costs pertaining to tobacco use, including, without limitation, the recovery of health care  
costs under the Crown’s Right of Recovery Act, SA 2009, C-35 (the “CRRA”), and  
including, without limitation, any deliberations, discussions, evaluations, or other  
information related to any such requests for proposals, and the preparation of any such  
proposals.  
2. Any agreements entered into for external legal services relating to the recovery of health  
care costs pertaining to tobacco use, including recovery under the CRRA, or pursuant to  
any requests for proposals for external legal services described in point 1, supra.  
3. Any policies, standing orders, terms and conditions, or other documents regarding  
procurement applicable to requests for proposals for external legal services, described in  
point 1, supra, or agreements described in point 2, supra.  
4. Without limiting the request set out in point 2, supra, any agreements entered into  
between:  
(a) the Government of Alberta, or any “public body,” as defined in s. 1(p) of the  
FOIP; and  
(b) any law firms, including without limitation:  
(i) [name of law firm]  
(ii) [name of law firm]  
(iii)[name of law firm]  
relating to the recovery of health care costs pertaining to tobacco use, including recovery  
under the CRRA, or pursuant to any requests for proposals for external legal services  
described in point 1, supra.  
[para 2]  
On July 30, 2012, the Second Applicant filed a request to access information [amended  
to include a second paragraph on September 11, 2012] to the Public Body, which read as follows:  
This request for all records as defined by Section 1(q) of the Act related to the awarding of the  
contingency contract between Alberta Justice and [name of law firm]. The request would include,  
but not [be] limited to, the contingency contract itself. [Time period of the records: Sept. 1, 2010 –  
July 1, 2011]  
[A]ny records as defined by Section 1(q) to the process of awarding the tobacco litigation legal  
work, including but not limited to the approval of the firm - [name of law firm] - by the minister.  
Specifically, I am seeking any records related to how [name of law firm] were chosen over their  
competitors.  
[para 3]  
Requests for Inquiry were filed by both Applicants in 2013 for which I issued a Notice of  
Inquiry on June 6, 2014. Near the beginning of the Inquiry following the Public Body Initial Submission  
[2014], a Preliminary Evidentiary Objection [PEO] was filed by the First Applicant on August 14, 2014. On  
December 31, 2014, I issued Decision F2014-D-03/Order F2014-50 [Decision/Order] dealing with the  
PEO. The PEO, supported by both Applicants, was with respect to an Opinion Letter proffered by the  
Public Body in its Initial Submission [2014]. In the Decision/Order I held the Opinion Letter was  
inadmissible outlining the grounds for exercising my discretion to do so in detail. In addition, up to that  
point, as none of the Records at Issue had been provided to me as the External Adjudicator at any point  
since the Inquiry began, part of the Decision/Order was an Order for the Public Body to comply with s.  
56(3) and s. 72(3)(a) of the FOIP Act to produce the complete Records at Issue for examination. The  
Public Body refused to comply and filed an application for Judicial Review. The latter has not been heard  
and has since been adjourned sine die.  
4
[para 4]  
Unexpectedly, on June 10, 2016, counsel for the Public Body sent correspondence to the  
Information and Privacy Commissioner [Commissioner] with respect to new instructions he had received  
from the Ministry regarding the need to provide some of the Records at Issue to the Commissioner’s  
Office. This came as a result of the Public Body having recently provided documents to the Ethics  
Commissioner with respect to an ongoing investigation at that office following the release of the Iacobucci  
Review Report that found important information had not been provided to the Ethics Commissioner. The  
Public Body instructed its counsel to provide the same documents to the Commissioner. The documents  
included a small portion of the Records at Issue, a sizeable portion of those pages designated Non-  
Responsive, and some pages from a different access to information request [2012-G-0102]. The portion  
of the Records at Issue delivered on June 10, 2016 complied, in part, with my Decision/Order. The  
correspondence from counsel for the Public Body was not shared with the Commissioner. In accordance  
with office policy, the Public Body’s letter was brought to my attention because, as the External  
Adjudicator, I continued to have conduct of this Inquiry.  
[para 5]  
On June 17, 2016, I wrote to the parties acknowledging receipt of the Public Body’s June  
10, 2016 correspondence and advising that as this Inquiry was not finished, the Public Body’s letter to the  
Commissioner had been re-routed to me as the External Adjudicator and not given to the Commissioner,  
who remains at arm’s length throughout any inquiry being heard by an External Adjudicator. The Public  
Body was asked to share its letter with the Applicants, which it did on the same day, without the  
accompanying records that were being withheld from the Applicants. After the Public Body had provided  
the June 10, 2016 Records at Issue, several issues arose with respect to the way in which the Public  
Body had defined the scope of the records in response to the access to information requests, which  
issues only became known from the Public Body’s June 10, 2016 correspondence. The parties were  
given an opportunity to make submissions to me with respect to this new information. Thereafter, the  
issue of the Public Body unilaterally defining the scope of the Records at Issue in a manner inconsistent  
with the Applicants’ access requests was referred to another forum, as outlined in my October 24, 2016  
correspondence to the parties, advising all the parties that this issue, therefore, would not be an issue  
during this phase of the Inquiry. The diversion caused by these revelations resulted in unexpected delay  
in proceeding with this phase of the Inquiry dealing with the June 10, 2016 Records at Issue.  
[para 6]  
On November 16, 2016, I set out the scope of this phase of the Inquiry in a detailed letter  
to the parties. I made it clear that this phase of the Inquiry is only to decide whether the Public Body  
properly relied on and applied the exceptions it had claimed for the small portion of the records provided  
to the External Adjudicator (June 10, 2016 Records at Issue). The Public Body’s original access to  
information decisions (First Applicant: August 31, 2012 and Second Applicant: September 21, 2012)  
concerned what was the complete Records at Issue at that time, which included some of the June 10,  
2016 Records at Issue, and read as follows:  
564 pages of records were located in response to your request. Some of the records requested  
contain information that is exempted from disclosure under sections 16, 17, 21, 24, 25 and 27 of  
the Freedom of Information and Protection of Privacy Act or contain information non-responsive  
to your request. We have severed the exempted and non-responsive information so that we could  
disclose to you the remaining information in the records.  
[Decision/Order, at para. 11]  
[para 7]  
While this phase of the Inquiry only relates to the June 10, 2016 Records at Issue, it is  
important to explain other reasons for delay in this phase of the Inquiry. Adjudicating this part of the  
Inquiry has been challenging because during it the Public Body released additional Records at Issue to  
the External Adjudicator and both Applicants on September 30, 2016, committed various errors with  
respect to records’ numbering, produced multiple indices, and referred to records in its Initial Submission  
[2016] that were not listed in the Amended Index for the June 10, 2016 Records at Issue. These  
developments meant defining the parameters of this phase of the Inquiry took some time. On a number  
of occasions, the confusion and mistakes were pointed out to the Public Body who was given several  
opportunities to explain and clarify these issues. On February 2, 2017 and April 7, 2017, the Public Body  
provided letters acknowledging its errors and offering an explanation or recitation of former submissions  
with respect to the renumbering. On January 19, 2017, the Public Body provided another portion of the  
5
Records at Issue with another revised Index, which once again I accepted as partial compliance with my  
Decision/Order. The parties were advised by my letter dated March 23, 2017 that that portion of the  
records will not be dealt with in this phase of the Inquiry but will form part of the main Inquiry when it  
continues, after the disposition of the June 10, 2016 Records at Issue is completed.  
II.  
RECORDS AT ISSUE  
I have prepared a Table of Concordance [Table] for the June 10, 2016 Records at Issue  
[para 8]  
and all of the indices provided by the Public Body, which Table is attached to this Order as Appendix A.  
This has been prepared and included to provide a visual overview of, and details about, the morass of  
indices produced by the Public Body; some intended for the June 10, 2016 Records at Issue, the records  
that are the subject of this phase of the Inquiry. Other indices were provided to correct various errors  
while others were provided by the Public Body to update the index and number of pages for the main  
Inquiry, most of which included pages in the June 10, 2016 Records at Issue as responsive records. I  
considered this Table necessary to establish with certainty the exact pages and exceptions being  
considered for the June 10, 2016 Records at Issue, the sole subject matter during this phase of the  
Inquiry, and to assist the parties as a quick reference. With its Initial Submission [2016] provided on  
December 14, 2016, the Public Body included an Amended Index of Records, as I had requested it to do,  
that reflected the fact that the Public Body had made a decision to release three additional pages of  
records to the Applicants and to apply exceptions to all the pages previously designated Non-Responsive.  
The pages of the June 10, 2016 Records at Issue shown as released [32, 120, 565] have not been  
included in the count of the pages of records presently at issue. As undertaken in my Decision/Order with  
respect to the records, I attended the office of the Commissioner in January 2017 and July 2017 to  
examine the portion of the Records at Issue provided to me by the Public Body on June 10, 2016. I have  
done a line-by-line examination of each page of the Records at Issue, which total 35 pages. The totals  
for the number of pages of records from the original and the latest index are as follows:  
1. June 10, 2016 Records at Issue Index: 23 pages designated Non-Responsive. There was a total  
of 38 pages at the outset of this phase of the Inquiry, during which 3 pages were released [32,  
120, 565]. As a result, there are 35 pages of records remaining at issue in this phase of the  
inquiry [98, 99-102, 103-107, 113-110, 129, 210, 211, 258-261, 262-264, 265-268, 645-648].  
[NOTE: For the purpose of clarification; 3 pages of the June 10, 2016 Records at Issue have  
been released to the Applicants: 32, 120, 565. The Amended Index that accompanied the Public  
Body Initial Submission [2016] had 12 clusters of records listed in the Table (Appendix A)  
showing 3 records released. In its Initial Submission [2016], the Public Body refers to 12 records.  
In the updated April 7, 2017 Amended Index the Public Body has merged two clusters listed in  
the December 14, 2016 Amended Index pages 113-116 and pages 117-119 into one cluster  
pages 113-119. This is how those pages appeared in the original June 10, 2016 Index. Thus,  
the number of records as counted by the Public Body in the most recent index totals 11. Despite  
the recalibration of the clusters, I will refer to 12 records, but only when referencing the parties’  
submissions. I will continue to refer to a Record by page number and count. Lastly, the Public  
Body acknowledged that the Index now included pages as part of the June 10, 2016 Records at  
Issue, previously excluded from the scope of the Records at Issue that had been designated as  
Non-Responsive. These new pages were listed with exceptions in the December 14, 2016  
Amended Index accompanying the Public Body Initial Submission [2016].]  
2. December 14, 2016 Amended Index for the June 10, 2016 Records at Issue: 20 pages previously  
designated as Non-Responsive have had the designation removed and replaced with multiple  
exceptions discussed below under Part III of this Order. Pages 32, 120, and 565 (previously  
designated as Non-Responsive) are marked as released to the Applicants. There is a total of 35  
pages at issue in this phase of the Inquiry.  
[NOTE: The Public Body renumbered pages 566-569 to 645-648 for the purpose of its Amended  
Index (the Index provided with its Initial Submission [2016] on December 14, 2016 and also  
included in other amended indices, the last version provided on April 7, 2017). In its April 7, 2017  
correspondence, the Public Body explains the original numbering resulted from the fact that “two  
6
of the June 2016 documents came from a different FOIP package, specifically, records 565 and  
566-569 (as 566-569 were then numbered). These two documents were not records that had  
originally formed part of OPIC [sic] File F6525/F6761. This is why they were not listed in the  
August 6, 2014 Index.” In later indices in the main Inquiry, including the September 30, 2016  
Index, there are pages newly numbered 566-569. The latter pages are not at issue in this phase  
of the Inquiry. The replacement pages for 566-569 in the June 10, 2016 Index that are pages  
newly numbered 645-648 are at issue in this phase. None of these pages have been released to  
the Applicants. The Public Body indicated it had made a decision to release 3 pages [32, 210,  
565] of the June 10, 2016 Records at Issue to the Applicants when it provided its September 30,  
2016 package to the Applicants. However, in the September 30, 2016 Index only two of those  
released pages were shown as such in the accompanying Index [32, 565]. Page 120 continued  
to be designated as Non-Responsive. The Public Body indicated it had applied exceptions to the  
remaining pages designated Non-Responsive [99-107, 113-119]. However, those pages  
continued to be shown as Non-Responsive in the Index as well. It was not until the December  
14, 2016 Amended Index, however, that the Public Body added exceptions for these pages of  
records to the index. As this phase of the Inquiry progressed, I became concerned that page 120  
had not in fact been released to the Applicants as it did not appear in my copy of the records  
released to the Applicants and was not shown as released in the September 30, 2016 Index. I  
felt it imperative to confirm with the Applicants whether they had received page 120 because, if  
not, that page of the records would be at issue during this phase of the Inquiry. On June 15,  
2017, I communicated with the parties and discovered that page 120 (neither hard copy nor  
electronic) had not been received by the Applicants with the September 30, 2016 package from  
the Public Body. Upon realizing its error, the Public Body immediately released a copy of page  
120 to the Applicants on the same day. At no time did the Public Body make it clear whether its  
decision(s) to disclose 3 additional pages of the June 10, 2016 Records at Issue to the Applicants  
in September 30, 2016 and June 15, 2017 and its decision to rely on and apply exceptions to the  
20 newly included pages (previously designated Non-Responsive) in the December 14, 2016  
Amended Index constituted a new decision(s) under s. 12 of the FOIP Act.]  
[para 9]  
Throughout this phase of the Inquiry, there has been considerable tension with respect to  
exactly what constitutes the Records at Issue and which exceptions have been applied to the contents of  
the records. Considerable time and effort has gone into ensuring which pages of records are at issue and  
where and how exceptions have been applied. The problem has been confounded by this fact: for every  
page designated “Non-Responsive” in the June 10, 2016 Index, which included 23 pages of the total of 38  
pages, when it was added as a responsive record for this phase of the Inquiry, there were no markings on  
the page showing what exceptions have been applied and how they have been applied to the contents of  
each page line-by-line. In other words, the only way to discern what exception or exceptions have been  
applied is to refer to that page in the index (and Amended Indices) and see what exception(s) is listed.  
The result is that for the remaining June 10, 2016 Records at Issue, the Public Body has applied sections  
of either two or three exceptions to disclosure it is claiming to all of the information on each page for 33  
pages of the total 35 pages. That means, for example, for page 99 (previously designated Non-  
Responsive), the Public Body has applied, without specificity, exceptions under sections 16, 24 and 27 to  
the whole page 99 with no indication on the page which exception(s) applies to which lines or portions of  
the information on the page. The only exceptions as to how an exception has been applied, line-by-line  
with clear redactions are 2 pages: 210 and 211, which were never designated Non-Responsive. The  
Public Body may have intended to assert the exceptions in this blanket manner to the previously  
designated “Non-Responsive” records but regardless how this has been done does not accord with best  
practice taking into account the purpose of the legislation: “right of access … subject to limited and  
specific exceptions.” This coupled with the confusion over the indices, the way the pages of the June 10,  
2016 Records at Issue have been prepared makes it very difficult to assess whether or how an exception  
or exceptions apply to specific information on each page of the records.  
7
III.  
ISSUES IN THIS PHASE OF THE INQUIRY  
On June 6, 2014 at the start of the main Inquiry, I sent the Notice of Inquiry to the parties  
[para 10]  
outlining the relevant issues in the Inquiry, which were reproduced in my Decision/Order, and read as  
follows:  
1. Whether the Public Body properly relied on and applied s. 16 of the FOIP Act [reasonable  
expectation disclosure harmful to business interests of a third party] to the information in the  
records.  
2. Whether the Public Body properly relied on and applied s. 17 of the FOIP Act [disclosure of  
personal information unreasonable invasion of privacy] to the information in the records.  
3. Whether the Public Body properly relied on and applied s. 21 of the FOIP Act [reasonable  
expectation disclosure harmful to intergovernmental relations] to the information in the records.  
4. Whether the Public Body properly relied on and applied s. 24 of the FOIP Act [reasonable  
expectation disclosure could reveal advice from officials] to the information in the records.  
5. Whether the Public Body properly relied on and applied s. 25 of the FOIP Act [reasonable  
expectation disclosure harmful to economic and other interests of a public body] to the  
information in the records.  
6. Whether the Public Body properly relied on and applied s. 27 of the FOIP Act [privileged  
information] to the information in the records.  
7. Whether the Public Body properly removed some information in the records on the basis the  
information was non-responsive to the request to access information.  
8. Whether public interest under s. 32 of the FOIP Act is an issue in the inquiry.  
[Decision/Order, at para. 11]  
[para 11]  
For the purpose of this phase of the Inquiry dealing solely with the June 10, 2016  
Records at Issue, the question is which of all of these issues are relevant? By correspondence dated  
November 16, 2016, I advised the parties that Issue #7 would not be considered in this phase of the  
Inquiry, as the matter had been referred to another forum. In addition, there are no examples in the Index  
or Amended Index for the June 10, 2016 Records at Issue where the following exceptions have been  
relied on by the Public Body: s. 17, s. 21, and s. 25. As a result, issues #2, #3, #5 and #7 will not be  
considered during this phase of the Inquiry.  
[para 12]  
In its Initial Submission [2016], the Public Body submitted there were two issues in this  
phase of the Inquiry. In identifying the first issue: “Did the public body properly exercise its discretion to  
withhold information as set out in the Amended Index for the June 10, 2016 Records?” (the Public Body  
did not refer to any specific discretionary exceptions and made no reference to a mandatory exception in  
stating the issue). In the text of its submissions, however, the Public Body made submissions with  
respect to two discretionary exceptions: s. 24 and s. 27, and one mandatory exception: s. 16.  
[para 13]  
With respect to the s. 16 exception, on a review of the index that was at Tab 3(c) of the  
Public Body Initial Submission [2014], the “list of exemptions applied to the records” referred only to s.  
16(1)(a)(ii), 16(1)(b) and s. 16(1)(c)(i) for pages 258-271. This was the List of Exemptions that was  
provided with the access to information decision letters. These pages are not included in the index at Tab  
1 of the Public Body Initial Submission [2014]. In the Amended Index for the June 10, 2016 Records at  
Issue attached to its Initial Submission [2016], the Public Body did not specify any subparagraph under s.  
16(1)(c) for pages 258-261 and 265-268 (but did for pages 262-264). Yet in the September 30, 2016  
Index and the January 19, 2017 Index the Public Body claims s. 16(1)(a)(ii), s. 16(1)(b), and s. 16(1)(c)(i).  
But then again in the February 2, 2017 Amended Index and the April 7, 2017 Amended Index, the Public  
8
Body once again makes no reference to a subparagraph for the following pages of the records: pages  
258-261 and 265-268 citing only s. 16(1)(c).  
[para 14]  
I am going to treat the absence of a designation of a subparagraph (i) under s. 16(1)(c)  
that is not cited in some of the indices for pages 258-261 and 265-268 to be either a typographical error  
or an oversight and that the Public Body’s intention is reflected in the index that accompanied its access  
to information decision letters: to claim three specific subsections of s. 16. The purpose section of the  
legislation provides in s. 2 of the FOIP Act that a person has a right of access “subject to limited and  
specific exceptions.” Despite the lack of specificity, I am giving the Public Body the benefit of the doubt,  
that it intended to claim the three subparagraphs cited most often in the various indices, notably to include  
s. 16(1)(c)(i) when it relied on the s. 16 exception. The latter will be considered in deciding Issue #3  
discussed below.  
[para 15]  
At the outset of the Inquiry in 2014, the last issue listed was; whether public interest  
under s. 32 of the FOIP Act is an issue in the Inquiry. In its Initial Submission [2016], the First Applicant  
submitted one of the critical factual and legal matters to consider is: “the burden of proof and test for  
disclosure in the public interest under section 32 of the Act.” The Second Applicant restricted his/her  
Initial Submission [2016] to the issues of “privilege, and to the admissibility of evidence and the public  
body’s failure to acknowledge it unilaterally restricted the time frame of my access request.” In Issue #4  
below, I have modified public interest to reflect how this issue has emerged since the outset of the Inquiry  
in 2014 and how it relates at this phase of the Inquiry.  
[para 16]  
When setting out the schedule for exchange of submissions in my November 16, 2016  
letter to the parties, I requested that the Public Body provide a revised Index of the Records removing  
Non-Responsive and replacing that designation with the exceptions to disclosure it intended to rely on.  
The Amended Index was provided by the Public Body with its Initial Submission [2016] at Tab 1. In  
replacing the designation of Non-Responsive, the Public Body relied on the same three exceptions it had  
already applied to the other pages in the June 10, 2016 Records at Issue. The specific exceptions newly  
claimed are itemized in the attached Table (Appendix A) and have been specified in the issues below.  
[para 17]  
To summarize, the relevant Issues for the June 10, 2016 Records at Issue are as follows:  
1. Whether the Public Body properly relied on and applied the s. 27 exceptions, specifically s.  
27(1)(a), s. 27(1)(b)(ii), and s. 27(1)(c)(ii) of the FOIP Act, to the information in the June 10, 2016  
Records at Issue.  
2. Whether the Public Body properly relied on and applied the s. 24 exceptions, specifically s.  
24(1)(a) and s. 24(1)(b)(i) of the FOIP Act, to the information in the June 10, 2016 Records at  
Issue.  
3. Whether the Public Body properly relied on and applied s. 16(1)(a)(ii), s. 16(1)(b), and s.  
16(1)(c)(i) of the FOIP Act, to the information in the June 10, 2016 Records at Issue.  
4. Whether the s. 32 public interest override applies to any of the information in the June 10, 2016  
Records at Issue and, if so, who has the onus of proof and what is the test for disclosure of  
information when the override applies.  
IV.  
SUBMISSIONS OF THE PARTIES  
[Throughout the review of the submissions and evidence provided by the parties, I have included some  
commentary [NOTE] to provide clarity where I thought it would be helpful to the parties.]  
9
A.  
[para 18]  
PUBLIC BODY INITIAL SUBMISSION [2016]  
The following is a summary of the Public Body Initial Submission [2016] with respect to  
the June 10, 2016 Records at Issue, which was provided on December 14, 2016:  
Description of the Inquiry  
1. The Public Body describes this phase of the Inquiry, under the FOIP Act, as pertaining only to  
Records provided to the External Adjudicator on June 10, 2016.  
2. The Public Body indicates that these submissions are in addition to those it provided on August 6,  
2014, September 7, 2016 and September 19, 2016.  
Documentation of the Inquiry: Amended Index for the June 10, 2016 Records  
3. At Tab 1, the Public Body attaches an Amended Index for the June 10, 2016 Records at Issue. It  
further indicates that the Amended Index lists 15 records, 3 of which have been released, leaving  
12 at issue (the Public Body has chosen to tally the Records by cluster, not by page). The Public  
Body confirms these 12 clusters of Records were included in the September 30, 2016 Index  
provided to the External Adjudicator and the Applicants. The Public Body states the original  
Index of Records “was revised to take account of (a) including draft records, (b) extending the  
time frame of the records request, and (c) the records which were provided to the External  
Adjudicator in June 2016.” At Tab 2, the Public Body provides an explanation for the creation of  
the September 30, 2016 Index, which is a complete Index for all of the Records at Issue in the  
main Inquiry with some of the June 10, 2016 Records at Issue added.  
[NOTE: As stated above, the Public Body stated that the September 30, 2016 Index was intended  
to include the new pages from the June 10, 2016 Records at Issue, previously excluded as  
beyond the scope, that had been designated Non-Responsive. However, it was not until the  
December 14, 2016 Amended Index that the exceptions were applied. The Public Body appears  
to have intended to release 3 pages and add the exceptions in September 2016 but only part was  
achieved. In its Initial Submission [2016], the Public Body did not make it clear as to whether its  
decision to disclose 3 pages and to rely on and apply exceptions to the newly included pages  
constituted a new decision(s) under s. 12 of the FOIP Act.]  
Issues  
4. The Public Body states there are two issues at this point in the Inquiry:  
a. Did the Public Body properly exercise its discretion to withhold information as set out in the  
Amended Index for the June 10, 2016 Records?  
b. Did the Applicants demonstrate that the June 10, 2016 Records should be disclosed as a  
matter of public Interest?  
[NOTE: In its list of issues, the Public Body neither made reference to any of the specific  
discretionary exceptions nor to whether or not it had properly relied on and applied the mandatory  
exception in s. 16 of the FOIP Act.]  
Evidence  
5. The Public Body lists the evidence it has provided as follows:  
1. The Amended Index for the June 10, 2016 Records;  
2. The Public Body’s letter dated September 19, 2016;  
3. The Affidavit of the FOIP Advisor [FOIP Advisor] sworn April 16, 2013;  
4. The Affidavit of FOIP Director and Records Management [FOIP Director] sworn July 31,  
2014; and  
5. Letter report dated July 2, 2014 from the Honourable Edward P. MacCallum, a retired Justice  
of the Court of Queen’s Bench of Alberta [Opinion Letter].  
[NOTE: The final item in the list of evidence, the Opinion Letter, was the subject of my  
Decision/Order released December 31, 2014 with respect to the PEO, in which I found the  
Opinion Letter to be inadmissible in the Inquiry. The Public Body has filed a Judicial Review of  
10  
that Decision/Order, which has been adjourned sine die. During this phase of the Inquiry,  
because I have the June 10, 2016 Records at Issue, I find it unnecessary to consider the  
propriety of the Public Body trying to resubmit the Opinion Letter found to be inadmissible into  
evidence during this phase of the Inquiry, a step the Applicants strongly oppose. I find it  
unnecessary to consider particularly given that the Public Body itself does not refer to it in the text  
of its Initial Submission [2016]. The Opinion Letter has not been re-read or considered during this  
phase of the Inquiry.]  
Section 27 Records: Legal Privilege  
6. The Public Body submits that “s. 27(a)(a) [sic]” permits the non-disclosure of information which is  
protected by any type of legal privilege, including solicitor-client privilege, citing s. 27(1)(a).  
7. The Public Body distinguishes between solicitor-client and litigation privilege summarizing them  
as follows:  
Solicitor-client privilege pertains to communications related to seeking legal advice from a lawyer  
(sometimes called ”legal advice privilege”). Litigation privilege pertains to materials created or  
obtained for existing or contemplated litigation. Litigation privilege is now recognized as being a  
separate legal privilege from solicitor-client privilege.  
8. The Public Body points to two recent decisions of the Supreme Court of Canada that reaffirmed  
the cardinal importance of both types of class privileges, which are not to be undermined on a  
case-by-case basis or by weighing of other factors.  
9. After highlighting portions of the two judgments (Alberta (Information and Privacy Commissioner)  
v. University of Calgary, 2016 SCC 53 [U of C], at paras. 34-35 and Lizotte v. Aviva Insurance  
Company of Canada, 2016 SCC 52 [Lizotte], at para. 24; See also Blank v. Canada (Minister of  
Justice) 2006 SCC 39 [Blank], the Public Body references Justice Gascon’s description of the  
differences between litigation privilege and solicitor-client privilege in that case as follows:  
1. The purpose of solicitor-client privilege is to protect a relationship, while litigation privilege is  
to ensure the efficacy of the adversarial process (para. 27);  
2. Solicitor-client privilege is permanent, whereas litigation privilege is temporary and lapses  
when the litigation ends (paras. 34 and 36);  
3. Litigation privilege applies to unrepresented parties, even where there is no need to protect  
access to legal services (para. 32);  
4. Litigation privilege applies to non-confidential documents (para. 28, quoting R.J. Sharpe,  
“Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of  
Upper Canada (1984), 163, at pp. 164-65);  
5. Litigation privilege is not directed at communications between solicitors and clients as such  
(para. 27).  
[NOTE: In its Initial Submission [2016], the Public Body cites paragraph numbers that are in fact  
paragraph references from the Blank decision cited by Justice Gascon in the Lizotte decision.]  
10. Referring to the affidavit of the FOIP Director, the Public Body submits that the 12 unreleased  
records are confidential communications between a solicitor and client in the context of obtaining  
legal advice and those records all relate to Alberta’s lawsuit against the tobacco companies,  
which remains ongoing. Accordingly it submits that all of the 12 unreleased June 10, 2016  
Records at Issue are protected by both types of legal privilege.  
11. Again relying on the FOIP Director’s affidavit, the Public Body submits that the affidavit makes  
clear that the records described in the Amended Index of the June 10, 2016 Records at Issue are  
exempt from disclosure based on the exemptions in paragraphs 27(1)(b) and 27(1)(c) of the FOIP  
Act, which go beyond legal privilege, referencing two additional subparagraphs of s. 27.  
Accordingly, it submits, all of the 12 unreleased Records at Issue are exempt from disclosure by  
virtue of s. 27.  
11  
[NOTE: Despite its point 7 above, the Public Body makes no distinction between the pages it  
claims s. 27(1)(a) solicitor-client privilege applies to versus pages it claims litigation privilege  
applies to versus pages to which s. 27(1)(b) and s. 27(1)(c) apply, respectively. In essence, the  
Public Body claims all 12 of the June 10, 2016 Records at Issue are exempt under all of the  
provisions under s. 27: s. 27(1)(a), s. 27(1)(b) and s. 27(1)(c). In addition, the Amended Index  
included with the Public Body Initial Submission [2016] was provided on December 14, 2016 after  
a request from me on November 16, 2016 for additional evidence. There is no reference in the  
FOIP Director’s affidavit to the December 14, 2016 Amended Index for the June 10, 2016  
Records at Issue because his/her affidavit was sworn on July 31, 2014 and the Amended Index  
was not prepared or provided by the Public Body until December 14, 2016.]  
Burden of Proof for establishing privilege  
12. Referring to the U of C case (provided at Tab 3 of its Initial Submission [2016]), the Public Body  
cites the Supreme Court of Canada decision as authority for the proposition that a public body is  
not required under the FOIP Act to meet a higher burden or standard to assert legal privilege  
beyond the burden or standard under provincial civil litigation practice, which reads in part:  
…the prevailing authority in Alberta in civil litigation allowed a party to bundle and identify  
solicitor-client privileged documents by document numbers, as the University had done…  
No evidence or argument was made to suggest that solicitor-client privilege had been  
falsely claimed by the University. In these circumstances, the delegate erred in  
concluding that the claim needed to be reviewed to fairly decide the issue.  
[U of C, at para. 70]  
13. The Public Body, relying on Lizotte in the Supreme Court of Canada submits that a public body  
does not bear the onus to prove on a case-by-case basis that privilege applies once it has  
asserted the privilege and provided evidence about the nature and circumstances in which  
privilege applies. Thereafter, the evidentiary burden shifts to the party alleging privilege does not  
apply.  
[A]ny document that meets the conditions for the application of litigation privilege will be  
protected by an immunity from disclosure unless the case is one to which one of the  
exceptions to that privilege applies. As a result, the onus is not on a party asserting  
litigation privilege to prove on a case-by-case basis that the privilege should apply in light  
of the facts of the case and the “public interests” that are at issue (National Post, at para.  
58).  
[Lizotte, at para. 37]  
14. The Public Body submits that it is not required under the FOIP Act to meet a higher burden or  
standard to assert legal privilege beyond what is required in provincial civil litigation practice.  
That is, once a public body asserts privilege and provides evidence about the nature and  
circumstances in which privilege applies, short of evidence that a public body has inappropriately  
claimed either privilege, the onus shifts to any party alleging the privilege does not apply. The  
Public Body asserts that there is no evidence in the record to suggest that it has inappropriately  
claimed either solicitor-client or litigation privilege or any other exemptions in paragraphs 27(1)(b)  
and 27(1)(c) of the FOIP Act.  
Section 16 Records  
15. The Public Body cites the exception in s. 16 of the FOIP Act and submits that as it noted in its  
Initial Submission [2014] in response to the PEO, the Records in the Amended Index include  
information described in s. 16. The Public Body submits the following: “For example, the  
Contingency Fee Agreement directly affects the financial interests of the other party to it - the  
Province’s lawyers in the tobacco recovery litigation. The applicants refer to these lawyers being  
the successful group in obtaining the retainer from the Province to prosecute the tobacco  
recovery litigation.”  
12  
[NOTE: It is noteworthy that the Public Body used the Contingency Fee Agreement [CFA] as its  
example in its submission with respect to the applicability of s. 16 despite the fact that the pages  
assigned to the CFA [551-564] do not form part of the June 10, 2016 Records at Issue. It is also  
worth noting that despite the fact the Public Body used the CFA in its argument regarding s. 16, in  
the original Index prepared by the FOIP Advisor, in the index provided with its Initial Submission  
[2014], in the September 30, 2016 Index and in the January 19, 2017 Index, the Public Body has  
never claimed s. 16 for pages 551-564, the pages assigned to the CFA. Given the Public Body’s  
reference in its Initial Submission [2016] to the CFA, by letters dated March 1, 2017 and March  
23, 2017, I offered the Public Body the opportunity to provide these pages to me, along with a  
request to provide a further explanation about other pages that had been renumbered. The  
response from the Public Body was delayed due to unforeseen and unavoidable circumstances.  
An explanation of the renumbering was provided by the Public Body on April 7, 2017 attributing it  
to the addition of records, but it declined my suggestion to provide the pages of records 551-564,  
which it confirmed are the CFA. This is despite its reference to the CFA in its submissions with  
respect to s. 16 in this phase of the Inquiry. When this was pointed out by me, the Public Body  
failed to provide another example from the June 10, 2016 Records at Issue with respect to s. 16.]  
16. Further, with respect to s. 16, the Public Body notes that the June 10, 2016 Records at Issue  
contain information provided by other prospective law firms and disclosure could reasonably be  
expected to affect their financial interests and competitive position and, if there is any doubt about  
the application of s. 16 of the FOIP Act to this information, the outside lawyers should be given  
notice and provided with the opportunity to make submissions as to whether s. 16 applies to the  
information relating to them.  
Section 24 Records  
17. The Public Body cites, in part, the discretionary exception in s. 24 of the FOIP Act and submits  
the following: “The purpose of section 24 is to allow persons having responsibility to make  
decisions to freely and frankly discuss the issues before them in order to arrive at well-reasoned  
decision without fear of their discussions being made public.” [citing Order F2015-34, at para. 67  
(provided at Tab 5 of the Public Body Initial Submission [2016]).]  
18. After referring to the purpose of s. 24, the Public Body submits that as noted in its Initial  
Submission [2014] “the records described in the Amended Index includes information described  
in paragraphs [sic] 24(1)” going on to cite the text from s. 24 of the FOIP Act. After paraphrasing  
s. 24(1)(a) and s. 24(1)(b), the Public Body reproduces most of the language of s. 24(1)(c):  
“positions, plans, procedures, criteria or instructions developed for the purpose of contractual or  
other negotiations by or on behalf of the Government of Alberta, or considerations that relate to  
those negotiations” and then adds: “(which directly applies to the selection of external counsel  
and the negotiation of the Contingency Fee Agreement).”  
[NOTE: It is important to note two critical details: first, the Public Body has not relied on s.  
24(1)(c) for any page of the June 10, 2016 Records at Issue and s. 24(1)(c) is not listed in any of  
the indices provided including any of the amended indices. The exception in s. 24(1)(c) is not at  
issue in this phase of the Inquiry. Second, it should be pointed out that the Public Body’s  
reference to the Amended Index in relation to the information discussed in its Initial Submission  
[2014] ] is misleading. This is because first, there was no Amended Index until 2016 and,  
second, 20 of the total 35 pages of the June 10, 2016 Records at Issue, for which s. 24 is now  
claimed, were, at the time the Public Body Initial Submission [2014] was provided, not part of the  
Records at Issue as those pages were designated Non-Responsive or were pages from another  
access to information request [2012-G-0102] that had not yet been included.]  
19. The Public Body submits it properly exercised its discretion to withhold information pursuant to s.  
24.  
[NOTE: The Public Body did not provide any further details or explanation with respect to the  
exercise of its discretion under s. 24 other than referring to the purpose of the s. 24 exception  
referred to at point 17 above.]  
13  
20. The Public Body cites s. 32(1)(a) and (b) and, referring back to its Initial Submission [2014] in  
response to the PEO and its September 19, 2016 correspondence, submits, at para. 30, that “s.  
32 deals with situations where there is an urgent need to disclose information about an  
emergency involving a risk of significant harm to the environment or health and safety of the  
public.”  
21. The Public Body asserts that a distinction must be made between information that may well be of  
interest to the public and information that is a matter of public interest. For the latter statutory  
test, the Public Body quotes the following: “[T]he pre-condition that the information must be  
“clearly a matter of public interest” must refer to a matter of compelling public interest.” [citing  
Order F2012-14, at pg. 41 (provided at Tab 6 of the Public Body Initial Submission [2016])  
[Emphasis in original]  
[NOTE: The footnote citation for the quote from Mr. Justice Cairns is not correct. The quote from  
Justice Cairns is at p. 42 [para. 154] in Order F2012-14, not pg. 41.]  
Section 32 and the burden of proof  
22. The Public Body submits that the Applicants have the burden of providing the disclosure of the  
information in the records comes under s. 32:  
The applicant has the burden of proof at this part of the investigation and it is not a  
burden that will be easily met. These pre-conditions are:  
risk of significant harm to the environment  
risk of significant harm to the health or safety of the public  
release is clearly in the public interest.  
The latter of these pre-conditions was considered by Mr. Justice Cairns in Bosch [Order  
96-014 (External Adjudication Order No. 1)]. In the portion of the Bosch decision dealing  
with section 31(1)(b) [now section 32(1)(b)], Mr. Justice Cairns considered what type of  
information might be “clearly in the public interest”. He made an important distinction  
between information that “may well be of interest to the public” and information that is “a  
matter of public interest.” I agree with this point. I cannot conclude that the Legislature  
intended for section 31 [now section 32] to operate simply because a member of the  
public asserts “interest” in the information. The pre-condition that the information must be  
“clearly a matter of public interest” must refer to a matter of compelling public interest.  
[citing Order F2012-14, at para. 154; citing from Order 96-011, at paras. 48-53]  
23. The Public Body submits this is consistent with the Lizotte decision and that there is no evidence  
that the information in the records meets any of the requirements in s. 32.  
24. The Public Body submits that there is no evidence that the records contain information that meets  
any of the requirements in s. 32; the fact that one applicant is a member of the media who has an  
interest in the information that s/he considers the public may have an interest in and the other  
applicant being a law firm does not mean the information in the records is “a matter of compelling  
public interest.” [citing Order F2014-25, at para. 97 (provided at Tab 7 of its Initial Submission  
[2016]).]  
Summary  
25. In the last paragraph of its Initial Submission [2016], the Public Body provides a summary, which  
reads in full as follows:  
In summary, Alberta Justice submits that it has properly exercised its discretion to  
withhold the information in the Amended Index of the June 10, 2016 Records. In  
addition, the applicants have not met the requirements of section 32 that would allow  
14  
overriding the exceptions to disclosure which the public body has properly asserted with  
respect to the June 10, 2016 records.  
[NOTE: In its summary, the Public Body again only refers to the exercise of its discretion and  
makes no mention of the mandatory exception in s. 16.]  
26. Attached to the Public Body Initial Submission [2016] are the following:  
Tab 1: Amended Index for the June 10, 2016 Records at Issue  
Tab 2: Additions to the Index: Summary of the Index provided September 30, 2016 -  
OPIC [sic] File 6525/F6761  
Tabs 3-7: Cases referred to in the Public Body Initial Submission [2016]  
B.  
[para 19]  
SECOND APPLICANT INITIAL SUBMISSION [2016]  
The Applicants’ submissions are being provided in the order in which they were received.  
The following is a summary of the Second Applicant Initial Submission [2016], which was provided on  
January 5, 2017:  
1. The Second Applicant indicates his/her Response Submission is limited to the issues of privilege,  
admissibility of evidence and the Public Body’s failure to acknowledge its unilateral restriction of  
the time frame for his/her request to access information.  
[NOTE: The Applicant had already been made aware that the issue concerning the unilateral  
decision of the Public Body to limit the scope of the access request had been referred to another  
forum and was not an issue in this phase of the Inquiry.]  
2. The Second Applicant acknowledges the recent ruling in U of C in the Supreme Court of Canada  
but contends that the Public Body has not provided sufficient information about the content of the  
June 10, 2016 Records at Issue as suggested by the Commissioner’s Privilege Practice Note, a  
copy of which s/he attaches, released by the Commissioner’s Office following the recent rulings in  
U of C and Lizotte.  
3. The Second Applicant quotes from the Privilege Practice Note where it refers to a decision from  
the Alberta Court of Appeal cited by the Supreme Court of Canada in the U of C case, as the  
relevant authority in Alberta, as follows:  
In Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53  
(), the Supreme Court of Canada (SCC) suggested that the rules applicable to  
claims of solicitor-client privilege in the context of civil litigation apply to privilege claims in  
the context of access requests. The SCC also cited Canadian Natural Resources Ltd. v.  
ShawCor Ltd., 2014 ABCA 289 … as the relevant authority in Alberta. In this case, the  
Alberta Court of Appeal discussed the application of Rules 5.7 and 5.8 of the Rules of  
Court (producible records, and records for which there is an objection to produce). The  
Court stated (at paras. 42-43):  
…Therefore, in explaining the grounds for claiming privilege over a specific  
record, a party will necessarily need to provide sufficient information about that  
record that, short of disclosing privileged information, shows why the claimed  
privilege is applicable to it. Depending on the circumstances, this may require  
more or less than the “brief description” contemplated under Rule 5.7 (1)(b)  
although we expect that oftentimes the brief description will suffice.  
Accordingly, under either interpretation of the relevant Rules, a party must  
provide a sufficient description of a record claimed to be privileged to assist other  
parties in assessing the validity of the claim. From this, it follows that all relevant  
and material records must be numbered and, at a minimum, briefly described,  
15  
including those recorded for which privilege is claimed. As noted, though, this is  
subject to the proviso that the description need not reveal any information that is  
privileged.  
This is the basis for the practice note for the provision of evidence by Respondents  
claiming solicitor-client privilege over records. The practice note also applies to litigation  
privilege on the basis of the significance attributed to that privilege by the SCC in  
Lizotte…  
[Privilege Practice Note, at pg. 1]  
4. The Second Applicant recognizes that in his/her prior submissions s/he acknowledged that the  
Public Body was not required to provide more detailed information under the former Adjudication  
Practice Note 1, though the note recommended it as best practice. But, s/he submits, with the  
issuance of the Privilege Practice Note based on the case law cited above, the onus has been  
directly assigned to the Public Body to provide sufficient information to show why the claimed  
privilege is applicable.  
5. The Second Applicant submits that the Amended Index provided by the Public Body does not  
contain sufficient information for the External Adjudicator to determine if legal privilege or any  
other exceptions cited to withhold records have been properly applied and that the Amended  
Index does not comply with the Privilege Practice Note.  
6. The Second Applicant refers to the Public Body Initial Submission [2016] in which it states there  
is no evidence in the record to suggest that the Public Body has inappropriately claimed any part  
of legal privilege [s. 27] but the Second Applicant submits that the Public Body has not clearly  
provided sufficient evidence to show it appropriately applied the exceptions. [Emphasis in original]  
7. The Second Applicant refers to a record that the Public Body chose to release (memorandum  
dated December 14, 2010 from the then Minister of Justice and Solicitor General) which contains  
similar information to other records that have been completely withheld based on solicitor-client or  
litigation privilege. The Second Applicant argues that this raises a question as to whether the  
Public Body has selectively released records and, therefore, whether it has appropriately claimed  
privilege over records it withheld.  
8. With respect to the Opinion Letter that the Public Body has listed as evidence in this phase of the  
Inquiry, the Second Applicant refers to my Decision/Order that ruled the Opinion Letter  
inadmissible and objects to this evidence being included for the same reasons it was rejected  
previously, notwithstanding that the Decision/Order being under Judicial Review.  
[NOTE: The Public Body’s application for Judicial Review had not been adjourned sine die until  
after the Second Applicant Initial Submission [2016] was provided to me.]  
9. The Second Applicant’s final point is that s/he submits it is troubling that the Public Body has  
once again failed to acknowledge it unilaterally restricted the time frame of his/her access  
request. S/he submits it is false for the Public Body to use language like “extending the time  
frame of the record request” when the time frame for his/her access request was to July 1, 2011;  
particularly given that the Public Body has no right under the FOIP Act to arbitrarily change the  
time frame of an access request.  
[NOTE: By way of emphasis, I repeat, by correspondence dated November 16, 2016, I advised  
the parties that issue regarding the Public Body unilaterally changing the scope of the access  
requests would not be considered in this phase of the Inquiry, as the matter was being dealt with  
in another forum.]  
10. There is one attachment to the Second Applicant Initial Submission [2016]: Privilege Practice  
Note from the Office of the Information and Privacy Commissioner of Alberta dated December  
2016.  
16  
C.  
[para 20]  
FIRST APPLICANT INITIAL SUBMISSION [2016]  
The following is a summary of the First Applicant Initial Submission [2016], which was  
provided on January 15, 2017:  
Introduction  
1. The First Applicant Initial Submission is in response to the Public Body Initial Submission [2016]  
concerning the 12 unreleased Records at Issue provided to the External Adjudicator June 10,  
2016 and includes its other prior submissions in the Inquiry by reference, namely July 9, 2014  
and September 23, 2016.  
2. The First Applicant submits that this phase of the Inquiry does not engage its primary access  
information issue with the Public Body; the refusal to disclose the CFA under which Alberta  
retained an external law firm to pursue the multi-billion dollar tobacco litigation on its behalf.  
3. Notwithstanding, the First Applicant provides a submission to clarify critical factual and legal  
matters:  
1. The Public Body’s improper reliance on inadmissible evidence;  
2. The Public Body’s improper narrowing of the First Applicant’s access to information request;  
3. The reasonableness requirement under the discretionary exemptions to disclosure under the  
FOIP Act, for example, solicitor-client privilege;  
4. The Public Body’s improper attempt to bootstrap its refusals by claiming new exemptions to  
disclosure that were not applied by its FOIP Director; and,  
5. The burden of proof and test for disclosure under s. 32 (public interest) of the FOIP Act.  
[NOTE: With respect to the second matter listed above I repeat, by correspondence dated  
November 16, 2016, I advised the parties that issue regarding the Public Body unilaterally  
changing the scope of the access requests would not be considered in this phase of the Inquiry,  
as the matter was being dealt with in another forum.]  
Scope of this Stage of the Inquiry  
4. The First Applicant describes the unreleased Records at Issue disclosed to the External  
Adjudicator on June 10, 2016 as “(i) four emails; (ii) three final documents); (iii) four draft  
documents; and (iv) one draft “Action Request Cover Sheet”.” The First Applicant submits that  
the Public Body’s “stated basis for providing the 2016 Records at Issue to the External  
Adjudicator is the disclosure of same to the Ethics Commissioner.”  
5. The First Applicant observes that the Public Body has consistently represented that the CFA is  
contained in pages 551-564 (citing sources of those representations that were included in  
correspondence from the First Applicant to the External Adjudicator dated September 23, 2016  
providing the audio and written transcript of a voicemail from a Public Body FOIP employee to a  
business partner of the First Applicant) and argues that the Public Body has nevertheless failed,  
despite repeated requests, to confirm whether it still takes this position (as to the page numbers  
assigned to the CFA), even after its revelation that it limited the scope of the Records at Issue.  
6. In this regard, the First Applicant notes that the Public Body Initial Submission [2016] incorporates  
its Initial Submission [2014] in which it represented that pages 551-564 contain the CFA and  
confirms its intention to continue to rely on that representation. The First Applicant repeats its  
earlier request to the Public Body that it confirm whether its understanding is incorrect and that if  
so, the Public Body, forthwith, identify the pages in its Amended Index of Records that contain the  
CFA.  
Submission: The Public Body’s Inadmissible Evidence and Incorrect Statements  
7. The First Applicant submits that the Public Body Initial Submission [2016] improperly relies on  
inadmissible evidence and repeats the Public Body’s incorrect assertion that the First Applicant  
“agreed” to limit the scope of the Inquiry to records created on or before December 31, 2010.  
17  
8. In this regard, the First Applicant submits that the Public Body improperly relies on opinion  
evidence from a third party, which has been found to be inadmissible in this Inquiry in a  
Decision/Order by the External Adjudicator, which has not been overturned by a court on judicial  
review.  
9. In this regard, the First Applicant submits that the Public Body continues to incorrectly assert that  
it agreed, which it did not, to limit the time frame of its access request. Accordingly, the First  
Applicant asserts “…the Public Body has not “extend[ed] the time frame of the record request to  
“accommodate” the applicants’ request.”  
[NOTE: With respect to paras. 5-9 of the First Applicant Initial Submission [2016] above, I repeat,  
by correspondence dated November 16, 2016, I advised the parties that issue regarding the  
Public Body unilaterally changing the scope of the access requests would not be considered  
during this phase of the Inquiry, as the matter was being dealt with in another forum.]  
Submission: Discretionary Nature of Allegedly Applicable Exemptions under the Act  
10. The First Applicant argues that the Public Body, in submitting that the burden of proof for  
establishing privilege cannot be higher under the FOIP Act than in provincial civil litigation, has  
ignored a critical distinction. That distinction is that in civil matters the only issue with respect to  
privilege is whether it has been properly claimed and/or whether it has been waived.  
11. This, the First Applicant argues, is in contrast to the FOIP Act, which involves a two-step test  
when claiming discretionary exemptions such as solicitor-client and litigation privilege, as follows:  
“(i) whether the Public Body properly claimed the privilege; and (ii) whether the Public Body’s  
exercise of discretion was reasonable.” [citing Ontario (Public Safety and Security) v Criminal  
Lawyers’ Association, 2010 SCC 23 [Ontario (Public Safety and Security], at para. 68]  
12. Relying on s. 71(1) of the FOIP Act and the Blank decision in the Supreme Court of Canada, the  
First Applicant submits that the burden of proof rests with the Public Body to establish both the  
proper application of the privilege and the reasonableness of its assertion and, contrary to the  
Public Body’s claim, there is a higher standard to withhold records on the grounds of privilege  
under the FOIP Act.  
The CFA is not at Issue in this Stage of the Inquiry  
13. In its Initial Submission [2016] the Public Body identifies the CFA as an example of a record in the  
Amended Index of the June 10, 2016 Records at Issue that if disclosed would harm the business  
interests of a third party. This is despite the fact that the First Applicant’s understanding is that  
the CFA is not a Record at Issue at this stage and the Public Body continues to represent the  
CFA is at pages 551-564.  
[NOTE: Pages 551-564 confirmed by the Public Body to be the CFA are not listed as pages of the  
records in the Amended Index for the June 10, 2016 Records at Issue.]  
14. The First Applicant notes that the Public Body has not identified the s. 16 exemption as a basis  
for withholding disclosure of the CFA in the exception sheet attached to the FOIP Director’s  
Affidavit, the Index of Records with its Initial Submission [2014] or its (amended) Index of Records  
provided September 30, 2016.  
15. The First Applicant submits that ‘bootstrapping’ of this nature in legal argument should not be  
permitted especially where the list of exceptions attached as an exhibit to the FOIP Director’s  
Affidavit, wherein s/he swears s/he has reviewed the responsive records while being “cognizant  
of possible legal privilege and other privilege as well as other exemptions” omits reliance on s.  
16 of the FOIP Act. [Emphasis in original] The First Applicant states at the very least the Public  
Body’s “bootstrapping should result in an adverse inference about the reliability of the Public  
Body’s Amended Index of Records.”  
18  
The Public Interest  
16. The First Applicant submits that the Public Body’s interpretation of the public interest override in  
s. 32 of the FOIP Act in its Initial Submission [2014], where it limits its application to an urgent  
need to disclose information about an emergency involving a risk of significant harm to the  
environment or health and safety of the public, is flawed.  
17. It is, the First Applicant argues, flawed for at least the following reasons:  
1. First, it deprives s. 32(1)(b) “information the disclosure of which is, for any other reason,  
clearly in the public interest” of any meaning whatsoever. That is, it restricts the scope of s.  
32 of the FOIP Act according to the Public Body to the environment and health and safety  
that are dealt with in s. 32(1)(a) of the FOIP Act, an interpretation that is contrary to the “well  
accepted principle of statutory interpretation that no legislative provision should be interpreted  
so as to render it mere surplusage.” [citing R v Proulx, [2000] 1 SCR 61, at para. 28]  
2. The First Applicant goes on to argue that a decision relied on by the Public Body contradicts  
the Public Body’s own interpretation regarding s. 32(1)(b) when the decision states:  
In my view, the sense of urgency required to engage section 32(1)(b) does not have to  
meet the same threshold as for section 32(1)(a).  
…
Still, there remains a high threshold in order to trigger section 32(1)(b). While the  
circumstances in question need not amount to an emergency - in the same sense as an  
emergency arising from a risk of significant harm to health, safety or the  
environment - the circumstances must be such that disclosure of information is “clearly”  
in the public interest. [Order F2012-14, paras. 191-192]  
[Emphasis in original]  
3. Second, its reliance on Lizotte is misguided as that case does not interpret disclosure in the  
context of an access request under legislation that includes a public interest override; and  
4. Third, it improperly shifts the burden to an applicant to establish disclosure is in the public  
interest when in fact a public body is in the best position to demonstrate why disclosure of the  
June 10, 2016 Records at Issue is not in the public interest.  
Conclusion  
18. In the last paragraph of its Initial Submission [2016], the First Applicant provides a summary,  
which reads as follows:  
The Public Body’s Initial Submission [2016] relies on inadmissible evidence, ignores the  
discretionary nature of the privilege exemptions, improperly bootstraps its refusals and  
incorrectly narrows the public interest override. Its submissions on these issues should  
be refused.  
19. There is one attachment to the First Applicant’s Initial Submission [2016]: case law. In addition,  
the First Applicant’s submission cites and refers to other exhibits from its Initial Submission [2014]  
and correspondence in footnotes included in the submissions.  
D.  
[para 21]  
PUBLIC BODY REPLY [2016]  
The following is a summary of the Public Body Rebuttal [Reply] Submission [2016] with  
respect to the June 10, 2016 Records at Issue, which was provided on January 30, 2017:  
19  
Introduction  
1. The Public Body states its response is provided in accordance with instructions set out by the  
External Adjudicator.  
Scope of this Inquiry  
2. The Public Body states as a general response to both Applicants, it notes this phase of the  
Inquiry relates only to the June 10, 2016 Records and the issue about whether or not the Public  
Body properly removed some information on the basis that it was Non-Responsive was an issue  
specifically excluded from the scope of this phase of the Inquiry. In the last paragraph of its  
Reply Submission, the Public Body repeats this point a second time.  
[NOTE: To be clear, the question of whether or not the Public Body properly excluded some  
information is not at issue in this phase of the Inquiry. The information itself, however, previously  
designated Non-Responsive that accounts for 20 pages of the June 10, 2016 Records at Issue  
with newly applied exceptions is the subject of this phase of the Inquiry.]  
Reply to Second Applicant Initial Submission  
3. Noting the Second Applicant has restricted its submissions to the issue of privilege, the Public  
Body claims it has identified the June 10, 2016 Records at Issue that are privileged and provided  
sworn evidence in support.  
[NOTE: It is important to point out that the only sworn evidence provided by the Public Body are  
the FOIP Director’s and FOIP Advisor’s respective affidavits that formed part of the Public Body  
Initial Submission [2014]. No affidavits were provided with respect to the June 10, 2016 Records  
at Issue, particularly the 20 new pages of the responsive records that were designated Non-  
Responsive at the time the 2014 affidavits were sworn. The Public Body now claims s. 27 for all  
20 pages of the additional responsive records. No affidavit evidence was provided with respect to  
legal privilege over these new responsive records, despite my request to the Public Body to  
provide affidavits regarding the claim of legal privilege during this phase of the Inquiry.]  
4. The Public Body submits that the Second Applicant has not presented any evidence that it has  
incorrectly asserted privilege, citing the U of C case, since, it submits, there is no such evidence.  
[NOTE: This response from the Public Body appears to suggest that the onus is on the Applicant  
to prove that the Public Body has incorrectly claimed legal privilege rather focussing on its own  
burden to prove the Applicants have no right of access under s. 71(1) of the FOIP Act.]  
5. The Public Body asserts that the Second Applicant’s reference to the Privilege Practice Note is  
irrelevant because it was released subsequent to the collection and processing of the Records at  
Issue and was released (by the Commissioner’s Office) subsequent to direction from the External  
Adjudicator.  
[NOTE: The Public Body’s assertion fails to acknowledge the dates of what has transpired with  
respect to the June 10, 2016 Records at Issue. While the access to information decision was  
made in 2012, it only involved the collection and processing of 15 pages (18 pages prior to the  
release of 2 pages in September 2016 and 1 page in June 2017). The remaining 20 pages  
originally designated as Non-Responsive (including the 3 released pages) were collected in June  
2016 and processed in or before December 2016 when the designation of Non-Responsive was  
replaced with the exceptions the Public Body was claiming for those pages. The direction from  
the External Adjudicator was issued prior to that on November 16, 2016. Public Body Initial  
Submission [2016] was provided on December 14, 2016 prior to the Privilege Practice Note  
issued December 15, 2016 following the U of C and the Lizotte decisions both issued by the  
Supreme Court of Canada on November 25, 2016. The Second Applicant Initial Submission  
[2016] to which the Public Body is responding was provided on January 5, 2017. The Public  
Body Rebuttal [Reply] Submission [2016] was provided on January 30, 2017. Its right to reply  
gave the Public Body the opportunity to consider the Privilege Practice Note, as argued by the  
both Applicants, and a potentially opportune time to provide the kind of direct evidence with  
respect to legal privilege that I had already requested in my directions to the parties issued on  
November 16, 2016.  
20  
6. The Public Body submits that the “Protocol” is not law but only a guide, citing the U of C case at  
para. 69 and, regardless, the External Adjudicator can make her own determination about  
privilege by examining the Records at Issue provided to her.  
[NOTE: The “Protocol” referred to in the Public Body’s submission is the Solicitor-Client Privilege  
Adjudication Protocol developed by the Commissioner’s Office; it has been replaced by the  
Privilege Practice Note.]  
7. The Public Body repeats its assertion that the issue of the time frame (with respect to the access  
requests) is not in the scope of this phase of the Inquiry.  
[NOTE: The Public Body refers to the fact that the scope is not at issue. Further to my November  
16, 2016 correspondence to the parties, I advised that Issue #7 in the Inquiry has been referred  
to another forum. For the purpose of this phase of the Inquiry, no finding will be made regarding  
Issue #7.]  
Reply to First Applicant Submission  
8. The Public Body states that the First Applicant Submission refers to the CFA, which is not in the  
June 10, 2016 Records at Issue and thus is not at issue in the Inquiry.  
[NOTE: The Public Body refers to the fact that because the CFA is not found within the June 10,  
2016 Records at Issue, it is not at issue. The Public Body did, however, refer to the CFA in its  
own Initial Submission [2016] as part of its argument under s. 16. To be clear, the Public Body  
has confirmed that the CFA is within the Records at Issue at pages 551-564 and, therefore, while  
they are not being considered during this phase of the Inquiry with respect to the June 10, 2016  
Records at Issue, the CFA pages will form part of the Records at Issue in the main Inquiry.]  
9. The Public Body submits the First Applicant has not provided any evidence it has incorrectly  
asserted solicitor-client privilege and regardless the External Adjudicator can make her own  
determination by examining the Records at Issue, which have been provided to her.  
[NOTE: Once again this response from the Public Body appears to suggest that the onus is on  
the Applicant to prove that the Public Body has incorrectly claimed legal privilege rather focussing  
on its own burden to prove the Applicants have no right of access under s. 71(1) of the FOIP Act.]  
10. As s. 16 of the FOIP Act is a mandatory exception, records to which it applies must not be  
disclosed. The Public Body submits that it does not matter if the exception has been previously  
referred to by the Public Body; it is for the External Adjudicator to determine whether s. 16  
applies.  
[NOTE: In its correspondence dated January 19, 2017 providing another updated Index of  
Records in the main Inquiry (not correspondence or a submission specifically about the June 10,  
2016 Records at Issue), the Public Body stated: “In the course of its review after the U of C case,  
the Ministry noted that names of lawyers (or law firms) that submitted an expression of interest  
had previously been severed under section 17. If you find that section 17 does not apply in these  
circumstances, the Ministry submits that section 16 also applies. Disclosing the name of lawyers  
or law firms that submitted an expression of interest would reveal commercial information that  
was supplied in confidence.” The Public Body did not referentially incorporate the  
correspondence dated January 19, 2017 as part of its submissions in this phase of the Inquiry.  
Section 17 does not form part of the Public Body Initial Submission [2016]. The s. 17 exception is  
not an issue in this phase of the Inquiry as it has not been claimed for any of the pages of the  
June 10, 2016 Records at Issue. On comparing the original Index that accompanied the Public  
Body’s access to information decisions with the Amended Index for the June 10, 2016, there is no  
example of a page of the records where the Public Body had relied on s. 17 but is now claiming s.  
16. In fact, none of the original pages withheld in whole or in part under s. 17 form part of this  
phase of the Inquiry. Additionally, s. 17 has never been applied to any of the pages in the original  
or Amended June 10, 2016 Index of Records so the suggestion by the Public Body that where it  
has claimed s. 17, should it not apply, then I am to apply s. 16, is a non-issue during this phase of  
the Inquiry.]  
21  
11. In responding to the issue of s. 32 of the FOIP Act, the Public Body submits that rather than  
reading the words in isolation, all parts of it must be read in the context of the statute and the  
common law as a whole in a purposive manner. Thus, it submits, using the proper approach to  
statutory interpretation, it is clear that all parts of s. 32 only apply in emergent matters where  
delay would affect public health or safety, which is not the case here.  
12. The Public Body submits, contrary to the First Applicant Initial Submission [2016], an applicant  
bears the burden of proof to establish the pre-conditions of s. 32 of the FOIP Act have been met,  
a burden that the First Applicant has not discharged.  
13. The Public Body states that neither of the Applicants have provided any evidence that there is  
clearly a matter of public interest that would compel the Public Body to override its privacy rights  
and release the June 10, 2016 Records at Issue “without delay.”  
[NOTE: The Public Body does not make it clear what privacy rights it is referring to in this portion  
of its Reply Submission.]  
E.  
[para 22]  
PRIOR SUBMISSIONS OF THE PARTIES  
When this Inquiry began, prior to the First Applicant raising the PEO that resulted in an  
exchange of submissions about the PEO culminating in my previous Decision/Order, the parties had filed  
their respective Initial Submission [2014] with me. In their respective Initial Submission [2016] during this  
phase of the Inquiry, the Public Body and both Applicants referentially incorporated or referred to their  
prior submissions as follows:  
1. First Applicant: Referentially incorporated July 9, 2014 and September 23, 2016.  
2. Second Applicant: Made reference to his/her previous submissions without indicating specifically  
that it was his/her intention to incorporate them as part of his/her Initial Submission [2016]. I am  
treating his/her references to his/her past submissions, however, as part of his/her Initial  
Submission [2016] in this phase of the Inquiry.  
3. Public Body: Referentially incorporated August 2, 2014, September 7, 2016, and September 19,  
2016.  
First Applicant  
[para 23]  
In its Initial Submission [2016], the First Applicant referentially incorporated its Initial  
Submission [2014] dated July 9, 2014. I have re-examined the First Applicant’s Initial Submission [2014]  
and its September 23, 2016 correspondence in relation to how these relate to the June 10, 2016 Records  
at Issue, a summary of which follows:  
1. In its Initial Submission [2014], the First Applicant focussed the majority of its arguments on the  
Public Body’s decision with respect to the CFA. While the pages reported by the Public Body to  
be the CFA are not part of this phase of the Inquiry, the First Applicant Initial Submission [2014]  
refers to the public discourse that ensued after the choice of counsel was made public. In this  
regard, paras. 29-51 are considered relevant. These have been considered in relation to the  
application of s. 32 of the FOIP Act. In addition, the evidence submitted by the First Applicant at  
para. 31 has been considered in relation to the application of the s. 16 exception. Also, the First  
Applicant’s earlier submission with respect to the application of discretionary exceptions, legal  
privilege, public interest at paras. 29-51, 52-59, 68-71, 74, 83-87, 94-98, and 99-104 have been  
considered.  
2. In its September 23, 2016 correspondence, the First Applicant reiterates its position vis a vis the  
Public Body unilaterally changing the scope of the access request. With respect to the latter, it  
provided direct evidence from a Public Body FOIP employee demonstrating that the CFA was  
included in the records at pages 551-564.  
22  
[NOTE: The submissions in this correspondence do not relate to the issues in this phase of the  
Inquiry and are therefore not relevant and will not be considered.]  
To the extent the above are relevant to the Issues listed in para. 17 of this Order, these submissions have  
been considered and form part of this phase of the Inquiry.  
Second Applicant  
[para 24]  
In his/her Initial Submission [2016], the Second Applicant referred to some of his/her  
Initial Submission [2014], a summary of which follows:  
1. The Second Applicant states that in his/her previous submission s/he acknowledged that the  
Public Body was not required to provide more detailed information with respect to privilege under  
the Adjudication Practice Note though it was recommended as best practice. This s/he submits  
changed under the recent Privilege Practice Note issued (by the Commissioner’s Office)  
subsequent to the recent Supreme Court of Canada cases.  
[NOTE: The Adjudication Practice Note 1 provides guidance on preparing submissions, records  
and indexes for inquiries. The Privilege Practice Note, which replaced the Solicitor-Client  
Privilege Adjudication Protocol in December 2016, is for use in reviews and inquiries in which a  
public body has claimed solicitor-client privilege or litigation privilege to withhold information in  
records responsive to an access request. It is meant to ensure sufficient evidence is provided to  
support the claim of privilege especially in cases where the relevant records have not been  
provided to the Commissioner’s Office as evidence.]  
2. The Second Applicant states that in his/her previous submission s/he argued that the Public  
Body’s Index of Records did not provide sufficient information for the Adjudicator to determine if  
legal privilege or any other exception cited has been properly applied.  
3. The Second Applicant states that in his/her previous submission s/he pointed out that the Public  
Body chose to release a memorandum dated December 14, 2010 from the then Minister of  
Justice and Solicitor General while other documents with similar information were completely  
withheld by applying either solicitor-client or litigation privilege.  
4. In his/her Initial Submission [2014], the Second Applicant provided submissions with respect to s.  
32 and the extent to which the public would be clearly interested to know if the tobacco litigation  
was in its best interest, and, with respect to s. 16, the extent to which the government had already  
released economic information about a third party and the Public Body’s failure to provide  
evidence of probable harm. Where the submissions relate to the CFA, these have not been  
considered.  
To the extent the above are relevant to the Issues listed in para. 17 of this Order, these submissions have  
been considered and form part of this phase of the Inquiry.  
Public Body  
[para 25]  
In its Initial Submission [2016], the Public Body listed evidence it was relying on during  
this phase of the Inquiry that included its Initial Submission [2014] dated August 6, 2014 and  
correspondence dated September 7, 2016 and September 19, 2016. I have re-examined these in relation  
to how these relate to the June 10, 2016 Records at Issue, a summary of which follows:  
1. In its Initial Submission [2014], the Public Body provided submissions on all the issues identified  
in the Notice of Inquiry sent to all parties in 2014. Some of these are not relevant in this phase of  
the Inquiry as they relate to exceptions which are not presently at issue. The Public Body has  
inter-woven reference to the CFA throughout these submissions, the pages for which are not at  
issue at this time. I am accepting that some of what is contained in the Initial Submission [2014]  
can be applied to the June 10, 2016 Records at Issue where they address the issues and  
23  
exceptions relevant to the pages in this phase of the Inquiry. On that basis, I have considered  
paras. 1-28 and 35-50. The following portions of the Public Body Initial Submission [2014] are  
not relevant at this phase and have not been considered: paras. 29-34 [waiver], paras. 51-55 [s.  
25 exception], paras. 60-62 [s. 17 invasion of privacy], paras. 63-64 [inter-governmental  
relations]. If the arguments advanced in any of the paragraphs rely primarily on the CFA as their  
basis, I will, instead, rely on the Public Body Initial Submission [2016] as the CFA is not at issue  
at this time.  
2. In its Initial Submission [2014], the Public Body produced two affidavits from FOIP officials within  
Alberta Justice and Solicitor General. The FOIP Advisor affiant states: “I do verily believe that the  
Privileged Records involve the giving or seeking of legal advice.” S/he goes on to state: “I am  
advised by …, legal counsel for the Public Body, and do verily believe that these records are  
subject to solicitor-client privilege and/or litigation privilege.”  
3. The second affiant was the FOIP Director who again devotes most of his/her evidence to legal  
privilege and, after attesting to reviewing the responsive records, states: “I found that the large  
majority are privileged” listing some of the key indicators s/he considered, which s/he lists as  
follows:  
Records, e-mails or other correspondence to or from Alberta Health lawyers, and lawyers at  
Alberta Justice and Solicitor General;  
Records are attached to correspondence to or from a lawyer;  
The record is a communication between employees of a public body, quoting legal advice  
given by a lawyer;  
The record is a note documenting legal advice given by lawyer; and  
The information relates to an existing or contemplated lawsuit.  
[NOTE: These categories of documents (more than “indicators”) may apply to the Records at  
Issue in the main Inquiry, in other words, some of the responsive records at the time the affidavit  
was sworn in 2014. But in the case of the records being reviewed during this phase of the  
Inquiry, there is, in my opinion, only one possible match to the categories listed above in the  
information on the pages of the June 10, 2016 Records: “the information relates to an existing or  
contemplated lawsuit.”]  
4. The FOIP Director goes on to discuss the CFA over which s/he states the Public Body has not  
waived privilege; these pages are not presently at issue. There is one paragraph devoted to s. 24  
in the affidavit but it simply recites the language of the statute.  
[NOTE: This affidavit evidence is of minimal use for two reasons: one, it relates to the whole of  
the Records at Issue (at that point a total of 564 pages) and two, it does not provide the kind of  
evidence that would typically be required to demonstrate how the exceptions apply specifically to  
the information in the June 10, 2016 Records at Issue. In my November 16, 2016  
correspondence to the parties I specifically said the following to the Public Body: “In the case of  
where the s. 27 legal privilege exception has been claimed over the June 10, 2016 Records at  
Issue, it will be necessary for the Public Body to provide, as part of its Initial Submissions [2016],  
an affidavit from the individual(s) with direct knowledge of the Records [the lawyer or lawyers who  
were involved] attesting to their personal knowledge that the s. 27 legal privilege exception  
applies.” The Public Body did not comply with this request.]  
5. There was no effort on the part of the Public Body in its Initial Submission [2016] to correct this  
absence of evidence with respect to the specific 35 pages of the June 10, 2016 Records at Issue  
regarding the claimed exceptions: s. 16, s. 24, and s. 27, which are the only exceptions at issue  
during this phase of the Inquiry.  
24  
6. In its correspondence dated September 7, 2016, the Public Body repeats its position that the  
issue of the exclusion of drafts and the access request cut-off date are no longer at issue. The  
letter goes on to make submissions with respect to whether the Public Body has waived privilege;  
waiver is not at issue at this stage of the Inquiry. The final paragraph of the letter provides a  
submission with respect to the application of s. 32(1) of the FOIP Act. It submits that s. 32 deals  
with public health and safety and other emergencies, which the present situation does not  
involve. The Public Body submits that the Ministry’s decision whether to waive solicitor-client or  
any other legal privilege necessarily takes into account the public interest; this case involves  
records about significant litigation and it is not in the public interest to do anything which might  
affect the litigation.  
7. The Public Body lists its September 19, 2016 correspondence as containing submissions it  
wanted incorporated as part of its Initial Submission [2016] during this phase of the Inquiry. It is  
somewhat confusing as to why this letter has been included as it deals almost exclusively with  
questions I asked the Public Body to answer with respect to the exclusion of drafts and the limit it  
imposed on the time frame of the access requests, which issues the Public Body knows do not  
form part of this phase of the Inquiry and is aware are being dealt with in another forum. The  
Public Body cannot be confused as it is adamant in its Reply Submission [2016] that these issues  
are not within the scope of this phase of the Inquiry. The only portion of the September 19, 2016  
letter that could be relevant at this phase can be found on page 5 of the letter referring to s. 32(1)  
of the FOIP Act. The Public Body admits, however, this is a reiteration of its earlier submission  
with respect to public interest contained in its September 7, 2016 letter discussed above. It is  
unnecessary and would be inappropriate for me to consider anything other than its reiteration with  
respect to public interest, which can be found in the Public Body’s September 7, 2016  
correspondence, during this phase of the Inquiry.  
To the extent the above are relevant to the Issues listed in para. 17 of this Order, these submissions have  
been considered and form part of this phase of the Inquiry.  
V.  
DISCUSSION OF ISSUES  
ISSUE #1: Whether the Public Body properly relied on and applied the s. 27 exceptions,  
specifically s. 27(1)(a), s. 27(1)(b)(ii), and s. 27(1)(c)(ii) of the FOIP Act, to the information in the  
June 10, 2016 Records at Issue.  
A. Section 27(1)(a)  
[para 26]  
Section 27(1)(a) [legal privilege] has been claimed for 33 of the total 35 pages of the  
June 10, 2016 Records at Issue [98, 99-102, 103-107, 113-119, 129, 258-261, 262-264, 265-268 and  
645-648]. Section 27(1)(a) has been claimed by the Public Body for all of the June 10, 2016 Records at  
Issue except 2 pages [210, 211]. Where the Public Body establishes that it has properly relied on and  
properly applied the legal privilege exception in s. 27(1)(a) applies to these 33 pages of the records and  
that it has properly exercised its discretion to refuse access, it would be unnecessary for me to go on to  
consider the other discretionary or mandatory exceptions claimed for 33 pages of the records, therefore,  
s. 27 will be dealt with first. Under s. 71(1) of the FOIP Act, the Public Body has the burden to prove the  
Applicants have no right of access to the information that it withheld under s. 27(1)(a).  
[para 27]  
The exception in s. 27(1)(a) of the FOIP Act reads as follows:  
27(1) The head of a public body may refuse to disclose to an applicant  
(a) information that is subject to any type of legal privilege, including solicitor-client privilege  
or parliamentary privilege,  
25  
[para 28]  
As I emphasized in my previous Decision/Order, there is no doubt that legal privilege is of  
fundamental importance to our justice system, a “privilege (that) must be sedulously protected.” [Alberta v.  
Suncor Inc., 2017 ABCA 221 [Suncor].  
Solicitor-client privilege is fundamental to the proper functioning of our legal system.  
...  
[S]olicitor-client privilege must be as close to absolute as possible to ensure public  
confidence and retain relevance. As such, it will only yield in certain clearly defined  
circumstances, and does not involve a balancing of interests on a case-by case basis...It is in  
the public interest that this free flow of legal advice be encouraged. Without it, access to justice  
and the quality of justice in this country would be severely compromised. The privilege  
belongs to the client not the lawyer. In Andrews v Law Society of British Columbia, [1989] 1  
S.C.R. 143, at p. 188, McIntyre J. affirmed yet again that the Court will not permit a solicitor  
to disclose a client's confidence.  
[Canada (Privacy Commissioner) v Blood Tribe Department of Health, [2008] 2 SCR 574, at  
para. 9 citing R. v McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, at para. 35, quoted with  
approval in Lavallee, Rackel & Heintz v Canada (Attorney General), [2002] 3 S.C.R. 209, 2002  
SCC 61, at para. 36]  
[Decision/Order, at para. 77; See also Suncor, at para. 22]  
[Emphasis in original]  
[para 29]  
Distinguishing the nature of the solicitor-client exception from other exceptions available  
to public bodies under access to information legislation, the Supreme Court of Canada characterized it as  
close to absolute as possible when it stated:  
We view the records falling under the s. 19 solicitor-client exemption differently. Under the  
established rules on solicitor-client privilege, and based on the facts and interests at stake before  
us, it is difficult to see how these records could have been disclosed. Indeed, Major J., speaking  
for this Court in McClure, stressed the categorical nature of the privilege:  
. . . solicitor-client privilege must be as close to absolute as possible to ensure public  
confidence and retain relevance. As such, it will only yield in certain clearly defined  
circumstances, and does not involve a balancing of interests on a case-by-case basis.  
[Emphasis added; para. 35.]  
(See also Goodis, at paras. 15-17 and Blood Tribe, at paras. 9-11.)  
Accordingly, we would uphold the Commissioner’s decision on the s. 19 claim.  
[Ontario (Public Safety and Security), at para. 75; See also R. v. McClure, 2001 SCC 14, at  
para. 35]  
[Emphasis added]  
[para 30]  
Since my Decision/Order in 2014, the Supreme Court of Canada has had the opportunity  
to consider the issue of legal privilege in two instructive judgments that once again make the sanctity of  
legal privilege patently clear. The first of these cases dealt with solicitor-client privilege in which the  
Supreme Court of Canada stated:  
The importance of solicitor-client privilege to our justice system cannot be overstated. It is a legal  
privilege concerned with the protection of a relationship that has a central importance to the legal  
system as a whole. In R. v. Gruenke, [1991] 3 S.C.R. 263, Chief Justice Lamer described its  
rationale as follows:  
The prima facie protection for solicitor-client communications is based on the fact that the  
relationship and the communications between solicitor and client are essential to the  
effective operation of the legal system. Such communications are inextricably linked with  
the very system which desires the disclosure of the communication ... [Emphasis added;  
p. 289.]  
26  
[U of C, at para. 26]  
[Emphasis underlining in original]  
[para 31]  
The second recent decision by the Supreme Court of Canada lays out the characteristics  
and the importance of litigation privilege, also a part of the s. 27(1)(a) legal privilege exception, when it  
said the following:  
Litigation privilege gives rise to an immunity from disclosure for documents and communications  
whose dominant purpose is preparation for litigation. The classic examples of items to which this  
privilege applies are the lawyer’s file and oral or written communications between a lawyer and  
third parties, such as witnesses or experts: J.-C. Royer and S. Lavallée, La preuve civile (4th ed.  
2008), at pp. 1009-10.  
…
However, since Blank was rendered in 2006, it has been settled law that solicitor-client privilege  
and litigation privilege are distinguishable. In Blank, the Court stated that “[t]hey often co-exist  
and [that] one is sometimes mistakenly called by the other’s name, but [that] they are not  
coterminous in space, time or meaning” (para. 1). It identified the following differences between  
them:  
The purpose of solicitor-client privilege is to protect a relationship, while that of  
litigation privilege is to ensure the efficacy of the adversarial process (para. 27);  
Solicitor-client privilege is permanent, whereas litigation privilege is temporary and  
lapses when the litigation ends (paras. 34 and 36);  
Litigation privilege applies to unrepresented parties, even where there is no need to  
protect access to legal services (para. 32);  
Litigation privilege applies to non-confidential documents (para. 28), quoting R. J.  
Sharpe, “Claiming Privilege in the Discovery Process”, in Special Lectures in the Law  
Society of Upper Canada (1984), 163, at PP. 164-65);  
Litigation privilege is not directed at communications between solicitors and clients as  
such (para. 27).  
The Court also stated that litigation privilege, “unlike the solicitor-client privilege, is neither  
absolute in scope nor permanent in duration” (Blank, at para. 37). Moreover, the Court confirmed  
that only those documents whose “dominant purpose” is litigation (and not those for which  
litigation is a “substantial purpose”) are covered by the privilege (para. 60). It noted that the  
concept of “related litigation”, which concerns different proceedings that are brought after the  
litigation that gave rise to the privilege, may extend the privilege’s effect (paras. 38-41).  
While it is true that in Blank, the Court thus identified clear differences between litigation privilege  
and solicitor-client privilege, it also recognized that they have some characteristics in common.  
For instance, it noted that the two privileges “serve a common cause: The secure and effective  
administration of justice according to law” (para. 31). More specifically, litigation privilege serves  
that cause by “ensur[ing] the efficacy of the adversarial process” (para. 27) and maintaining a  
“protected area to facilitate investigation and preparation of a case for trial by the adversarial  
advocate” (para. 40, quoting Sharpe, at p. 165).  
[Lizotte, at paras.19, 22-24; See also Blank, at paras. 27, 31, 37-41, 60].  
[para 32]  
I begin by looking at what evidence the Public Body has provided to support its reliance  
on s. 27. The Public Body has provided limited evidence to support its characterization of the information  
as falling within the meaning of legal privilege. The evidence relied upon, provided in August 2014, is  
from two affiants: FOIP employees neither of whom are identified as lawyers. In the case of the first  
27  
affiant, the FOIP Advisor, s/he attests to relying on legal advice from a staff lawyer that the information  
was privileged, when s/he states, “I am advised by [name], legal counsel for the Public Body, and do  
verily believe that these records are subject to solicitor-client privilege and/or litigation privilege.” The staff  
lawyer referred to in the affidavit is not identified as a party to or participant in or author of any of the  
information in the June 10, 2016 Records at Issue. Consequently, the evidence from the FOIP Advisor is  
of limited assistance as it amounts to hearsay.  
[para 33]  
The second affiant, the FOIP Director, after listing his/her understanding of what  
constitutes litigation privilege, goes on to say, “It is my understanding that litigation privilege applies where  
documents were created for the dominant purpose of furthering litigation, whether existing or  
contemplated. It was on this basis that I reviewed the Responsive Records. From my review of the  
Responsive Records, I found that the large majority are privileged.” The affiant lists key indicators that  
describe categories of documents. The FOIP Director also states what is his/her “understanding” of what  
legal privilege is and that from his/her review the privileged records were meant to be confidential.  
Suncor cannot, merely by having legal counsel declare that an investigation has  
commenced, throw a blanket over all materials “created and/or collected during the  
internal investigation” or “derived from” the internal investigation, and thereby extend  
solicitor-client privilege or litigation privilege over them. This Court stated in ShawCor, at  
para 84, that “[b]ecause the question is the purpose for which the record was originally brought  
into existence, the mere fact that a lawyer became involved is not automatically controlling.” And  
further, at para 87, the Court stated that “the purpose behind the creation of a record does not  
change simply because the record is forwarded to, or through, in-house counsel, or because in-  
house counsel directs that all further investigation records should come to him or her.”  
[Suncor, at para. 34]  
[Emphasis added]  
[para 34]  
It is important to note that the FOIP Director refers to “Responsive Records” in his/her  
affidavit. This is important because 20 of the 35 pages in the June 10, 2016 Index were designated Non-  
Responsive when they were first provided by the Public Body [99-107, 113-119, 565, 645-648]. It was  
not until December 14, 2016 (part of the Public Body Initial Submission [2016]) that the Public Body  
provided the Amended Index showing it had relied on s. 27 for 20 of the newly added responsive pages of  
the June 10, 2016 Records at Issue. Also, the two affidavits were not specifically about the June 10,  
2016 Records at Issue but were instead with respect to the complete responsive Records at Issue [564  
pages] at the time they were sworn: FOIP Director July 31, 2014 and the FOIP Advisor April 16, 2013.  
Therefore, the FOIP Director’s and the FOIP Advisor’s affidavit evidence would not have included 20 of  
the 35 pages of the June 10, 2016 Records at Issue. Thus, because of all these limitations, the affidavits  
have little evidentiary value in this phase of the Inquiry as they were about the 564 pages of  
“Responsive Records” in the main Inquiry that did not include those designated Non-Responsive, which  
make up 20 of the 35 pages in the June 10, 2016 Records at Issue. There is no reference in either of the  
affidavits to specific pages of the June 10, 2016 Records at Issue and, of course, neither makes any  
reference to any of the Non-Responsive information or the Amended Index.  
[para 35]  
To be fair to the affiants, both of these affidavits were provided as part of the Public Body  
Submission [2014] and were not prepared specifically in relation to the June 10, 2016 Records at Issue.  
In my November 16, 2016 correspondence to the parties providing instructions with respect to this phase  
of the Inquiry, I specifically asked the Public Body to provide an affidavit(s) from a lawyer(s) who was a  
party to the information to which the Public Body had applied the solicitor-client and/or litigation privilege  
exception in the June 10, 2016 Records at Issue, but this evidence was not provided as requested. What  
is the evidentiary burden on a public body to establish solicitor-client privilege? Former Commissioner  
Work answered that question as follows:  
An illustration of the kind of information that will be satisfactory to establish a solicitor-client  
privilege claim is found in Ansell Canada Inc. v. Ions World Corp., [1998] O.J. No. 5034 (Ct. J.). In  
that case, the Court quoted prior cases asserting that a party cannot avoid production by  
giving an “unadorned assertion that the documents are subject to solicitor and client  
28  
privilege”. It said that the degree of detail required “should include the function, role and  
status of the receiver and sender of the documents in question and their relationship to  
the party to the action, the grounds for the claim of privilege, and a description of each  
document consistent with the law which renders it privileged” (paras. 10, 19). See also the  
“Record Form” portion of the Protocol, and accompanying instructions.  
[Decision P2011-D-003, at para. 127]  
[Emphasis added]  
[para 36]  
Despite the sparse evidence, I will consider all of the submissions provided by the Public  
Body and review each piece of information on the pages of records withheld and consider whether the  
Public Body has established that the information severed falls under the s. 27(1)(a), s. 27(1)(b)(ii) and/or  
s. 27(1)(c)(ii) exceptions and/or whether or not the Records themselves reveal that they contain privileged  
information.  
Solicitor-client Privilege  
[para 37]  
Against the backdrop of recent jurisprudence on legal privilege, I turn to the first  
exception in Issue #1: Whether the Public Body properly relied on and applied s. 27(1)(a) of the FOIP Act  
to the information in the June 10, 2016 Records at Issue. With respect to this first issue, I begin by asking  
two questions. The first question is whether or not the Public Body has properly relied on the s. 27(1)(a)  
legal privilege exception. In other words, whether the information contained in the pages of the June 10,  
2016 Records at Issue meets the definition of solicitor-client or litigation privilege. I begin with solicitor-  
client privilege.  
As discussed above, the “head” making a decision under ss. 14 and 19 of the Act has a discretion  
whether to order disclosure or not. This discretion is to be exercised with respect to the purpose  
of the exemption at issue and all other relevant interests and considerations, on the basis of the  
facts and circumstances of the particular case. The decision involves two steps. First, the head  
must determine whether the exemption applies. If it does, the head must go on to ask  
whether, having regard to all relevant interests, including the public interest in disclosure,  
disclosure should be made.  
[Ontario (Public Safety and Security), at para. 66]  
[Emphasis added]  
[para 38]  
As stated above, pursuant to s. 71(1) of the FOIP Act, the Public Body has the burden to  
prove the Applicants have no right of access to the information that it withheld under s. 27(1)(a). The  
burden rests with the Public Body, therefore, to demonstrate, on a balance of probabilities, one or both of  
the legal exceptions apply:  
The Minister asserting the exemption has the burden of demonstrating that it applies. Any  
decision made by a Minister is subject to review by the Commissioner.  
[Ontario (Public Safety and Security), at para. 23]  
[para 39]  
In addressing the first question, I conducted a line-by-line review of the 33 pages of the  
June 10, 2016 Records at Issue where s. 27(1)(a) has been relied on, looking for any information that  
meets the definition of solicitor-client privilege.  
However, for that information to fall within solicitor-client privilege, it still must meet the Solosky  
test. This is also consistent with a quote from Canada (National Revenue) v. Newport Pacific  
Financial Group SA, 2010 ABQB 568, cited by the Public Body: “Solicitor client privilege must  
be a communication between a lawyer and his or her client, or part of the lawyer’s work  
product in the giving of legal advice” (my emphasis).  
[Order F2016-31, at para. 43]  
[Emphasis underlining in original; Other emphasis added]  
29  
[para 40]  
In reviewing the 33 pages of records, I have relied on the Solosky test for making a  
determination about the applicability of solicitor-client privilege, as laid out by Justice Dickson (as he then  
was) in the Supreme Court of Canada:  
...privilege can only be claimed document by document, with each document being required to  
meet the criteria for the privilege —(i) a communication between solicitor and client; (ii)  
which entails the seeking or giving of legal advice; and (iii) which is intended to be  
confidential by the parties.  
[Solosky v. The Queen, [1980] 1 SCR 821, at p. 837]  
[Emphasis added]  
[para 41]  
The question to be answered is: does some or all the information on the 33 pages of the  
June 10, 2016 Records at Issue meet all of the Solosky criteria? One of the three essential Solosky  
criteria is whether the pages of Records at Issue contain anything that falls within the definition of “legal  
advice” or is information that is part of a continuum of communicating for the purpose of obtaining legal  
advice.  
As stated in Order F2009-018 (at paragraph 41):  
Legal advice means a legal opinion about a legal issue, and a recommended course of  
action, based on legal considerations, regarding a matter with legal implications (Order  
96-017 at para. 23; Order F2007-013 at para. 73). The test for legal advice is satisfied  
where the person seeking advice has a reasonable concern that a particular decision or  
course of action may have legal implications, and turns to his or her legal advisor to  
determine what those legal implications might be; legal advice may be about what  
action to take in one’s dealings with someone who is or may in future be on the other side  
of a legal dispute (Order F2004-003 at para. 30).  
[Order F2014-26, at para. 80]  
[Emphasis added]  
[para 42]  
The Applicants’ requests to access information sought disclosure of records about  
requests for proposals, agreements, contingency contracts, the process to award a contract and all  
related information between the Alberta government and the lawyers retained or to be retained with  
respect to lawsuits or prosecutions against tobacco manufacturers for the recovery of tobacco related  
health care costs. The exchanges in some of the emails accompanied by drafts of documents appear to  
be authored by senior government employees or their staff within the Department of Justice and Solicitor  
General. The question is whether legal advice, as defined, is evident in any of these exchanges. In  
referring to a Federal Court of Appeal decision, Alberta Adjudicator Cunningham wrote:  
In the foregoing excerpt, the Federal Court of Appeal proposes the following test to determine  
whether a communication falls within the continuum of legal advice so as to be subject to  
solicitor-client privilege: Does the disclosure of the communication have the potential to  
undercut the purpose behind the privilege - namely, the need for solicitors and their  
clients to freely and candidly exchange information and advice so that clients can know  
their true rights and obligations and act upon them?  
[Order F2014-38, at para. 57; See also Canada (Public Safety and Emergency Preparedness) v.  
Canada (Information Commissioner), 2013 FCA 104]  
[Emphasis added]  
[para 43]  
Some of the pages in the June 10, 2016 Records at Issue reveal communications  
between senior government employees some of whom appear to be lawyers from a designation by their  
name [QC] though there is no indication or evidence that they are acting as an in-house government  
lawyer(s) for the Public Body or in a legal advisory capacity.  
I agree with the Public Body that once it is established that a communication falls within the  
framework of the solicitor-client relationship, the communication is considered privileged.  
30  
In this case, the communications at issue are those between the Public Body’s Freedom of  
Information and Privacy Manager (FOIP Manager) and other employees and lawyers of the  
Public Body. Where government lawyers are concerned, it is not always the case that  
communications involving such lawyers are made within the solicitor-client framework. In  
Pritchard v. Ontario (Human Rights Commission) [2004] 1 SCR 809 [Pritchard], the Supreme  
Court of Canada held as follows (at paragraphs 19 and 20):  
Solicitor-client privilege has been held to arise when in-house government lawyers  
provide legal advice to their client, a government agency: see R. v. Campbell, 1999  
676 (SCC), [1999] 1 S.C.R. 565, at para. 49. In Campbell, the appellant police  
officers sought access to the legal advice provided to the RCMP by the Department of  
Justice and on which the RCMP claimed to have placed good faith reliance. In identifying  
solicitor-client privilege as it applies to government lawyers, Binnie J. compared the  
function of public lawyers in government agencies with corporate in-house counsel. He  
explained that where government lawyers give legal advice to a “client department” that  
traditionally would engage solicitor-client privilege, and the privilege would apply.  
However, like corporate lawyers who also may give advice in an executive or non-legal  
capacity, where government lawyers give policy advice outside the realm of their legal  
responsibilities, such advice is not protected by the privilege.  
Owing to the nature of the work of in-house counsel, often having both legal and non-  
legal responsibilities, each situation must be assessed on a case-by-case basis to  
determine if the circumstances were such that the privilege arose. Whether or not the  
privilege will attach depends on the nature of the relationship, the subject matter of  
the advice, and the circumstances in which it is sought and rendered: Campbell,  
supra, at para. 50. [my emphasis]  
In R. v. Campbell [1999] 1 S.C.R. 565 the Supreme Court of Canada stated:  
It is, of course, not everything done by a government (or other) lawyer that attracts  
solicitor-client privilege. While some of what government lawyers do is  
indistinguishable from the work of private practitioners, they may and frequently  
do have multiple responsibilities including, for example, participation in various  
operating committees of their respective departments. Government lawyers who  
have spent years with a particular client department may be called upon to offer  
policy advice that has nothing to do with their legal training or expertise, but draws  
on departmental know-how. Advice given by lawyers on matters outside the  
solicitor-client relationship is not protected. A comparable range of functions is  
exhibited by salaried corporate counsel employed by business organizations.  
Solicitor-client communications by corporate employees with in-house counsel enjoy the  
privilege, although (as in government) the corporate context creates special problems:  
see, for example, the in-house inquiry into “questionable payments” to foreign  
governments at issue in Upjohn Co. v. United States, 449 U.S. 383 (1981), per Rehnquist  
J. (as he then was), at pp. 394-95. In private practice some lawyers are valued as much  
(or more) for raw business sense as for legal acumen. No solicitor-client privilege  
attaches to advice on purely business matters even where it is provided by a  
lawyer. As Lord Hanworth, M.R., stated in Minter v. Priest, [1929] 1 K.B. 655 (C.A.), at  
pp. 668-69:  
[I]t is not sufficient for the witness to say, “I went to a solicitor’s office.” ...  
Questions are admissible to reveal and determine for what purpose and under  
what circumstances the intending client went to the office.  
31  
Whether or not solicitor-client privilege attaches in any of these situations depends on the  
nature of the relationship, the subject matter of the advice and the circumstances in  
which it is sought and rendered […].  
From the foregoing authorities, I conclude that communications to and from a lawyer that  
are not made in the lawyer’s capacity as a legal advisor, but in another capacity, are not  
protected by solicitor-client privilege. The Courts in Pritchard and in Campbell  
acknowledged that government lawyers may have functions other than providing legal  
advice, even when they draw on their legal expertise.  
[Order F2016-35, at paras. 18-21; presently under Judicial Review]  
[Emphasis underlining in original; Other emphasis added]  
[para 44]  
In this case, some of the email exchanges have attachments and include draft  
documents, the author of which is not identified. The content of the communications do not reveal legal  
advice or any commentary about any legal advice given by anyone. The information contained in the  
records over which solicitor-client privilege has been claimed is information in the form of internal  
communications between employees that does not fit within the definition of legal advice or a continuum  
of communication between a solicitor and client within the framework of solicitor-client privilege.  
The test for establishing the presence of solicitor-client privilege is not a narrow one. In Blood  
Tribe v. Canada (Attorney General), 2010 ABCA 112 the Alberta Court of Appeal determined that  
records need not contain legal advice to be subject to solicitor-client privilege. If the information  
has been communicated so that legal advice could be obtained or given, even though the  
information is not in itself legal advice, the information meets the requirements of “a  
communication made for the purpose of giving or seeking legal advice”. The Court said:  
The appellant also argues that even if some of the documents contain legal advice and so are  
privileged, there is no evidence that all of the documents do so. For example, the appellant  
argues that minutes of meetings, emails and miscellaneous correspondence between Justice  
Canada lawyers and the Department of Indian and Northern Affairs may not contain any actual  
advice, or requests for advice, at all. The solicitor-client privilege is not, however, that narrow. As  
the court stated in Balabel v. Air India, [1988] Ch 317, [1988] 2 All E.R. 246 at p. 254 (C.A.):  
Privilege obviously attaches to a document conveying legal advice from solicitor to client  
and to a specific request from the client for such advice. But it does not follow that all  
other communications between them lack privilege. In most solicitor and client  
relationships, especially where a transaction involves protracted dealings, advice may be  
required or appropriate on matters great or small at various stages. There will be a  
continuum of communication and meetings between the solicitor and client. The  
negotiations for a lease such as occurred in the present case are only one example.  
Where information is passed by the solicitor or client to the other as part of the continuum  
aimed at keeping both informed so that advice may be sought and given as required,  
privilege will attach. A letter from the client containing information may end with such  
words as “please advise me what I should do.” But, even if it does not, there will usually  
be implied in the relationship an overall expectation that the solicitor will at each stage,  
whether asked specifically or not, tender appropriate advice. Moreover, legal advice is  
not confined to telling the client the law; it must include advice as to what should  
prudently and sensibly be done in the relevant legal context.  
The miscellaneous documents in question meet the test of documents which do not actually  
contain legal advice but which are made in confidence as part of the necessary exchange of  
information between the solicitor and client for the ultimate objective of the provision of legal  
advice.  
[Order F2017-54, at para. 67]  
[Emphasis added]  
32  
[para 45]  
An essential Solosky criterion is that the information is “a communication between a  
solicitor and client.” At the time the parameters of this phase of the Inquiry were set out, I specifically  
asked the Public Body to provide an affidavit from a lawyer(s) who could attest to their personal  
knowledge that legal privilege applied to the relevant 33 pages of the June 10, 2016 Records at Issue.  
Instead, the Public Body elected to rely on two previously submitted affidavits from Public Body  
employees charged with responsibility for FOIP that were provided with the Public Body Initial Submission  
[2014], as discussed above, not sworn during this phase of the Inquiry. I find this to be problematic for  
the following reasons: the affiants are not identified as lawyers, one affidavit is sworn on information and  
belief based on advice from a lawyer (not one of the affiants). One affiant swore the large majority are  
privileged referring to all of the Records at Issue (564 pages) not specifically the June 10, 2016 Records  
at Issue. Neither of the affidavits are specifically affirming the contents of the specific pages of the June  
10, 2016 Records at Issue, particularly the new responsive pages, and yet the Public Body elected to rely  
on these affidavits rather than provide an affidavit(s) from a lawyer(s) as I requested. A recent court case  
in Saskatchewan faced the same evidentiary challenge:  
[KS], an employee of the University, was charged with the responsibility of having the University  
comply with the requirements of the Act regarding disclosure. He provided an affidavit to the  
Commissioner’s office which stated in part:  
I am advised by [RJA], our legal counsel, and do verily believe it to be true that  
documents were withheld due to their impact on other legal matters involving [DB].  
Specifically, [RJA] advised that some of the documents are the subject of solicitor-  
client privilege, and I do verily believe the same to be true.  
The Commissioner responded with various concerns: firstly, that the affidavit was on  
information and belief and not taken by someone who was a lawyer. The Commissioner  
would have preferred an affidavit sworn by Mr. [A] that the documents were truly the  
subject of solicitor-client privilege. Secondly, the response indicated that some of the  
records were subject to solicitor-client privilege. The Commissioner did not know which of  
those records were subject to the privilege … The Commissioner stated that it could not tell if  
Mr [S] had reviewed any of the documents in question that were being asserted were subject  
to the privilege.  
…
Even in the University of Calgary case, relied on heavily by the University, that institution provided  
information consistent with the civil rules of court. This University instead provided a  
response that led to ambiguity about whether there was any legitimate claim for seeking  
privilege resulting in a rejection by this Court of their entire position.  
[The Office of the Information and Privacy Commissioner, Saskatchewan v. The University of  
Saskatchewan, 2017 SKQB 140, at paras. 6-7, 39]  
[Emphasis underlining in original; Other emphasis added]  
[para 46]  
By the time I made the request to the Public Body for affidavit evidence from a lawyer(s)  
on November 16, 2016, the pages of the June 10, 2016 Records at Issue had been provided to me.  
Because the records themselves may or may not, on their face, reveal legally privileged information, I  
wanted to impress upon the Public Body the importance of providing affidavit evidence from a lawyer(s)  
who had knowledge about the information over which it was claiming legal privilege. This would have  
enabled me to measure if the communications met the criteria for the solicitor-client framework, as set out  
in the Pritchard and Campbell cases by the Supreme Court of Canada. That is, whether or not solicitor-  
client privilege can be applied is dependent on the Public Body providing evidence as to the nature of the  
relationship, the subject matter of the advice and the circumstances in which it is sought or rendered. No  
such evidence has been provided. That is, the Public Body has failed to identify who is acting as a  
lawyer(s), who is the client, and what information is a privileged communication between them, including  
as part of a continuum of solicitor-client communications.  
As set out in Campbell, supra, to establish that privilege applies to communications between itself  
and in-house counsel, a public body must provide evidence as to the nature of the  
33  
relationship between it and the lawyer, the subject matter of the advice, and the  
circumstances in which advice is sought and rendered. As discussed by former  
Commissioner Work in Decision P2011-D-003, the evidence required to establish privilege  
“should include the function, role and status of the receiver and sender of the documents in  
question and their relationship to the party to the action, the grounds for the claim of privilege,  
and a description of each document consistent with the law which renders it privileged”.  
[Order F2016-35, at para. 89; presently under Judicial Review; See also Order F2016-31, at para.  
38; R. v. Campbell, [1991] 1 SCR 565]  
[Emphasis added]  
[para 47]  
The final Solosky criterion is that the Public Body has provided evidence, or the records  
themselves reveal, the document or information was “intended to be confidential by the parties.” One  
affiant attested that from his/her review s/he thought the records as of 2014 were meant to be confidential  
though no evidence is provided to support that statement. Also, here the affiant is only referring to the  
responsive records. I examined the June 10, 2016 Records at Issue line-by-line and page-by-page for  
evidence of an intention by the parties that the information be confidential. There is no privileged  
disclaimer at the foot of any of the emails and no emails have the Outlook sensitivity feature activated to  
tag the exchanges as privileged and confidential or private communication. On the documents marked  
draft there is no clear indication that the information was intended to be kept confidential or was  
considered privileged. Notably, in the information released to the Applicants (First Applicant: August 31,  
2012 and Second Applicant: September 21, 2012), there are pages where the feature for “Privileged and  
Confidential Communication” has been activated (for examples, pages 4, 8, 10, and 11). The only email  
where a feature has been selected for the June 10, 2016 Records at Issue is page 120 that is marked  
“High Importance”, which page was released to the Applicants during this phase of the Inquiry. The  
words “confidential”, “private” or “privileged” do not appear anywhere on the remaining June 10, 2016  
Records at Issue.  
[para 48]  
Exercising caution not to reveal the contents of the June 10, 2016 Records at Issue, my  
observations with respect to solicitor-client privilege are as follows:  
1. Above, I referred to the evidence from the Public Body as sparse. The reason is that the only  
evidence provided is in the form of affidavits from the FOIP Director and the FOIP Advisor that  
were part of the Public Body Initial Submission [2014]. The former affiant is not identified as a  
lawyer and attests that the large majority of responsive records are privileged. The affiant is  
referring to all the records in the main Inquiry (then 564 pages) and not specifically to the June  
10, 2016 Records at Issue. The latter affiant is not identified as a lawyer and attests that (again  
with respect to all of the responsive records in the main Inquiry), s/he has been advised by a  
lawyer and does verily believe that the records are subject to both legal privileges. Both affidavits  
were sworn 2 years in advance of the 20 pages of the 35 total pages forming part of the records.  
This evidence is, therefore, of limited assistance and is not persuasive with respect to the June  
10, 2016 Records at Issue.  
2. The pages of records formerly designated as Non-Responsive would not have formed part of the  
Records at Issue about which the affiants swore their respective affidavits as no exceptions had  
been applied to those designated Non-Responsive. In addition, pages 645-648 [formerly 566-  
569] were not listed in the Index attached to the FOIP Director’s affidavit or the FOIP Request List  
of Exemptions that accompanied the access to information decisions. This means that a total of  
20 of the 33 pages where the legal exception under s. 27 has been applied were not pages of  
records over which the affiants swore their respective affidavits.  
3. I attempted to address the sparcity of evidence during this phase of the Inquiry. Despite being  
requested to do so, the Public Body failed to provide any affidavit evidence from any of the  
government employees (who happen to be lawyers) or any lawyer(s) attesting to the fact that  
their exchanges involved solicitor-client or litigation privilege. In other words, the Public Body has  
failed to provide affidavit evidence from any lawyer(s) who authored or was the recipient of any of  
34  
the information in the records who could attest to the fact that the information is subject to  
solicitor-client privilege, contrary to my request for it to do so.  
4. The records reveal there is no substantive legal advice sought or given between an identifiable  
solicitor and a client nor any commentary about legal advice. While some of the exchanges  
within the Records at Issue are between two senior employees of the Public Body and one from  
Alberta Health, at least two of whom are identified as lawyers [QC], they are neither  
communicating with a client nor are they exchanging information that falls within the meaning of  
legal advice. The information in the records reveals government employees, identified as lawyers  
[QC], engaging in what is more appropriately characterized as exchanges involving administrative  
decision-making; advice, recommendations, analyses, consultations, and/or deliberations.  
Alberta Health was never identified as the client in relation to its participation in the exchanges.  
5. There is no direct evidence indicating the exchanges or the documents accompanying the emails  
were intended to be confidential as privileged communiques.  
6. The information communicated between the senior government employees who happen to be  
lawyers does not fit within the solicitor-client framework as there is no exchange between a  
lawyer and a client. These individuals did not provide affidavits attesting to any role they had as  
a lawyer with respect to the information in the pages of records. The Public Body has failed to  
provide any evidence as to who the client is and who the lawyer is, who are engaged in a  
privileged communique, and failed to point to any information within the Records at Issue that is  
evidence of this relationship and exchange.  
Litigation Privilege  
[para 49]  
In addressing the first question of whether the Public Body has properly relied on the s.  
27 exception, I conducted a line-by-line review of all 33 pages of the June 10, 2016 Records at Issue to  
identify any information meeting the definition of litigation privilege, as distinguishable from solicitor-client  
privilege. At paras. 13-14 of the Public Body Initial Submission [2016], it stated:  
The 12 unreleased records are confidential communications between a solicitor and client in the  
context of obtaining legal advice,3 and they all relate to the Government of Alberta’s lawsuit  
against the tobacco companies pursuant to the Crown’s Right of Recovery Act,4 which remains  
ongoing to this day.  
Accordingly, the 12 unreleased records at issue in this phase of the inquiry are protected by both  
types of legal privilege.  
[para 50]  
While litigation privilege is clearly within the terms of the s. 27(1)(a) exception and  
together with solicitor-client privilege serves the common cause of a secure and effective administration of  
justice according to law, it is conceptually distinct from solicitor-client privilege. As the Supreme Court of  
Canada held in the Blank case:  
This appeal requires the Court, for the first time, to distinguish between two related but  
conceptually distinct exemptions from compelled disclosure: the solicitor-client privilege and the  
litigation privilege. They often co-exist and one is sometimes mistakenly called by the other’s  
name, but they are not coterminous in space, time or meaning.  
…
Much has been said in these cases, and others, regarding the origin and rationale of the solicitor-  
client privilege. The solicitor-client privilege has been firmly entrenched for centuries. It  
recognizes that the justice system depends for its vitality on full, free and frank communication  
between those who need legal advice and those who are best able to provide it. Society has  
entrusted to lawyers the task of advancing their clients’ cases with the skill and expertise  
available only to those who are trained in the law. They alone can discharge these duties  
effectively, but only if those who depend on them for counsel may consult with them in  
35  
confidence. The resulting confidential relationship between solicitor and client is a necessary and  
essential condition of the effective administration of justice.  
Litigation privilege, on the other hand, is not directed at, still less, restricted to, communications  
between solicitor and client. It contemplates, as well, communications between a solicitor and  
third parties or, in the case of an unrepresented litigant, between the litigant and third parties. Its  
object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client  
relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to  
prepare their contending positions in private, without adversarial interference and without fear of  
premature disclosure.  
R. J. Sharpe (now Sharpe J.A.) has explained particularly well the differences between litigation  
privilege and solicitor-client privilege:  
It is crucially important to distinguish litigation privilege from solicitor-client  
privilege. There are, I suggest, at least three important differences between the  
two. First, solicitor-client privilege applies only to confidential communications between  
the client and his solicitor. Litigation privilege, on the other hand, applies to  
communications of a non-confidential nature between the solicitor and third parties and  
even includes material of a non-communicative nature. Secondly, solicitor-client privilege  
exists any time a client seeks legal advice from his solicitor whether or not litigation is  
involved. Litigation privilege, on the other hand, applies only in the context of litigation  
itself. Thirdly, and most important, the rationale for solicitor-client privilege is very  
different from that which underlies litigation privilege. This difference merits close  
attention. The interest which underlies the protection accorded communications  
between a client and a solicitor from disclosure is the interest of all citizens to have full  
and ready access to legal advice. If an individual cannot confide in a solicitor knowing  
that what is said will not be revealed, it will be difficult, if not impossible, for that individual  
to obtain proper candid legal advice.  
Litigation privilege, on the other hand, is geared directly to the process of litigation. Its  
purpose is not explained adequately by the protection afforded lawyer-client  
communications deemed necessary to allow clients to obtain legal advice, the interest  
protected by solicitor-client privilege. Its purpose is more particularly related to the  
needs of the adversarial trial process. Litigation privilege is based upon the need  
for a protected area to facilitate investigation and preparation of a case for trial by  
the adversarial advocate. In other words, litigation privilege aims to facilitate a  
process (namely, the adversary process), while solicitor-client privilege aims to  
protect a relationship (namely, the confidential relationship between a lawyer and a  
client).  
(“Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of  
Upper Canada (1984), 163, at pp. 164-65)  
[Blank, at paras. 1, 26-28; See also Lizotte, at paras.19-25]  
[Emphasis added]  
[para 51]  
As I noted above in my summary of the Public Body Initial Submission [2016], the Public  
Body argued that “all the exceptions” claimed pursuant to s. 27 apply to all 12 records. Calculated  
another way, this means the Public Body has claimed that all the exceptions under s. 27 apply to all 35  
pages of the records despite the fact that s. 27 has only been claimed for 33 pages of records. The  
affidavit of the FOIP Director at para. 13 does not offer any additional clarification when s/he states: “I  
found that the large majority are privileged.” At para. 8 of its Initial Submissions [2016], the Public Body  
submits, “[l]itigation privilege is now recognized as being a separate legal privilege from solicitor-client  
privilege” yet claims multiple exceptions under s. 27, including both solicitor-client privilege and litigation  
privilege, apply to the same information in the records. The two privileges are intended to be distinct.  
As this Court stated in Opron Construction Co. v. Alberta (1989), 100 A.R. 58 at p. 60 (C.A.):  
36  
If the dominant purpose for creating a paper is privileged, the paper need not be shown:  
Nova… One such privileged purpose is to run or defend civil or criminal litigation, then  
existing or contemplated: Phipson on Evidence, ss. 15-18 (13th Ed.); Cross on Evidence,  
pp. 388-89 (6th Ed. 1985). This litigation privilege is completely separate from privilege  
from communications to or from a lawyer to get or receive legal advice. One does not  
need both situations to withhold papers: either one suffices.  
(Emphasis added.)  
At p. 61 of Opron, the Court again noted that a litigant claiming privilege need not overcome the  
“double hurdle” of litigation privilege and “legal advice” or solicitor-client privilege. The solicitor-  
client privilege and the litigation privilege are distinct, and should not be confused. The  
former attaches to all confidential communications made between lawyer (or lawyer’s  
agent) and client, where the client is seeking the lawyer’s advice. Litigation privilege is  
broader in scope, in that it attaches even to communications with, or documents prepared  
by, third parties. Litigation privilege is limited, though, to situations where the dominant  
purpose for the communications or creation of the document was, at the time of its  
creation, use in relation to litigation.  
Historically, it appears that the litigation privilege originated as an extension of the solicitor-client  
privilege. As described by Sopinka, Lederman, and Bryant in The Law of Evidence in Canada  
(Butterworths, 1992), at p. 653:  
[solicitor-client privilege]…expanded beyond communications passing between the client  
and solicitor and their respective agents, to encompass communications between the  
client or his solicitor and third parties if made for the solicitor’s information for the purpose  
of pending or contemplated litigation.  
Nevertheless, today the two types of privilege are based upon very different rationales.  
[Moseley v. Spray Lakes Sawmills (1980) Ltd., 1996 ABCA 141, at paras. 17-19]  
[Emphasis underlining in original; other emphasis added]  
[para 52]  
As referred to above, pursuant to s. 71(1) of the FOIP Act, the Public Body has the  
burden to prove the Applicants have no right of access to the information that it withheld under s. 27. To  
demonstrate that litigation privilege applies to any of the 33 pages of the Records at Issue where s.  
27(1)(a) of the FOIP Act has been applied, it was necessary for the Public Body to meet a three-part test.  
In Order F2007-013, a former Commissioner provided the three-part test the Public Body must meet in  
order to demonstrate the litigation privilege had been correctly applied:  
a. there is a third party communication, which may include  
(i) communications between the client or the client’s agents and third parties for the  
purpose of obtaining information to be given to the client’s solicitors to obtain legal  
advice;  
(ii) communications between the solicitor or the solicitor’s agents and third parties to  
assist with the giving of legal advice; or  
(iii) communications which are created at their inception by the client, including reports,  
schedules, briefs, documentation, etc.  
b. the maker of the document or the person under whose authority the document was made  
intended the document to be confidential; and  
c. the ‘dominant purpose’ for which the documents were prepared was to submit them to a legal  
advisor and use in the litigation, whether existing or contemplated. The “dominant purpose” test  
consists of three requirements:  
37  
(i) the document must have been produced with existing or contemplated litigation in  
mind,  
(ii) the document must have been produced for the dominant purpose of existing or  
contemplated litigation, and  
(iii) if litigation is contemplated, the prospect of litigation must be reasonable.  
[Order F2007-013, at para. 78 citing Order 97-009; Dominant purpose remains the test for  
litigation privilege: See also Blank, at para. 60 and Suncor, at paras. 36-37.]  
[Emphasis added]  
[para 53]  
Has the Public Body met the three-part test to establish that it has properly relied on  
litigation privilege? While both privileges may apply to the same information, it is the Public Body that  
bears the onus to provide the evidentiary base to establish that each privilege applies independently.  
Suncor asserted both solicitor-client and litigation privilege over nearly all of the documents it  
refused to produce. Although documents may frequently be subject to both forms of  
privilege, Suncor must independently distinguish whether solicitor-client or litigation  
privilege applies, in order to permit a meaningful assessment and review of each bundle of  
documents. Making a blanket assertion that both forms of privilege apply, in instances  
where one or the other is clearly unavailable, is a litigation tactic that ought to be  
discouraged.  
Parties must describe the documents in a way that indicates the basis for their claim: ShawCor at  
para 9. The grounds for claiming solicitor-client privilege and litigation privilege are distinct. A  
description that supports one class of privilege does not necessarily support the other.  
To support a claim of solicitor-client privilege, Suncor must at least describe the documents in a  
manner that indicates communications between a client and a legal advisor related to seeking or  
receiving legal advice.  
To support a claim of litigation privilege, Suncor must describe documents with enough  
particularity to indicate whether the dominant purpose for their creation was in contemplation of  
litigation.  
In conclusion, we find that the chambers judge erred in finding that the documents were  
sufficiently described to allow an assessment of the privilege claims.  
[Suncor, at paras. 45-48]  
[Emphasis added]  
[para 54]  
Further, exercising caution not to reveal the contents of the June 10, 2016 Records at  
Issue, my observations with respect to litigation privilege are as follows;  
1. There is no evidence that any of the pages of records is an exchange of communications  
between a client and a third party. With respect to litigation privilege, the communications must  
be between clients or lawyers and third parties (witnesses, experts, etc) or created by a client and  
go beyond communications between lawyers and clients. The exchanges in the Records at Issue  
involve employees of the Public Body who are administrative staff and senior government  
employees who happen to be lawyers but are not acting as legal counsel nor communicating with  
a client or clients, their agents or third parties. There is no communication with a third party or  
with outside retained counsel.  
2. At the time of the requests to access information and the Public Body’s response to the access  
requests in 2012 and the 564 pages of records in the main Inquiry were compiled, the lawyers  
who were to act on behalf of the Province in lawsuits to recover tobacco related health care costs  
had been selected. As revealed in the Applicants’ submissions, the litigation was reasonably  
foreseeable as the decision to proceed with litigation for the recovery of tobacco related health  
38  
care costs had been publicly announced and since the time of the access to information requests,  
the anticipated litigation has been commenced. There is no evidence before me that the litigation  
has concluded.  
3. As noted in the observations with respect to solicitor-client privilege, the pages of records  
formerly designated as Non-Responsive would not have formed part of the records about which  
the affiants swore their respective affidavits as no exceptions had been applied to those Non-  
Responsive pages. In addition, pages 645-648 [formerly 566-569] were not listed in the exhibits  
attached to the FOIP Director’s affidavit including an Index and the FOIP Request List of  
Exemptions that accompanied the access to information decisions. This means that a total of 20  
of the 33 pages where the legal exceptions under s. 27 have been applied were not pages of  
records over which the affiants swore their affidavits.  
4. While the information is about the selection of counsel for future litigation, in part the subject of  
the Applicants’ access requests, I find it is not information that is protected from disclosure under  
the test for litigation privilege that was re-affirmed in Lizotte, at para. 60: maintaining a “protected  
area to facilitate investigation and preparation of a case for trial by the adversarial  
advocate.” [my emphasis] Said another way, there is no substantive content in the information in  
the records about facilitating the investigation and preparation for the anticipated litigation either  
with a client’s agent or a third party and instead relates solely to the process of selection of  
counsel for planned future litigation.  
5. There is no evidence that this document was created with the dominant purpose of receiving legal  
advice in preparation for, or as an aid to, the conduct of litigation. There is no information given  
to a legal advisor or third party for use in litigation.  
6. Even giving the definition of litigation privilege its broadest interpretation, it is difficult, if not  
impossible, to conceptualize how information in emails and documents exchanged between  
employees of the Public Body about retaining lawyer(s) for the purpose of future litigation could  
fall within the meaning of litigation privilege as part of the exception in s. 27(1)(a) of the FOIP Act.  
The dominant purpose for which the documents were prepared was not to provide them to a legal  
advisor for use in the anticipated litigation.  
7. As discussed at para. 47 above with respect to solicitor-client privilege (the same 33 pages to  
which litigation privilege has been applied), there is no evidence indicating the email exchanges  
or the documents accompanying the emails were intended to be confidential. For example, there  
is no privileged disclaimer at the foot of any of the emails and no emails have the Outlook  
sensitivity feature activated to tag the exchanges as privileged and confidential or private  
communications.  
[para 55]  
The Public Body Initial Submission [2014] and Initial Submission [2016] were insufficient  
to demonstrate how the s.27(1)(a) exception applies to the 33 pages where it has been claimed. After a  
careful review of the June 10, 2016 Records at Issue and all of the submissions, I find the Public Body’s  
response overall with respect to s. 27(1)(a) has led to ambiguity about any legitimate claim for seeking  
privilege for the 33 pages to which it has been applied. Therefore, I find the Public Body did not properly  
rely on the legal privilege exceptions in s. 27(1)(a) of the FOIP Act.  
[para 56]  
It is only after the first question is answered in the affirmative, in other words, that the  
Public Body has demonstrated the exception has been properly relied on, that I would turn to the second  
question; whether or not the Public Body has properly exercised its discretion in withholding the Records  
at Issue under the s. 27(1)(a) exception. Because the legal privilege exceptions do not apply to the 33  
pages of the Records at Issue over which it has been claimed, it is unnecessary to consider the Public  
Body’s exercise of discretion under s. 27.  
39  
[para 57]  
I turn now to consider the other exceptions applied by the Public Body to the pages of the  
June 10, 2016 Records at Issue before considering whether or not to order the release of the pages for  
which the Public Body had claimed s. 27(1)(a).  
[para 58]  
Before doing so, it is important to consider evidence of a report referred to by the parties.  
When it provided the June 10, 2016 Records at Issue to the Commissioner’s Office, the Public Body’s  
explanation for doing so made reference to the Ethics Commissioner’s review. Counsel for the Public  
Body indicated s/he had received new instructions based on the Ministry’s decision to provide new  
information to the Ethics Commissioner. This came as a result of the findings in the Iacobucci Review  
Report. Counsel for the Public Body explained this is what led to the June 10, 2016 partial release of  
Records at Issue to me as the External Adjudicator, the records which are the subject of this phase of the  
Inquiry. In my July 5, 2016 letter to the parties, I acknowledged that the Public Body’s correspondence  
had pointed to the Iacobucci Review Report thereby signalling the report’s relevance to this phase of the  
Inquiry. The Applicants made reference to the report in their submissions. At para. 103 of his Review  
Report, the Hon. Iacobucci wrote:  
In this case certain relevant information was not available to the Ethics Commissioner because it  
was subject to claims of solicitor-client privilege. In making this observation I do not intend to  
question the decision by the Government to assert privilege. Legal privilege is foundational to our  
legal system; solicitor-client privilege in particular has been described as “fundamental to the  
justice system in Canada.”  
[para 59]  
This observation is reproduced here to highlight the fact that the Hon. Iacobucci was  
clearly attuned, at the time of his Review Report being made public on March 30, 2016, to the possible  
sensitivity of the information before him, some of which the Public Body claimed was protected by  
solicitor-client privilege. The June 10, 2016 Index of Records had 6 clusters of Records for which no  
exceptions were listed but instead were designated Non-Responsive. As shown in Appendix A, it was not  
until December 14, 2016 when the Public Body provided its Initial Submission [2016] that the Public Body  
replaced the Non-Responsive designation for 20 of the pages of the June 10, 2016 Records at Issue with  
exceptions, including legal privilege, under s. 27 of the FOIP Act. The exceptions that were added to the  
December 14, 2016 Amended Index were not marked on the actual pages of records.  
[para 60]  
It is of special interest, therefore, to point to the contents of many pages of the June 10,  
2016 Records at Issue that are quoted or referred to by the Hon. Iacobucci in his Review Report.  
[para 61]  
In order not to reveal the contents of the June 10, 2016 Records at Issue, I will not  
provide where in the Iacobucci Review Report the Records are quoted. I will, however, cite the pages of  
the Records that have been quoted in the Iacobucci Review Report for which the Public Body has  
applied the legal privilege pursuant to s. 27(1)(a) of the FOIP Act:  
Pages: 99, 100, 101, 114, 115, 129, 259, 266, 646 [formerly 567], 647 [formerly 568]  
[NOTE: For most of these pages of records, the Public Body initially designated them as Non-  
Responsive: 99, 100, 101, 114, 115, 646 [formerly 567], 647 [formerly 568.]  
[para 62]  
I also cite the pages of records where the contents of the information contained in the  
records has been referred to in the Iacobucci Review Report, where the Public Body has applied the  
legal privilege exception in s. 27(1)(a) of the FOIP Act:  
Pages: 99-107, 113-119 [114 in particular], 645-648 [formerly 566-569]  
[NOTE: For all of these pages of records, the Public Body initially designated them as Non-  
Responsive.]  
[para 63]  
As a result, I am confident in my finding that legal privilege does not apply to any of the  
pages over which it has been claimed, specifically, those pages referred to above because I consider it to  
be a reasonable conclusion that the Hon. Iacobucci would not have quoted or revealed the information in  
the documents referred to in his public report were any of it, in his judicious opinion, subject to solicitor-  
40  
client or litigation privilege. It is important to note that the Iacobucci Review Report was made public on  
March 30, 2016, two plus months in advance of the 20 pages of the June 10, 2016 Records at Issue  
being compiled and eight plus months in advance of the information previously designated Non-  
Responsive being processed and the exceptions applied. In other words, the information from the  
majority of pages that make up the June 10, 2016 Records at Issue were in the public domain well before  
they were provided me as the External Adjudicator. I turn now to the other exceptions claimed by the  
Public Body pursuant to s. 27.  
B. Section 27(1)(b)(ii)  
[para 64]  
Section 27(1)(b)(ii) [information prepared by or for an agent or lawyer of the Minister of  
Justice and Solicitor General] has been claimed for 33 of the total 35 pages of the Records at Issue [98,  
99-102, 103-107, 113-119, 129, 258-261, 262-264, 265-268 and 645-648]. Under s. 71(1) of the FOIP  
Act, the Public Body has the burden to prove the Applicants have no right of access to the information  
that it withheld under s. 27(1)(b)(ii).  
[para 65]  
The exception in s. 27(1)(b)(ii) of the FOIP Act reads as follows;  
27(1) The head of a public body may refuse to disclose to an applicant  
…
(b) information prepared by or for  
…
(ii) an agent or lawyer of the Minister of Justice and Solicitor General, …  
in relation to a matter involving the provision of legal services,  
[para 66]  
I turn to the second part of Issue #1: Whether the Public Body properly relied on and  
applied s. 27(1)(b)(ii) of the FOIP Act to the information in the June 10, 2016 Records at Issue. Relying  
on the Ontario (Public Safety and Security) case, I begin by asking the first of two questions: whether or  
not the Public Body has properly relied on s. 27(1)(b)(ii). In other words, do the Records at Issue over  
which this exception has been applied contain information prepared by or for a lawyer or agent of the  
Minister of Justice and Solicitor General in relation to a matter involving the provision of legal services?  
[para 67]  
In order to determine if s. 27(1)(b)(ii) applies to the information over which it has been  
applied, it is necessary to examine the statutory language employed in the exception. First, what is  
meant by “information prepared … in relation to a matter”?  
In the context of “information in relation to a matter involving the provision of legal services”, I  
read “matter involving the provision of the legal services” such that the “matter” is constituted by,  
or consists of, the provision of legal services. The other potential interpretation of this part of the  
provision – that the phrase is met for any matter to which legal services have been provided at  
some time – is implausible. It would have the provision take into account a factor (that the matter  
happens to have involved the provision of legal services) that may be coincidental and have no  
relevance to the information that is being prepared and which requires the protection of the  
provision. I interpret the phrase “information prepared in relation to” as referring to  
information compiled or created for the purpose of providing the services, in contrast to  
merely touching or commenting upon the provision of the services. The use of the term  
“prepared” – which the Canadian Oxford Dictionary defines as “to make ready for use” - carries  
the suggestion that the information is necessary for the outcome that legal services be provided.  
It follows, then, that the person contemplated by the provision who is preparing the  
information, is doing so for the purpose of providing legal services, and therefore must be  
either the person providing the legal service or a person who is preparing the information  
on behalf of, or, at a minimum, for the use of, the provider of legal services.  
41  
It also follows that section 27(1)(b) does not cover the situation where a person, even a person  
who is one of the persons listed in subclauses i – iii, creates information that is connected in  
some way with the provision of legal services but is not created for that purpose. For example,  
section 27(1)(b) does not apply to information that merely refers to or describes legal  
services without revealing their substance.  
[Order F2008-021, at paras. 110-112]  
[Emphasis added]  
[para 68]  
Second, what is meant by “prepared by or for”?’ The key is that the information in the  
record is for a lawyer or someone preparing the information under the direction of a lawyer.  
For section 27(1)(b) to apply to information, the information in question must be prepared by  
the lawyer or someone acting under the direction of the lawyer for the purpose that a  
lawyer will use the information in order to provide legal services to a public body.  
In Order F2008-028, the Adjudicator held that the term “prepared” in section 27(1)(b) precludes  
information that is not substantive, such as dates, letterhead, and names and business  
contact information. He said at paragraphs 156 – 158 of that order:  
I find that the substantive information on pages 305-311 was prepared for a lawyer of a  
public body in relation to a matter involving the provision of legal services, and therefore  
falls within section 27(1)(b)(iii). However, this is not because the information was sent to  
a solicitor, as the fact that information was destined to go to someone does not  
necessarily mean that it was prepared by or for that person. Under other sections of the  
Act, it has been concluded that, for a record or information to be created "by or for"  
a person, the record or information must be created "by or on behalf of" that  
person [Order 97-007 at para. 15, discussing what is now section 4(1)(q) of the Act;  
Order 2000-003 at para. 66, discussing what is now section 4(1)(j); Order 2008-008 at  
para. 41, discussing section 24(1)(a)]. Here, I find that the substantive content of pages  
305-311 was prepared "for" the lawyer who received the information because the  
covering letter indicates that the sender of the information was specifically asked to  
provide input.  
[Order F2014-38, at paras. 84-85]  
[Emphasis added]  
[para 69]  
Third, the statute refers to “agent or lawyer of the Minister of Justice and Solicitor  
General.” The information in the records does involve senior employees who appear to be lawyers [QC]  
but who are acting in a position other than as a “lawyer of the Minister of Justice and Solicitor General.”  
An employee of the Public Body does not fall within the meaning of “agent” within the terms of s.  
27(1)(c)(ii):  
Even if the sender or recipient of correspondence is not a lawyer, section 27(1)(c) permits the  
withholding of information sent to or from an “agent”. In my view, the reference to “agent” is not  
intended to include everyone employed by or otherwise acting on behalf of the Minister of  
Justice and Attorney General or another public body. If that were the case, section 27(1)(c)  
would shield a great many records of a public body from disclosure under the Act, given that a  
great many records consist of correspondence from employees in relation to the advice or other  
services that they provide. The Legislature may have cast a wide net in section 27(1)(c), but  
it could not have intended to cast such a wide net. If it had so intended, it would have used  
the word “employee” – as done elsewhere in the Act – rather than the word “agent”.  
A basic rule of interpretation is that it is presumed that Parliament or a Legislature uses language  
carefully and consistently, and that within a statute, the same words are taken to have the same  
meaning and different words have different meanings [Winko v. British Columbia (Forensic  
Psychiatric Institute), [1999] 2 S.C.R 625 at para. 133, citing Ruth Sullivan, Driedger on the  
Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994) at pp. 163 to 65]. Given this rule  
42  
of interpretation, the fact that the word “agent” is used in section 27(1)(c) – as well as 27(1)(b) –  
shows that the Legislature intended for the term “agent” to mean something different than the  
broader term “employee”. (“Employee” is already defined in section 1(e) of the Act to include a  
person who performs a service for the public body under a contract or agency relationship, so use  
of the term “employee” would not have excluded outside legal and non-legal agents).  
[Order F2008-028, at paras. 161-162]  
[Emphasis added]  
[para 70]  
Fourth, the reference in the statute is to “the provision of legal services” has been  
interpreted as follows:  
In Order 96-017, the former Commissioner defined the term “legal services” to include any law-  
related service performed by a person licensed to practice law. In that Order, the former  
Commissioner also emphasized that this provision applies to information prepared in relation to a  
matter involving the provision of legal services.  
[Order F2007-013, at para. 67]  
[Emphasis underlining in original]  
[para 71]  
Section 27(1)(b) clearly is meant to apply where “information is prepared by or for an  
agent or lawyer … in relation to a matter involving the provision of legal services.”  
Applying the reasoning in Orders 99-022, F2008-021, and F2008-028, information “prepared for  
an agent or lawyer of a public body” is substantive information prepared on behalf of an agent or  
lawyer so that the agent or lawyer may provide legal services. Information sent to an agent or  
lawyer of the public body in circumstances where the sender is seeking to obtain legal services, is  
not captured by section 27(1)(b), as the information is not prepared on behalf of the agent or  
lawyer. It also follows that section 27(1)(b) does not cover the situation where a person, even  
a person who is one of the persons listed in subclauses i – iii, creates information that is  
connected in some way with the provision of legal services but is not created for that  
purpose. For example, section 27(1)(b) does not apply to information that merely refers to or  
describes legal services without revealing their substance. The term “agent” does not refer to any  
employee of a public body, but to an individual who is acting as an agent of a public body under  
particular legislation or in the course of a specific matter or proceeding.  
[Order F2014-38, at para. 87; See also Order F2009-024, at paras. 74-75]  
[Emphasis added]  
[para 72]  
Adjudicators have consistently found that the information being “prepared” must have a  
substantive content with respect to the provision of legal services rather than communication that is  
simply administrative in nature. This would be consistent with where the s. 27(1)(b)(ii) exception is found  
in the statute; part of s. 27, the “Privileged information” exceptions.  
However, to fall under section 27(1)(b), there must be "information prepared" as those words are  
commonly understood (Order 99-027 at para. 110). I therefore do not extend the application of  
section 27(1)(b) to the dates, letterhead, and names and business contact information of the  
sender and recipient of the information on pages 305-311. These are not items of information that  
were "prepared". In keeping with principles articulated in respect of sections 22 and 24 of the Act,  
section 27(1)(b) does not extend to non-substantive information, such as dates and identifying  
information about senders and recipients, unless this reveals the substantive content elsewhere.  
However, in the context of section 27(1)(b) - which applies more broadly to information that was  
prepared rather than substance of deliberations or advice under section 22 and 24 - I find that the  
heading on page 309 reveals the information that was prepared in the rest of the document.  
Pages 351-352, 353 (lower two thirds), 355 (upper half) and 373 consist of e-mail exchanges. I  
find that the content of these e-mails may not be withheld under section 27(1)(b). With the  
exception of the last five lines of page 352 and the top half of page 351, I do not consider the  
information to be “prepared”. In my view, the word “prepared” implies that there must be a  
43  
greater degree of substantive content, rather than simply a communication of an  
administrative nature (e.g., distributing documents, arranging meetings) or a  
communication referring to or briefly discussing information that has been prepared  
elsewhere.  
[Order F2008-028, at paras. 157-158]  
[Emphasis added]  
[para 73]  
The Public Body took issue with previous decisions from the Commissioner’s Office that  
imposes the requirement that the information in the record must have substantive content in order to fall  
s. 27(1)(b). In that regard, the Public Body stated the following as part of its submissions:  
Similarly, it is important to note that section 27(1)(b) does not refer to the substance of the legal  
services provided. To the extent that previous decisions of the Commissioner might have  
interpreted section 27(1)(b) as being restricted to information about the substance of the legal  
services provided, those decisions are incorrect in law. Further, if section 27(1)(b) were only to  
apply to information about the substance of the legal services provided, it would be unnecessary  
because information about the substance of the legal services provided would come under  
section 27(1)(a) - legal privilege. Because section 27(1)(b) is a separate provision in the Act  
indicates that the Legislature intended it to have a different meaning from section 27(1)(a).  
[Public Body Initial Submission [2014], at para. 11]  
[para 74]  
I am not persuaded by the Public Body’s argument. Read as a whole the provision  
states: “The head of a public body may refuse to disclose to an applicant information prepared by or for  
an agent or lawyer of the Minister of Justice and Solicitor General, … in relation to a matter involving the  
provision of legal services.” Based on the interpretations given to each of the language components in s.  
27(1)(b)(ii), as above, and relying on the guidance provided by the heading of s. 27 (discussed in detail  
below), I conclude that the information in the records needs to have been prepared by or for an agent or  
lawyer and contain information in relation to the provision of legal services. I agree with the Public Body  
that the information protected from disclosure under s. 27(1)(b)(ii) will be distinct from information  
protected by legal privilege as that would fall under s. 27(1)(a). The information must, however, contain  
substantive content with respect to the provision of legal services that goes beyond non-substantive  
administrative information such as dates, names and references related to the administrative process of  
selection of outside counsel.  
[para 75]  
Exercising caution not to reveal the contents of the June 10, 2016 Records at Issue, my  
observations with respect to s. 27(1)(b)(ii) of the FOIP Act are as follows:  
1. The information in the 33 pages of Records was not information prepared by or for an agent or a  
lawyer of the Minister of Justice and Solicitor General. Rather it was information prepared by or  
for senior employees of the Public Body and another public body, Alberta Health, none of whom  
were acting in the capacity as a lawyer of the Minister of Justice and Solicitor General.  
2. The information was not prepared by or for an agent or lawyer in relation to a matter involving the  
provision of legal services.  
3. The information was prepared by, or for, an employee of the Public Body by or for another  
employee of the Public Body (or another public body) in relation to the process of selection of  
outside counsel with respect to the provision of future legal services.  
4. The exchange was about the provision of legal services in the future by outside counsel, which  
lawyers are not a party to the exchanges documented in the information in the pages of the June  
10, 2016 Records at Issue.  
5. The requirement for there to be substantive information in the records about the provision of legal  
services by a lawyer or agent gives meaning to this exception. There is a difference between  
substantive information contained in a record that is created for the purpose of providing a  
44  
legal service and information that falls within the definition of solicitor-client or litigation privileged  
information.  
6. As noted in the observations with respect to legal privilege, the 20 pages of records formerly  
designated as Non-Responsive would not have formed part of the records about which the  
affiants swore their respective affidavits as no exceptions had been applied and the pages did not  
form part of the Records at Issue at the time of being sworn. In addition, pages 645-648 (formerly  
566-569) were not listed in the Index attached to the FOIP Director’s affidavit or in the FOIP  
Request List of Exemptions that accompanied the access to information decisions. This means  
that a total of 20 of the 33 pages where the exceptions under s. 27(1) have been applied were not  
pages of records over which the affiants swore their affidavits.  
[para 76]  
The Public Body Initial Submission [2014] and Initial Submission [2016] were insufficient  
to demonstrate how the s. 27(1)(b)(ii) exception applies to the 33 pages where it has been claimed. After  
a careful review of the June 10, 2016 Records at Issue and all of the submissions, I find the Public Body’s  
response overall with respect to s. 27(1)(b)(ii) has led to ambiguity about any legitimate claim for seeking  
privilege for the 33 pages to which it has been applied. Therefore, I find the Public Body did not properly  
rely on the legal privilege exceptions in s. 27(1)(b)(ii) of the FOIP Act.  
[para 77]  
Because this exception has not been properly relied on, it is unnecessary to consider the  
Public Body’s exercise of discretion under s. 27(1)(b)(ii). Turning now to the final exception claimed  
under s. 27.  
C. Section 27(1)(c)(ii)  
[para 78]  
Section 27(1)(c)(ii) [information in correspondence between an agent or lawyer of the  
Minister of Justice and Solicitor General and any other person] has been claimed for a total of 2 pages of  
the Records [98, 129]. Under s. 71(1) of the FOIP Act, the Public Body has the burden to prove the  
Applicants have no right of access to the information that it withheld under s. 27(1)(c)(ii).  
[para 79]  
The exception in s. 27(1)(c)(ii) of the FOIP Act reads as follows;  
27(1) The head of a public body may refuse to disclose to an applicant  
…
(c) information in correspondence between  
…
(ii) an agent or lawyer of the Minister of Justice and Solicitor General, …  
and any other person in relation to a matter involving the provision of advice or other  
services by the Minister of Justice and Solicitor General or by the agent or lawyer.  
[para 80]  
I turn to the third part of Issue #1: Whether the Public Body properly relied on and applied  
s. 27(1)(c)(ii) of the FOIP Act to the information in the June 10, 2016 Records at Issue. I begin by asking  
the first of two questions: whether or not the Public Body has properly relied on s. 27(1)(c)(ii). In other  
words, do the June 10, 2016 Records at Issue over which this exception has been applied contain  
information in correspondence between an agent or lawyer of the Minister of Justice and Solicitor General  
and any other person in relation to a matter involving the provision of advice or other services by the  
Minister of Justice and Solicitor General or by the agent or lawyer?  
[para 81]  
The 2 pages to which the Public Body has applied this exception are described in the  
Amended Index as an ‘Email’ with dates on both records disclosed. Both of these pages of records  
involve an email exchange between senior employees within the Public Body and another employee from  
Alberta Health, at least two of whom are identified as lawyers [QC]. Those identified as lawyers are not,  
however, identified as a “lawyer of the Minister of Justice and Solicitor General” in the information in the  
records themselves or in any of the submissions provided by the Public Body. In other words, the  
information on these 2 pages of records does not reveal any person acting in the capacity of a lawyer or  
45  
legal counsel. The information in the emails is in relation to, and part of the process of, the selection of  
outside counsel to provide future legal services.  
[para 82]  
McMahon, J., sitting as an External Adjudicator, had the following to say with respect to  
s. 27(1)(c):  
As can be seen from the foregoing, the exemptions and exceptions are very wide and have the  
potential to sweep in a number of government documents. In addition, the head of a public body  
has a discretion in many cases to release documents or not. Despite the noble sentiments often  
expressed in support of this kind of legislation, the reality is that a government’s desire for  
secrecy too often trumps the nominal objective of “freedom of information”. When attempting to  
access information from Alberta Justice files in particular, one need only look to s. 27(1) to see  
the crafted impediments. Subsection 27(1)(b) permits the public body to refuse disclosure of  
information prepared by or for an agent or a lawyer of the public body that merely relates to a  
matter involving the provision of legal services. The information need not involve the provision of  
actual legal services. Even more sweeping is subsection 27(1)(c). It permits non-disclosure of  
information in any correspondence between a lawyer of a public body (which would include all  
Alberta Justice lawyers), or an agent of a public body (which would extend to the non-legal staff  
of Alberta Justice) on the one hand, and anyone else. The information need merely relate to a  
matter involving the provision of any kind of advice or any kind of service by the agent or  
lawyer.  
It would be difficult to draft a more general or exclusionary clause. Despite the fact that it  
was public money facilitating Mr. Day’s legal defence, only selective documents have been  
released to the public under the “public interest override” contained in s. 32 of the Act. These  
documents deal with, primarily, settlement costs. Thousands of records still remain hidden from  
public view. Vesting in the head of the public body, in this case the Minister of Justice, the  
discretion to disclose or not to disclose in the context of these broad provisions permits  
government to manipulate public knowledge by the selective release of documents, as occurred  
here. That process has however legislative sanction.  
[OIPC External Adjudicator Order #4 (October 3, 2003), at paras. 12-13]  
[Emphasis underlining in original; Other emphasis added]  
[para 83]  
Notwithstanding the breadth of s. 27(1)(c) of the FOIP Act referred to by Adjudicator  
McMahon, a more recent decision examined the language in s. 27(1)(c)(ii) to reveal what is required for a  
Public Body to deny access to records based on this exception. In that case, Adjudicator Cunningham  
said:  
As stated above, section 27(1)(c)(iii) [sic] contemplates information in correspondence  
between a public body’s lawyer and any other person; the correspondence must be in  
relation to a matter in which involves the provision of advice or services by the lawyer.  
Here, the correspondence in question was between the Third Party and the Public Body’s lawyer.  
The correspondence was in relation to a matter, and the matter, from the perspective of the  
Public Body, involved the provision of legal services to the Public Body.  
However, the correspondence was itself not in relation to the provision of advice or other services  
by the lawyer; the correspondence was in relation to the legal status of certain organizations and  
what the correspondent thought the significance of that status might be. Nothing in the content  
of the emails suggests that the correspondence was prepared for the purpose of directing  
how the lawyer might use the information to provide advice to the public body, or that this  
was even contemplated. If there were a prior exchange of information which could lead me  
to conclude that the correspondence was prepared for this purpose, then this was not  
stated or explained to me.  
46  
To put this another way, I believe that the understanding of both parties to the correspondence  
must be that there is a matter involving the provision of advice or other services by the lawyer,  
and the correspondence is intended, if not to advance the matter, then to relate to that matter. For  
example, if a party were to send an offer of settlement to the lawyer of a public body, then such  
correspondence would be “in relation to a matter involving the provision of advice or other  
services” by the public body’s lawyer. However, if a third party sends correspondence to a public  
body’s lawyer and the third party does not contemplate that there is a matter involving the  
provision of a lawyer’s advice or services, then the correspondence cannot be said to be in  
relation to such a matter.  
That is not to say that a lawyer cannot obtain information on a confidential basis from a third party  
that the lawyer requires in order to provide advice or services. (Such information is typically  
covered by litigation privilege when it is obtained for the dominant purpose of preparing for  
litigation.) Rather, I mean that section 27(1)(c) is intended to allow parties to correspond freely in  
relation to matters about which they need to speak in order to allow the lawyer’s advice or  
services to be provided.  
In my view, the fact that a “matter” within the terms of section 27(1)(c) is one “involving the  
provision of advice or other services” by a lawyer, indicates that the legislature is referring to a  
“legal matter”, as this is the type of matter for which a lawyer might provide advice or services.  
The Canadian Oxford Dictionary offers the following definition of “matter,” where that term is used  
in a legal context: “Law: a thing which is to be tried or proved”.  
It also seems to me that section 27(1)(c) is intended to address correspondence in which  
at least one of the parties is in a position to require that the information in the  
correspondence be kept in confidence, or certainly, not to be entered into evidence in  
court. I say this because section 27(1)(c) would serve little purpose if the information in  
question (i.e. the information in the correspondence) is publicly available, or the sender  
has the power to disclose the information unilaterally and the fact that it was sent. The  
purpose of allowing a public body’s lawyers or agents to correspond freely without fear of  
interference (discussed above) would not be met if the sender could make the correspondence  
generally known. Again, here, there were no requests for, or assurances or expectations of  
confidentiality, or certainly, none that have been provided to me.  
[Order F2015-22, at paras. 115-121]  
[Emphasis added]  
[para 84]  
The question is whether the information contained in these 2 pages of correspondence  
falls within the terms of s. 27(1)(c)(ii). The heading of s. 27 of the FOIP Act is “Privileged information” and  
has been found to assist:  
I also note that the heading of section 27, of which section 27(1)(c) is a provision, is “Privileged  
Information”. Section 12(2)(c) of the Interpretation Act states that headings do not form part of the  
provision; however, jurisprudence establishes that headings can be evidence of legislative intent  
when a provision is ambiguous, despite provincial interpretation acts.  
Pierre-Andrꢀ Cꢁtꢀ notes the following on page 63 of his work, The Interpretation of Legislation in  
Canada:  
It is accepted today that headings and subheadings are part of a statute and thus  
relevant to its construction. Headings may help to situate a provision within the  
general structure of the statute: they indicate its framework, its anatomy. Headings  
may also be considered as preambles to the provisions they introduce. The  
heading is a key to the interpretation of the sections ranged under it.  
How much weight should headings be accorded? Some authorities maintain that  
headings may be looked at only where there is ambiguity in the enacting words. If these  
47  
cases are meant to suggest that headings may be ignored, such a method of statutory  
interpretation is no longer followed. Because they are part of the statute, they must be  
taken into consideration as part of the context, even where the enactment itself is clear.  
If one considers the context created by the heading of section 27, and also considers that  
sections 27(1)(a), 27(2), and 27(3) all address privileged information, it seems reasonably  
likely that sections 27(1)(b) and 27(1)(c) address similar kinds of information that are not  
necessarily caught by section 27(1)(a).  
[Order F2015-22, at paras. 122-124]  
[Emphasis added]  
[para 85]  
While the 2 pages of Records are clearly information in an email correspondence related  
to the choice of legal counsel to provide future legal services, the email is between employees of the  
Ministry of Justice and Solicitor General. There is no correspondence between an “agent” and “any other  
person” or correspondence between a lawyer of the Minister of Justice and Solicitor General and “any  
other person”:  
Section 27(1)(b) refers to information prepared by an agent or lawyer of the Minister of Justice  
and Attorney General, or an agent or lawyer of a public body. “Agent” is a term with many  
meanings. In broad terms, an agent can be a representative or a person who acts on behalf of, or  
at the direction of, another. However, in the context of the FOIP Act, “agent” cannot mean any  
representative of a public body, such as an employee. I say this because “employee” is  
defined in the FOIP Act and the definition includes both employees and those acting under an  
agency relationship with a public body, which suggests that the FOIP Act does not consider  
employees and agents to be the same thing unless the term “employee” is used. If a broad  
definition of “agent” had been intended, the legislature could have incorporated the already  
defined term, “employee” into the provision to better serve this purpose. In the facts before me,  
neither the Public Body nor EPS has argued or provided evidence to suggest that the employees  
who created records 3 – 10 and 29 – 30 were acting under an agency relationship with a public  
body or as lawyers of a public body when the information was created.  
[Order F2008-021, at para. 109]  
[Emphasis added]  
[para 86]  
Similarly, in this case, no person who was a party to the communications was identified  
as an agent. Though the record reveals what position was held by the senders and the recipients within  
Alberta Justice and Solicitor General and, on one page, Alberta Health, no evidence was provided by the  
Public Body to establish any of the correspondents were acting as lawyers for the Minister of Justice and  
Solicitor General or any public body within the terms of s. 27(1)(c)(ii). As discussed above, at para. 43, in  
the Pritchard and Campbell cases from the Supreme Court of Canada, there was a recognition that not  
every communication by a government lawyer will attract legal privilege:  
Owing to the nature of the work of in-house counsel, often having both legal and non-legal  
responsibilities, each situation must be assessed on a case-by-case basis to determine if the  
circumstances were such that the privilege arose. Whether or not the privilege will attach  
depends on the nature of the relationship, the subject matter of the advice, and the circumstances  
in which it is sought and rendered: Campbell, supra, at para. 50.  
[Pritchard, at para. 20]  
[Emphasis underlining in original]  
[para 87]  
Similarly, not all work undertaken by a senior government employee who happens to be a  
lawyer will fall within the terms of s. 27(1)(b) or (c) of the FOIP Act. I think the Pritchard rationale about  
in-house government lawyers doing policy or other non-legal work applies equally to where a person who  
is a lawyer, though not identified as an in-house counsel or a government lawyer, is doing policy,  
administrative or other non-legal work. Each case must be evaluated on a case-by-case basis with the  
Public Body adducing some evidence that the information in the record was prepared by or for a person  
acting in his/her capacity as a lawyer for the Minister of Justice and Solicitor General regarding the  
48  
“provision of legal services” or “in relation to a matter involving the provision of legal services” or “the  
provision of advice or other services by the Minister of Justice and Solicitor General or by the agent or  
lawyer.”  
[para 88]  
Exercising caution not to reveal the contents of the June 10, 2016 Records at Issue, my  
observations with respect to s. 27(1)(c)(ii) of the FOIP Act are as follows:  
1. The 2 pages of emails are the continuation of an exchange with respect to the process of  
selecting outside counsel to represent the Alberta government in the recovery of tobacco related  
health care costs litigation.  
2. The 2 emails originated from within the Ministry of Justice and Solicitor General and were  
authored by, or prepared for, senior employees of the Public Body and/or another public body.  
3. The information in this correspondence was not provided by either the person providing the legal  
service or a person who was preparing the information on behalf of or for the use of the provider  
of the legal services.  
4. Both pages were authored by senior officials within the Public Body who happen to be lawyers  
[QC] but there is no evidence that either were acting in the capacity as a “lawyer of the Minister of  
Justice and Solicitor General.”  
5. As the two individuals are “employees” of the Public Body, as defined in the FOIP Act, it is not  
appropriate to refer to either of them as “an agent” or “any other person.”  
6. There is nothing in the content of the records indicating that either the author or recipient intended  
the information to be confidential.  
7. The information in the correspondence has no substantive content with respect to legal advice or  
litigation, present or future, but is more appropriately characterized as principally administrative in  
nature relating to the selection process to prepare a recommendation for a Minister.  
8. The information in the Records is in relation to a matter involving the selection of counsel and the  
provision of future legal services but it is not “information in correspondence between an agent or  
lawyer of the Minister of Justice and Solicitor General and any other person in relation to a matter  
involving the provision of advice or other [legal] services.” It is information about the process of  
selecting outside legal counsel for the provision of future legal services, who are not a party to the  
correspondence.  
[para 89]  
The Public Body Initial Submission [2014] and Initial Submission [2016] were insufficient  
to demonstrate how the s. 27(1)(c)(ii) exception applies to the 2 pages where it has been claimed. After a  
careful review of the June 10, 2016 Records at Issue and all of the submissions, I find the Public Body’s  
response overall with respect to s. 27(1)(c)(ii) has led to ambiguity about any legitimate claim for seeking  
privilege for the 2 pages to which it has been applied. Therefore, I find the Public Body did not properly  
rely on the legal privilege exceptions in s. 27(1)(c)(ii) of the FOIP Act.  
[para 90]  
It is only after the first question is answered in the affirmative, in other words, that the  
Public Body has demonstrated that it properly relied on s. 27(1)(c)(ii) that I would turn to the second  
question; whether or not the Public Body has properly exercised its discretion in withholding the Records  
at Issue under the s. 27(1)(c)(ii) exception. Because the Public Body has not demonstrated that it has  
properly relied on this exception for the 2 pages [98, 129] of the Records at Issue over which it has been  
claimed, it is unnecessary to consider the Public Body’s exercise of discretion.  
[para 91]  
The Public Body has failed to provide clear, convincing and cogent evidence to discharge  
its burden of proof with respect to its reliance on any of the exceptions under s. 27. Therefore, I move on  
to consider the other exceptions applied by the Public Body to the pages of the June 10, 2016 Records at  
49  
Issue before considering whether or not to order the release of the 33 pages for which the Public Body  
has not properly relied on s. 27.  
ISSUE #2: Whether the Public Body properly relied on and applied the s. 24 exceptions,  
specifically s. 24(1)(a) and s. 24(1)(b)(i) of the FOIP Act, to the information in the June 10, 2016  
Records at Issue.  
A. Section 24(1)(a)  
[para 92]  
Section 24(1)(a) [information containing advice developed by or for a public body] has  
been applied, or partially applied, to 18 of the total 35 pages of Records [98, 129, 210, 258-261, 262-264,  
265-268, 645-648]. Under s. 71(1) of the FOIP Act, the Public Body has the burden to prove the  
Applicants have no right of access to the information that it withheld under s. 24.  
[para 93]  
The exception in s. 24(1)(a) of the FOIP Act reads as follows:  
24(1) The head of a public body may refuse to disclose information to an applicant if the  
disclosure could reasonably be expected to reveal  
(a) advice, proposals, recommendations, analyses or policy options developed by or for a  
public body or a member of the Executive Council,  
[para 94]  
With respect to s. 24, there are two questions. The first question is whether or not the  
Public Body has properly relied on s. 24 and, if so, the second question is whether or not the Public Body  
has properly applied s. 24. In addressing the first question, I conducted a line-by-line review of all 18  
pages where the Public Body has relied on s. 24(1)(a) with the following in mind:  
In previous orders, the Commissioner has stated that the advice, proposals, recommendations,  
analyses or policy options under section 24(1)(a), and consultations or deliberations under  
section 24(1)(b) should:  
1. be sought or expected, or be part of the responsibility of a person by virtue of  
that person’s position,  
2. be directed toward taking an action,  
3. be made to someone who can take or implement the action. (Order 96-006, at  
p.10)  
In Order F2013-13, the adjudicator stated that the third arm of the above test should be restated  
as “created for the benefit of someone who can take or implement the action” (at paragraph  
123).  
The first step in determining whether section 24(1)(a) and/or (b) were properly applied is to  
consider whether a record would reveal advice, proposals, recommendations, analyses, or  
policy options (section 24(1)(a)), or consultations or deliberations between specified  
individuals (section 24(1)(b)). Neither section 24(1)(a) nor (b) apply to a decision itself (Order 96-  
012, at paras. 31 and 37).  
…
Further, sections 24(1)(a) and (b) apply only to the records (or parts thereof) that reveal  
substantive information about which advice was sought or consultations or deliberations  
were being held. Information such as the individuals involved in the advice or consultations,  
dates, and information that reveals only the fact that advice is being sought or consultations held  
(and not the substance of the advice or consultations) cannot generally be withheld under section  
24(1) (see Order F2004-026, at para. 89).  
[Order F2014-29, at paras. 72-74, 79]  
[Emphasis added]  
50  
[para 95]  
In order to allow for substantive exchange within government, the s. 24 exception is  
intended to permit the Public Body to refuse access to information if the disclosure could reasonably be  
expected to reveal advice, proposals, recommendations, analyses or policy options developed by or for a  
public body or a member of the Executive Council.  
In my view, section 24(1) does not generally apply to records or parts of records that in  
themselves reveal only any of the following: that advice was sought or given, or that  
consultations or deliberations took place; that particular persons were involved in the  
seeking or giving of advice, or in consultations or deliberations; that advice was sought or  
given on a particular topic, or consultations or deliberations on a particular topic took  
place; that advice was sought or given or consultations or deliberations took place at a  
particular time. There may be cases where some of the foregoing items reveal the content of the  
advice. However, that must be demonstrated for every case for which it is claimed.  
…
I turn to the second of the Public Body’s points (discussed at paragraph 69 above), that the  
names of public servants who participated in a discussion must be kept confidential to ensure  
they are not dissuaded from participating in certain kinds of discussions. I accept that the policy  
behind the rules is to allow a free discussion. However, in my view the rule achieves this  
policy by shielding the substance of the discussions. Sections [sic] 24(1)(a) does not permit  
the withholding of who gave advice; it permits the withholding of advice. In my view the words  
“reveal advice” means ‘reveal what the advice was’, [sic] Similarly, with respect to section  
24(1)(b), “reveal ... consultations or deliberations” means ‘reveal what the consultations or  
deliberations were’.  
I acknowledge there may be circumstances where a public servant’s participation in certain kinds  
of discussions may give rise to criticism. Despite this, I do not accept that the words of section  
24(1) are intended to shield from exposure the very fact that consultations or deliberations  
between particular officers or employees took place, or took place about a particular topic,  
on the basis that this may dissuade public servants from participating in discussions of  
particular subjects. Where a person consults or is consulted on a given subject as a  
function of their office, and the application of section 24 is claimed on the basis that they  
are officers or employees of a public body, the very fact they participated in the  
consultation cannot, in my view, be withheld under section 24 unless this fact also reveals  
the substance of the consultation.23 If there is something in such a disclosure that could give rise  
to an unreasonable invasion of the personal privacy of such employees, that is a consideration to  
be addressed under section 17, not section 24.24 I reject the Public Body’s argument that sections  
24(1)(a) and 24(1)(b) permit withholding of a document or a portion of a document that would  
reveal only that an individual participated in a discussion. This reasoning applies as well to the  
parts of the correspondence that contain non-substantive content (for example, cover documents  
that convey the advice, or parts of the bodies of e-mail exchanges indicating only that comments  
are being sought or provided).  
[Order F2004-026, at paras. 71, 75-76; See also Order F2008-028, at para.181 and Order F2014-  
R-01, at para. 82]  
[Emphasis underlining in original; Other emphasis added]  
[para 96]  
For a public body to be able to withhold information pursuant to s. 24(1)(a) of the FOIP  
Act, the following criteria must be met:  
In order to refuse access to information under section 24(1)(a) of the Act, on the basis that it  
could reasonably be expected to reveal advice, proposals, recommendations, analyses or policy  
options – which I often shorten in this Order to “advice, etc.”– the information must meet the  
following criteria: (i) be sought or expected from, or be part of the responsibility of a person,  
by virtue of that person’s position, (ii) be directed toward taking an action, and (iii) be  
made to someone who can take or implement the action (Order 96-006 at p. 9 or para. 42;  
Order F2004-026 at para. 55).  
51  
[Order F2008-028, at para. 176]  
[Emphasis added]  
[para 97]  
The Public Body’s access to information decisions (First Applicant: August 31, 2012 and  
Second Applicant: September 21, 2012) did three things: reported the number of pages for the Records  
at Issue in the main Inquiry (then 564 pages), indicated it had severed the Non-Responsive information  
and referred to the exceptions that have been applied in severing the responsive record. Of course,  
these access to information decisions were about the Records at Issue in the main Inquiry (564 pages)  
not specifically in relation to the June 10, 2016 Records at Issue (35 pages). Indeed, at that point, 18 of  
the 38 pages of the June 10, 2016 Records at Issue were designated by the Public Body as Non-  
Responsive and 4 of the 35 pages were not listed in the FOIP Request List of Exemptions, which  
accompanied the access to information decision letters to the Applicants. As a result, therefore, the 2012  
access to information decisions were only in relation to 16 pages of the June 10, 2016 Records at Issue  
still at issue. In its access to information decisions, the Public Body did cite the 6 exceptions (sections 16,  
17, 21, 24, 25 and 27) that it relied on in making its decisions about these 16 pages but did not provide  
any particulars about which subsection of those exceptions it was relying on or any reasons as to how or  
why it had applied the specific exceptions to any of the pages of records.  
[para 98]  
In an inquiry, the onus rests with a public body, pursuant to s. 71(1), to prove an applicant  
does not have the right of access to all or part of a record. The Public Body Initial Submission [2014] took  
a minimalist approach in explaining its reliance on s. 24 amounting to little more than a mere recitation of  
the wording of the exception. The evidence attached to those submissions includes affidavits from two  
FOIP employees whose depositions are largely restricted to the applicability of s. 27 legal privilege with  
one exception: the affidavit of the FOIP Director devotes one paragraph to s. 24 but again relies on a  
summation of the exception’s statutory wording. Equally problematic is that some of the pages where s.  
24(1)(a) has been claimed were not included in the FOIP Request List of Exemptions (as discussed  
above), which was attached to the affidavit of the FOIP Director. This means the affidavits were not  
sworn in relation to 20 of the 35 pages and leaves me with the task of trying to discern from the  
information in the records themselves whether s. 24(1)(a) comes within the terms of the exception.  
[para 99]  
At para. 26 of its Initial Submission [2016], the Public Body stated the purpose of s. 24 is  
“to allow persons having responsibility to make decisions to freely and frankly discuss the issues before  
them in order to arrive at well-reasoned decisions without fear of their discussions being made public.”  
The Public Body referred to Order F2015-34, which cited a former Commissioner who said:  
When I look at section 23 [s. 24 was formerly s. 23] as a whole, I am convinced that the purpose  
of the section is to allow persons having the responsibility to make decisions to freely discuss the  
issues before them in order to arrive at well-reasoned decisions. The intent is, I believe to allow  
such persons to address an issue without fear of being wrong, “looking bad” or appearing  
foolish if their frank deliberations were to be made public. Again, this is consistent with  
Ontario and British Columbia. I therefore believe a “consultation” occurs when the views of one or  
more officers or employees is sought as to the appropriateness of particular proposals or  
suggested actions. A “deliberation” is a discussion or consideration, by the persons described in  
the section, of the reasons for and against an action. Here again, I think that the views must  
either be sought or be part of the responsibility of the person from whom they are sought and the  
views must be sought for the purpose of doing something, such as taking an action, making a  
decision or a choice.  
[Order 96-006, at p. 10; Order upheld on Judicial Review]  
[Emphasis added]  
[para 100]  
The following is my summary of the criteria historically applied to the information for both  
s. 24(1)a) and s. 24(1)(b):  
1. either sought or expected from, or be part of the responsibility of a person from whom they  
are sought, by virtue of that person’s position;  
52  
2. be sought for the purpose of doing something, directed toward taking an action or making a  
decision, and  
3. be made for or involve someone who can take or implement the action.  
[para 101]  
I begin with the third criterion, which is in bold. My emphasis is on the third criterion to  
highlight the fact that this issue was considered in the ruling in Covenant Health v. Alberta (Information  
and Privacy Commissioner, 2014 ABQB 562 [Covenant Health]. The Court held that to insist on one of  
the persons authoring the information to have the authority to take or implement an action may be overly  
restrictive. In the Covenant Health decision, Justice Wakeling said the following in a footnote within his  
decision:  
The Commissioner prefers a much narrower approach. Her preferred approach limits the scope  
of the undefined terms by these limitations: “To fall within section 24(1)(b) the consultations or  
deliberations must be (i) sought or expected to be part of the responsibility of a person, by virtue  
of that person’s position, (ii) directed toward taking an action, and (iii) made to someone who can  
take or implement the action”. Alberta Justice and Attorney General, Order F 2007-021, ¶67. This  
definition is too restrictive. It is not consistent with the rest of the paragraphs in s. 24(1) which are  
drawn in broad language. There is no basis to insist that one of the persons in the group has the  
authority to “take or implement an action”.  
[Covenant Health, at footnote 87]  
[para 102]  
I agree. The more restrictive approach is unrealistic in terms of how decisions are  
formulated and reached within the senior echelons of government. Often those individuals preparing  
advice are the decision-makers themselves but not always, and it would be overly restrictive to require  
those preparing advice for a decision to also be the ones who necessarily take or implement action.  
Where the information records a person or persons who have the responsibility to provide advice, consult  
or participate in deliberations, as part of their position, and who can or may be able to take the requisite  
action or create the information for the benefit of someone who can take or implement the action, that  
should suffice. As the Adjudicator said in Order F2013-13, at para. 123, the third part of the test should  
be restated as “created for the benefit of someone who can take or implement the action.”  
[para 103]  
The Supreme Court of Canada has provided guidance as to the rationale underlying the  
‘advice and recommendations’ exception in the Ontario analogous s. 13 exception to Alberta’s s. 24  
stressing the operational importance of information, which if disclosed, could have a disparate impact on  
government credibility and effectiveness, as follows:  
In my opinion, Evans J. (as he then was) in Canadian Council of Christian Charities v. Canada  
(Minister of Finance), 1999 8293 (FC), [1999] 4 F.C. 245, persuasively explained the  
rationale for the exemption for advice given by public servants. Although written about the  
equivalent federal exemption, the purpose and function of the federal and Ontario advice and  
recommendations exemptions are the same. I cannot improve upon the language of Evans J. and  
his explanation and I adopt them as my own:  
To permit or to require the disclosure of advice given by officials, either to other officials  
or to ministers, and the disclosure of confidential deliberations within the public service on  
policy options, would erode government’s ability to formulate and to justify its policies.  
It would be an intolerable burden to force ministers and their advisors to disclose  
to public scrutiny the internal evolution of the policies ultimately adopted.  
Disclosure of such material would often reveal that the policy-making process  
included false starts, blind alleys, wrong turns, changes of mind, the solicitation  
and rejection of advice, and the re-evaluation of priorities and the re-weighing of  
the relative importance of the relevant factors as a problem is studied more  
closely. In the hands of journalists or political opponents this is combustible  
53  
material liable to fuel a fire that could quickly destroy governmental credibility and  
effectiveness. [paras. 30-31]  
Political neutrality, both actual and perceived, is an essential feature of the civil service in Canada  
(Osborne v. Canada (Treasury Board), 1991 60 (SCC), [1991] 2 S.C.R. 69, at p. 86;  
OPSEU v. Ontario (Attorney General), 1987 71 (SCC), [1987] 2 S.C.R. 2, at pp. 44-45).  
The advice and recommendations provided by a public servant who knows that his work might  
one day be subject to public scrutiny is less likely to be full, free and frank, and is more likely to  
suffer from self-censorship. Similarly, a decision-maker might hesitate to even request advice or  
recommendations in writing concerning a controversial matter if he knows the resulting  
information might be disclosed. Requiring that such advice or recommendations be  
disclosed risks introducing actual or perceived partisan considerations into public  
servants’ participation in the decision-making process.  
Interpreting “advice” in s. 13(1) as including opinions of a public servant as to the range of  
alternative policy options accords with the balance struck by the legislature between the goal of  
preserving an effective public service capable of producing full, free and frank advice and the goal  
of providing a meaningful right of access.  
[John Doe v. Ontario (Finance), 2014 SCC 36 [John Doe], at paras. 44-46]  
[Emphasis added]  
[para 104]  
Many previous decisions under s. 24 (and its comparable sections in other Canadian  
jurisdictions) have imposed the more restrictive requirement; that the Public Body produce evidence to  
show that the advice or recommendation had been communicated to the decision-maker. But the  
Supreme Court of Canada in the same case also had this to say about that requirement under Ontario’s  
s. 13, the comparable ‘advice from officials’ exception:  
No words in s. 13(1) express a requirement that the advice or recommendations be  
communicated in order to qualify for exemption from disclosure. A public servant may engage in  
writing any number of drafts before communicating part or all of their content to another person.  
The nature of the deliberative process is to draft and redraft advice or recommendations until the  
writer is sufficiently satisfied that he is prepared to communicate the results to someone else. All  
the information in those earlier drafts informs the end result even if the content of any one draft is  
not included in the final version.  
Protection from disclosure would indeed be illusory if only a communicated document  
was protected and not prior drafts. It would also be illusory if drafts were only protected  
where there is evidence that they led to a final, communicated version. In order to achieve  
the purpose of the exemption, to provide for the full, free and frank participation of public servants  
or consultants in the deliberative process, the applicability of s. 13(1) must be ascertainable as of  
the time the public servant or consultant prepares the advice or recommendations. At that point,  
there will not have been communication. Accordingly, evidence of actual communication cannot  
be a requirement for the invocation of s. 13(1). Further, it is implicit in the job of policy  
development, whether by a public servant or any other person employed in the service of an  
institution or a consultant retained by the institution, that there is an intention to communicate  
any resulting advice or recommendations that may be produced. Accordingly, evidence of  
an intention to communicate is not required for s. 13(1) to apply as that intention is  
inherent to the job or retainer.  
[John Doe, at paras. 50-51]  
[Emphasis added]  
[para 105]  
This ruling has particular resonance in this Inquiry. Many of the pages of records where  
s. 24 has been relied upon are marked draft while others are not marked draft but are obviously, from  
reading them, not the final document. In addition, the information falling within the definitions of advice,  
proposals, recommendations, analyses or policy options is shared back and forth with modifications to the  
drafts between those responsible in preparation for making a recommendation to the decision-maker.  
54  
The information is not shared or communicated to the person who can implement the action with one  
record being the exception which constitutes the final version that was communicated (page 258).  
[para 106]  
I turn now to the first two criteria for s. 24(1)(a). First, the content of some of the pages of  
the records where s. 24(1)(a) has been applied reveals that those individuals participating in the  
exchange of advice have the clear responsibility in their respective positions within government, to  
engage in this kind of exchange. In the case at hand, despite the scarcity of evidence and submissions  
from the Public Body, I consider the records reveal information generated by or for senior employees  
tasked with providing the type of advice exchanged for the purpose of making this kind of a  
recommendation to a Minister(s) of the Crown. Making that recommendation is the advice to be provided  
after their deliberations. The final decision to implement their recommendation is, as is common, left to a  
member of the Executive Council.  
[para 107]  
Second, I find that for the purpose of the s. 24 criteria, the back and forth exchange  
between the named senior employees resulting in many drafts of a briefing note suffices as  
communication directed toward taking action, that action being to make a recommendation. In addition, in  
the case of one page of records (page 258), there is evidence that the recommendation has been  
communicated to the decision-maker and a decision made.  
The intent of section 24(1)(a) is to ensure that internal advice and like information may be  
developed for the use of a decision maker without interference. So long as the information  
described in section 24(1)(a) is developed by a public body, or for the benefit or use of a public  
body or a member of the Executive [Council], by someone whose responsibility it is to do so, then  
the information falls under section 24(1)(a).  
A consultation within the terms of section 24(1)(b) takes place when one of the persons  
enumerated in that provision solicits information of the kind subject to section 24(1)(a) regarding  
that decision or action. A deliberation for the purposes of section 24(1)(b) takes place when a  
decision maker (or decision makers) weighs the reasons for or against a particular decision or  
action. Section 24(1)(b) protects the decision maker’s request for advice or views to assist him or  
her in making the decision, and any information that would otherwise reveal the considerations  
involved in making the decision. Moreover, like section 24(1)(a), section 24(1)(b) does not  
apply so as to protect the final decision, but rather, the process by which a decision maker  
makes a decision.  
[Order F2015-29, at paras. 33-34]  
[Emphasis added]  
[para 108]  
This analysis leads me to conclude that the Public Body has properly relied on s. 24(1)(a)  
for the pages to which it has been applied. Whether it has been properly applied will be dealt with in  
detail below with respect to the exercise of discretion. It is worth noting as cited in para. 95 of this Order,  
however, that the exception is intended to allow the Public Body to withhold the advice itself not the  
decision made or the fact it was sought or given or by whom.  
[para 109]  
There are 2 pages [210, 211] in the Records at Issue where subsections of s. 24 are the  
only exceptions that have been applied to withhold the information for those 2 pages. These 2 pages are  
also an example where the Public Body has applied the exception to the records themselves, showing the  
exception claimed on the page and marking the portion of the information that has been redacted. For  
these 2 pages (where the s. 16 and s. 27 exceptions have never been claimed), the Public Body has  
severed some information pursuant to s. 24(1)(a) for page 210 and s. 24(1)(b)(i) for page 211 (one Index  
dated August 6, 2014 shows page 211 as partially released under s. 24(1)(a), which is being treated as  
another typographical error as s. 24(1)(b) is shown in all other indices). The 2 pages involve email  
exchanges between government employees regarding the preparation of documents regarding the  
selection of the tobacco litigation lawyers. In both instances, the pages have been appropriately  
redacted. That is, what has not been severed are names, positions, dates, and other administrative  
information.  
55  
[para 110]  
In the case of page 210, the information redacted falls clearly within the meaning of  
“advice, proposals, recommendations, analyses or policy options developed by or for a public body”  
coming squarely within the terms of s. 24(1)(a). I find that the Public Body has properly relied on s.  
24(1)(a) for page 210. This finding only relates to page 210. Page 211 will be considered below under s.  
24(1)(b)(i). The question of whether the Public Body has properly applied the exception will be  
considered below.  
[para 111]  
The remaining pages where s. 24(1)(a) has been relied on are more problematic given  
the multiple reliance on other exceptions, in particular, s. 27, which, as discussed above, does not apply.  
It is difficult to understand how the Public Body exercised its discretion under s. 24 given the sparse  
evidence and submissions provided. In addition, for all of the pages previously designated Non-  
Responsive where s. 24 has now been applied, there is nothing on the records showing where s. 24 has  
been applied to the information on each page. As indicated above, the only way to discern where s.  
24(1)(a) has been relied on and applied by the Public Body is to refer to the Amended Index [98, 129,  
210, 258-261, 262-268, 645-648]. How the Public Body applied the exception will be discussed below  
under the section on the exercise of discretion.  
[para 112]  
Given the Order for Reconsideration that follows, the Public Body will have the  
opportunity to make a new decision whether it is relying on and how it is applying s. 24(1)(a) to disclose or  
withhold some or all of the information on 18 pages of the June 10, 2016 Records at Issue. The Public  
Body will be required to conduct a line-by-line examination of the pages of records to properly redact the  
pages under s. 24(1)(a) if its decision is to withhold any of the information.  
B. Section 24(1)(b)(i)  
[para 113]  
Turning now to the second exception applied under s. 24. Section 24(1)(b)(i) [information  
if released could reasonably be expected to reveal consultations or deliberations involving officers or  
employees of a public body] has been applied, or partially applied, for 34 of the total 35 pages of Records  
[98, 99-102, 103-107, 113-119, 129, 211, 258-261, 262-264, 265-268, 645-648]. Under s. 71(1) of the  
FOIP Act, the Public Body has the burden to prove the Applicants have no right of access to the  
information that has been withheld under s. 24(1)(b)(i).  
[para 114]  
The exception in s. 24(1)(b)(i) of the FOIP Act reads as follows:  
24(1) The head of a public body may refuse to disclose information to an applicant if the  
disclosure could reasonably be expected to reveal  
…
(b) consultations or deliberations involving  
(i) officers or employees of a public body  
[para 115]  
“Consultations” and “deliberations” referred to in the exception are to be given their  
ordinary meaning.  
Is the information captured in record 11 properly categorized as “consultations” or “deliberations”  
within the meaning of s. 24(1)(b)? Webster’s Third New International Dictionary of the English  
Language Unabridged (1971) defines “consultation” as follows: “2: the act of consulting or  
conferring: a deliberation of two or more persons on some matter < the two firms were in ~ over  
the construction of the new airplane>”. Another highly reputable source, The Oxford English  
Dictionary (2d. ed. 1989), favors a slightly more formal meaning: “1. a. The action of consulting or  
taking counsel together; deliberation, conference ... 2. (with a and pl. a). A conference in which  
the parties consult and deliberate; a meeting for deliberation or discussion”. The American  
dictionary source defines “deliberation” this way: “2: a discussion and consideration by a number  
of persons of the reasons for and against a measure – often used in pl. <the house concluded its  
– and its members hurried home to mend political fences>”. The Oxford English Dictionary (2d  
ed. 1989) definition of “deliberation” presents a comparable meaning: “1. The action of  
56  
deliberating, or weighing a thing in the mind; careful consideration with a view to decision. ... 2.  
The consideration and discussion of the reasons for an [sic] against a measure by a number of  
councillors.”  
These dictionary meanings and the context of the enactment support the finding that a  
consultation or deliberation does not exist until two or more officers or employees of a  
public body discuss an issue which the public body may at some future time or must now  
resolve and the issue is one any or all of the officers or employees can reasonably be  
expected to discuss. The position the participants hold and other factors may be taken  
into account in the objective analysis.  
[Covenant Health, at paras. 142-143]  
[Emphasis added]  
[para 116]  
In order for a Public Body to properly withhold information pursuant to s. 24(1)(b)(i) of the  
FOIP Act, the following criteria must be met:  
Section 24(1)(b) of the Act gives a public body the discretion to withhold information that could  
reasonably be expected to reveal consultations or deliberations involving officers or employees of  
a public body, a member of the Executive Council, or the staff of a member of the Executive  
Council – which I often shorten in this Order to “consultations/deliberations”. A “consultation”  
occurs when the views of one or more of the persons described in section 24(1)(b) are  
sought as to the appropriateness of particular proposals or suggested actions; a  
“deliberation” is a discussion or consideration of the reasons for and/or against an action  
(Order 96-006 at p. 10 or para. 48; Order 99-013 at para. 48).  
The test for information to fall under section 24(1)(b) is the same as under section 24(1)(a)  
in that the consultations or deliberations must (i) be sought or expected from, or be part of  
the responsibility of a person, by virtue of that person’s position, (ii) be directed toward  
taking an action, and (iii) be made to someone who can take or implement the action  
(Order 99-013 at para. 48; Order F2004-026 at para. 57).  
Part (2) of the test under both sections 24(1)(a) and (b) is that the information must be  
directed toward taking an action. The information must relate to a suggested course of  
action, which will ultimately be accepted or rejected by the recipient (Order 96-006 at p. 8 or  
para. 39; Order 99-001 at para. 17; Order F2007-013 at para. 108). Taking an action includes  
making a decision (Order 96-019 at para. 120; Order F2002-028 at para. 29). However, sections  
24(1)(a) and (b) of the Act do not protect a decision itself, as they are only intended to protect the  
path leading to the decision (Order F2005-004 at para. 22; Order F2007-013 at para. 109).  
Section 24(1)(a) does not apply to the bare recitation of facts or summaries of information; facts  
may only be withheld if they are sufficiently interwoven with other advice, proposals,  
recommendations, analyses or policy options so that they cannot reasonably be considered  
separate or distinct (Order 99-001 at paras. 17 and 18; Order F2007-013 at para. 108). These  
same principles apply in the context of consultations/deliberations under section 24(1)(b) (Order  
96-006 at p. 10 or para. 50; Order F2004-026 at para. 78).  
[Order F2008-028, at paras. 177-180]  
[Emphasis added]  
[para 117]  
The test to be met under s. 24(1)(b)(i) is similar in nature to s. 24(1)(a), the distinction  
being whether the disclosure of the record could reasonably be expected to reveal advice, proposals,  
recommendations, analyses or policy options within the terms of s. 24(1)(a) versus consultations or  
deliberations within the terms of s. 24(1)(b)(i).  
The FOIP Guidelines and Practices 2009 (the FOIP Guidelines) offers the following definition of  
the terms included in s. 24(1)(a):  
57  
The exception provides specific coverage for advice, proposals, recommendations,  
analyses, and policy options developed by or for a member of the Executive Council.  
Advice includes the analysis of a situation or issue that may require action and the  
presentation of options for future action, but not the presentation of facts.  
Recommendations includes suggestions for a course of action as well as the rationale for  
a suggested course of action.  
Proposals and analyses or policy options are closely related to advice and  
recommendations and refer to the concise setting out of the advantages and  
disadvantages of particular courses of action.  
Under the above interpretation, advice, proposals, recommendations, analyses, and policy  
options are largely synonymous terms, and describe the information employees of a public body  
may provide to an individual or individuals empowered to make decisions on behalf of a public  
body, such as a member of the executive council, in order to assist that individual or individuals,  
to make decisions on behalf of a public body. The information in question will put forward a  
course of possible action or evaluate various courses of action, in relation to an area or issue  
where an individual or individuals responsible for making decisions on behalf of a public body, or  
a member of the executive council, is considering taking action, or could consider taking action.  
The interpretation put forward in the FOIP Guidelines is consistent with previous orders of this  
office, and recognizes the public interest that section 24(1)(a) is intended to protect.  
In Order 96-006, former Commissioner Clark considered the meaning of “consultations and  
deliberations” within the terms of section 24(1)(b). He said:  
When I look at section 23 as a whole, I am convinced that the purpose of the section is to  
allow persons having the responsibility to make decisions to freely discuss the issues  
before them in order to arrive at well-reasoned decisions. The intent is, I believe to allow  
such persons to address an issue without fear of being wrong, “looking bad” or appearing  
foolish if their frank deliberations were to be made public. Again, this is consistent with  
Ontario and British Columbia. I therefore believe a “consultation” occurs when the views  
of one or more officers or employees is sought as to the appropriateness of particular  
proposals or suggested actions. A “deliberation” is a discussion or consideration, by the  
persons described in the section, of the reasons for and against an action. Here again, I  
think that the views must either be sought or be part of the responsibility of the person  
from whom they are sought and the views must be sought for the purpose of doing  
something, such as taking an action, making a decision or a choice.  
I agree with the interpretation Commissioner Clark assigned to the terms “consultation”  
and “deliberation” generally. However, in my view, section 24(1)(b) differs from the section  
24(1)(a) in that section 24(1)(a) is intended to protect communications developed for a  
public body by an advisor, while section 24(1)(b) protects communications involving  
decision makers. That this is so is supported by the use of the word deliberation: only a  
person charged with making a decision can be said to deliberate that decision. Moreover,  
“consultation” typically refers to the act of seeking advice regarding an action one is  
considering taking, but not to giving advice in relation to it. Information that is the subject  
of section 24(1)(a) may be voluntarily or spontaneously provided to a decision maker for  
the decision maker’s use because it is the responsibility of an employee to provide  
information of this kind; however, such information cannot be described as a  
“consultation” or a “deliberation”. Put simply, section 24(1)(a) is concerned with the  
situation where advice is given, while section 24(1)(b) is concerned with the situation  
where advice is sought or considered.  
58  
A consultation within the terms of section 24(1)(b) takes place when one of the persons  
enumerated in that provision solicits information of the kind subject to section 24(1)(a) regarding  
that decision or action. A deliberation for the purposes of section 24(1)(b) takes place when a  
decision maker (or decision makers) weighs the reasons for or against a particular decision or  
action. Section 24(1)(b) protects the decision maker’s request for advice or views to assist him or  
her in making the decision, and any information that would otherwise reveal the considerations  
involved in making the decision. Moreover, like section 24(1)(a), section 24(1)(b) does not apply  
so as to protect the final decision, but rather, the process by which a decision maker makes a  
decision.  
In my view, the test the former Commissioner developed to assist in determining whether  
advice, proposals, recommendations, analyses and policy options have been developed  
by or on behalf of a public body for the purposes of section 24(1)(a), is not useful in  
determining whether information is subject to section 24(1)(b). I say this because it does  
not make grammatical sense to suggest that a consultation or deliberation would be made  
to someone who can take an action, given that only the person charged with making a  
decision can consult or deliberate regarding it. Moreover, I find that the test, as the Public  
Body has stated it, for determining whether section 24(1)(b) applies is arguably too narrow. There  
is no requirement in section 24(1)(b) that a decision maker consult with only those whose  
delineated responsibility or duty it is to provide advice to that decision maker. A consultation or  
deliberation falls under section 24(1)(b) so long as one of the individuals enumerated in section  
24(1)(b) consults or deliberates. However, unsolicited views regarding a decision will not fall  
under section 24(1)(b).  
…
The first step in determining whether section 24(1)(a) or (b) applies is to consider whether a  
record would reveal advice, proposals, recommendations, analyses, or policy options, in the case  
of section 24(1)(a), or consultations or deliberations involving specified individuals, in the case of  
section 24(1)(b).  
[Order F2012-10, at paras. 33-38, 40]  
[Emphasis added]  
[para 118]  
Where it has decided to apply this exception and exercise its discretion to withhold pages  
of records under s. 24, the Public Body must consider and weigh the interests at stake in choosing to  
withhold or disclose the information, including public interest.  
Applying the principles in Ontario (Public Safety and Security), a finding that section 24(1)(a) or  
(b) applies means that the public interest in ensuring that public bodies obtain candid  
advice may trump public or private interests in disclosing the information in question.  
After determining that section 24(1)(a) or (b) applies, the head of a public body must then  
consider and weigh the public and private interests in disclosure and non-disclosure in making  
the decision to withhold or disclose the information.  
Section 72(2)(b) of Alberta’s FOIP Act establishes that the Commissioner may require the  
head to reconsider a decision to refuse access in situations when the head is authorized to  
refuse access. A head is authorized to withhold information if a discretionary exception applies to  
information. Section 72(2)(b) provision states:  
72(2) If the inquiry relates to a decision to give or to refuse to give access to all or part of  
a record, the Commissioner may, by order, do the following:  
…
(b) either confirm the decision of the head or require the head to reconsider it, if  
the Commissioner determines that the head is authorized to refuse access…  
The disclosure analyst states that the following considerations were included in the  
decision to withhold information under sections 24(1)(a) and (b):  
59  
a) The impact the disclosure would reasonably be expected to have on the EPS’s ability  
to carry out similar decision-making processes in the future;  
b) That the release of the information could make consultations and deliberations  
between EPS members less candid, open and comprehensive in the future if members  
understood that such information would be made publicly available;  
c) That the members of the EPS had a reasonable expectation that their deliberations,  
consultations, advice, analyses and recommendations would be kept confidential;  
d) The objectives and purposes of the Act, including the Applicant’s right of access; and  
e) Whether the decision to release some information to the Applicant regarding the  
outcome of the disciplinary action would satisfy the need for public scrutiny.  
The factors the Public Body states it considered when it made its decision to withhold  
information from records 149 – 150 and 1284 – 1285 are in keeping with factors that should  
be considered when making the decision to exercise discretion under section 24(1)(a) and  
(b). However, the third factor to which the Public Body refers, that regarding  
confidentiality, is not so much an interest that is to be weighed in exercising discretion,  
but a factor that must be present in order to support withholding information under  
section 24(1). If the information to which a provision of section 24 is being applied is not  
intended to be confidential, or has not been kept confidential, then the public interest  
recognized by section 24(1) would not necessarily be served by withholding the  
information.  
…
I must therefore require the Public Body to reconsider its decision to withhold the information from  
records 149 – 150 and the first and second emails appearing on record 1225, by considering  
whether some of the information they contain may already be known to the public and to  
consider whether the purpose of sections 24(1)(a) or (b), is served by withholding it if that  
is so. Although I have found that the provisions of section 24(1) do not apply to some of the  
records to which the Public Body applied this provision, I will not order disclosure of these records  
as the Public Body has withheld the information they contain under section 17. However, as with  
all records and information withheld under section 17, these records are subject to my order that  
the Public Body make a new decision regarding the application of section 17.  
[Order F2013-13, at paras. 178-181, 186]  
[Emphasis added]  
[para 119]  
The importance of the zone of candid advice and consultation cannot be overstated. I  
am including both the advice and the consultations provisions in s. 24(1)(a) and s. 24(1)(b), when I refer  
to this zone. The legitimacy and importance of this zone to the effective operations of government has  
been recognized by including this exception in the legislation notwithstanding the overall goal of giving  
citizens the right of access to promote transparency and accountability. (Refer to John Doe, at paras. 44-  
46)  
[para 120]  
In the case of page 211, the information redacted falls clearly within the meaning of  
“consultations or deliberations involving…employees of a public body” coming squarely within the terms of  
s. 24(1)(b)(i). The information properly disclosed include dates, names, positions, and other  
administrative information. In the case of page 211, I find that the Public Body has properly relied on s.  
24(1)(b)(i) as the information, if disclosed, would reveal consultations and deliberations involving  
employees of a public body. The issue of whether the Public Body has properly applied this exception will  
be discussed below under the exercise of discretion.  
[para 121]  
A problem that arises in this case is that 20 of the 34 pages where s. 24(1)(b)(i) has been  
relied on are pages that were Non-Responsive Records when the access to information decisions were  
made. For 16 of the pages, the information was referred to as Non-Responsive in the Index and in the  
FOIP Request List of Exemptions that were attached to the FOIP Director’s affidavit and 4 of the pages  
were not listed at all. In the June 10, 2016 Index of Records these 20 pages were all designated as Non-  
Responsive.  
60  
[para 122]  
The remaining 14 pages (none of which have ever been designated Non-Responsive)  
where s. 24(1)(b)(i) has been relied on and applied are equally problematic though the exception has  
been consistently applied by the Public Body since the access to information decision. The problem  
arises because of the multiple reliance on other exceptions, in particular, s. 27 exceptions, which as  
discussed above, do not apply, and, except for page 211, there is no clarity as to what information the  
Public Body intends to specifically redact under s. 24(1)(b)(i).  
[para 123]  
Exercising caution not to reveal the contents of the June 10, 2016 Records at Issue, my  
observations with respect to s. 24(1)(a) and s. 24(1)(b)(i) of the FOIP Act are as follows:  
1. Some of the information in the records over which the s. 24 exceptions have been applied were  
created by a person or persons who, as part of his/her/their position, had the responsibility for  
producing the information.  
2. Some of the pages of the records were directed toward taking action: making a recommendation  
with respect to the choice of tobacco litigation lawyers to the decision-maker, a member of the  
Executive Council.  
3. Some of the information where s. 24 has been applied was sent and/or received by individuals  
who could make a recommendation to a decision-maker.  
4. Some of the pages of the records reveal information that consultations and deliberations took  
place and that advice was sought and given but only some of the pages of the records contain  
information that constitutes actual advice, proposals or recommendations or reveals the actual  
substance of the consultations or deliberations.  
5. There is nothing in the content of the records indicating that either the author or recipient intended  
the information to be confidential.  
6. The Public Body properly relied on s. 24(1)(a) on one page which it partially redacted [210], the  
disclosure of which could reasonably be expected to reveal advice, proposals, recommendations,  
analyses or policy options developed by or for a public body. The Public Body properly relied on  
s. 24(1)(b)(i) on one page which it partially redacted the page [211], the disclosure of which could  
reasonably be expected to reveal consultation or deliberations involving employees of the Public  
Body. The manner in which the Public Body redacted the records was compatible with the proper  
interpretation of s. 24, that is, the information released to the Applicants by the Public Body  
revealed that deliberations took place, when they took place and who was involved while the  
information severed contained the substantive part of the advice and consultations/deliberations.  
The question of whether or not the Public Body properly applied the exceptions will be dealt with  
below.  
7. None of the redacted information on pages 210 and 211 was reproduced in the Iacobucci Review  
Report or in the media releases submitted in evidence.  
8. Other than pages 210 and 211, all the other pages of records where s. 24 has been applied, no  
part of the information in the record was disclosed. That is explained because for these same  
pages the Public Body had also claimed the s. 27 legal privilege and/or the mandatory s. 16  
exceptions for the entire page in each case.  
9. The Public Body has provided no explanation as to how the s. 24 exception applied to the pages  
of records previously designated Non-Responsive as part of its preparation and processing of the  
pages of the June 10, 2016 Records at Issue in December 2016 when the exceptions were first  
applied.  
[para 124]  
Given the Order for Reconsideration that follows, the Public Body will have the  
opportunity to make a new decision after reconsidering its reliance on, and application of, s. 24(1)(b)(i) for  
61  
34 pages. This will entail a line-by-line review as to how the pages ought to be redacted, where  
appropriate, and what information can be disclosed all in accordance with this Order. Before turning to  
the final mandatory exception applied by the Public Body, it is incumbent on me to address the issue of  
whether the Public Body properly exercised its discretion when it applied both of the s. 24 exceptions.  
Exercise of Discretion under s. 24  
[para 125]  
Where it is established that a public body has properly relied on a discretionary exception  
[“may”], as in this case, it is imperative for me, as the External Adjudicator, to consider whether the Public  
Body has properly applied the exception.  
As discussed above, the “head” making a decision under ss. 14 and 19 of the Act has a discretion  
whether to order disclosure or not. This discretion is to be exercised with respect to the  
purpose of the exemption at issue and all other relevant interests and considerations, on  
the basis of the facts and circumstances of the particular case. The decision involves two  
steps. First, the head must determine whether the exemption applies. If it does, the head must  
go on to ask whether, having regard to all relevant interests, including the public interest in  
disclosure, disclosure should be made.  
The head must consider individual parts of the record, and disclose as much of the information as  
possible. Section 10(2) provides that where an exemption is claimed, “the head shall disclose as  
much of the record as can reasonably be severed without disclosing the information that falls  
under one of the exemptions”.  
(c) The Duty of the Reviewing Commissioner  
The Commissioner’s review, like the head’s exercise of discretion, involves two steps. First, the  
Commissioner determines whether the exemption was properly claimed. If so, the Commissioner  
determines whether the head’s exercise of discretion was reasonable.  
[Ontario (Public Safety and Security), at paras. 66-68; See also Order F2010-036, at para. 99]  
[Emphasis added]  
[para 126]  
What is the test for the proper exercise of discretion by a Public Body in applying a  
discretionary exception? In my opinion, it is necessary that the Public Body’s rationale for exercising its  
discretion to refuse access must be demonstrable and reasonable:  
Section 40(1)(ee) of the Act gives a public body the discretion to disclose an individual’s personal  
information. A public body’s rationale for exercising discretion in a particular way must be  
both demonstrable and reasonable, and it cannot abuse its discretion by making an  
arbitrary or irrational decision. Previous Orders of this Office have set out five types of abuse  
of discretion as follows: 1) where a delegate exercises his or her authority with an  
improper intention in mind, which includes acting for an unauthorized purpose, in bad  
faith, or on irrelevant considerations; 2) where a delegate acts on inadequate evidence or  
without considering relevant matters; 3) where the decision is unreasonable or  
discriminatory, creating an improper result; 4) where the delegate exercises his or her  
discretion on an erroneous view of the law; and 5) where a delegate fetters his or her  
discretion by rigidly adopting a policy which precludes a consideration of the individual  
merits of the case (see, e.g., Order 2000-021 at para. 51).  
[Order F2012-01, at para. 62; Upheld on Judicial Review]  
[Emphasis added]  
[para 127]  
Adjudicators and public bodies have found assistance from the literature as how best to  
describe a proper exercise of discretion to make a decision.  
In Hearings Before Administrative Tribunals, 2nd Edition1, McCauley and Sprague describe how  
discretion is to be exercised when a statute confers discretion to make a decision. They state:  
62  
When Parliament [the Legislature] gives a decision-maker the discretion to make a  
decision, it expects the decision-maker to make each decision on the basis of the  
circumstances in each individual case.  
If the Legislature [or Parliament] did not want this to be so it would not have granted the  
decision-maker discretion in the first place. It would have set out the circumstances and  
the thing to be done or authorized that those specifications be set out in regulation. The  
fact that Parliament granted the power in terms of a grant of discretion means that  
Parliament wanted the discretion to be exercised on a case-by-case basis.  
The underlying purpose in granting a decision-maker discretion is to guarantee flexibility  
and responsiveness in administrative decision-making. The decision-maker cannot  
frustrate this purpose by choosing to exercise that power on some other basis that the  
decision-maker feels is more efficient, effective or expeditious. The decision-maker must  
take its power as it gets it. The decision-maker will err if, rather than considering the  
[...] decision on a case by case basis, it simply applies or follows earlier developed  
procedure or policy without considering whether that policy is appropriate to the  
particular case. This is known as fettering discretion.  
Having to decide a matter on a case-by-case basis means that the decision-maker must  
apply his or her mind to each matter, and all the components of that matter, and decide  
each of those components on the basis of their merit in those circumstances. This means  
that the decision-maker must keep an open-mind on all aspects of the matter –  
procedural just as much as substantive – and decide what to do with the merits of each  
case.  
[Order F2014-23, at para. 71 referring to Robert W. McCauley and James L.H. Sprague,  
Hearings Before Administrative Tribunals 2nd Edition (Toronto: Thomson Canada Ltd. 2002) pp.  
5B-15 – 5B-16]  
[Emphasis added]  
[para 128]  
What has the Public Body submitted with respect to its access to information decisions  
and its exercise of discretion? The decision letters, issued to the Applicants in 2012 in response to the  
Applicants’ access to information requests, provide no insight with respect to how the Public Body  
exercised its discretion under s. 24. The decision letters were identical and read as follows (for ease, I  
reproduce again):  
564 pages of records were located in response to your request. Some of the records requested  
contain information that is exempted from disclosure under sections 16, 17, 21, 24, 25 and 27 of  
the Freedom of Information and Protection of Privacy Act or contain information non-responsive  
to your request. We have severed the exempted and non-responsive information so that we could  
disclose to you the remaining information in the records.  
[Decision/Order, at para. 11]  
[para 129]  
In my November 16, 2016 correspondence to the parties laying out the details regarding  
this phase of the Inquiry with respect to the June 10, 2016 Records at Issue, I said the following to the  
Public Body:  
The Public Body has the burden of proof to demonstrate it properly relied on and applied the  
exceptions claimed to withhold the June 10, 2016 Records at Issue from the Applicants [s. 71 of  
the FOIP Act]. In addition to evidence for any other exceptions it claimed in lieu of ‘non-  
responsive’, the Public Body is required to produce evidence demonstrating how the exceptions  
in s. 16, s. 24 and s. 27 of the FOIP Act apply to the June 10, 2016 Records at Issue;  
[para 130]  
The Public Body’s submissions were sparse with respect to s. 24. In its Initial  
Submission [2016] with respect to s. 24, the Public Body did state the purpose of the exception:  
63  
The purpose of section 24 is to allow persons having responsibility to make decisions to freely  
and frankly discuss the issues before them in order to arrive at well-reasoned decision without  
fear of their discussions being made public. [Order F2015-34, at para. 67]  
[Public Body Initial Submission [2016], at para. 26]  
[para 131]  
At paras. 27-28 of its Initial Submission [2016], the Public Body refers back to its Initial  
Submission [2014] where it quoted the text of s. 24, stating that the records described in the Amended  
Index includes information described in s. 24(1). There is no further explanation or any evidence as to  
how the Public Body exercised its discretion to withhold the information on these pages of records under  
s. 24(1)(a) and/or s. 24(1)(b)(i). The only submission that alluded to evidence was in relation to an  
exception not relied on by the Public Body. After quoting from (a) and (b) of s. 24(1) on which it had  
relied, the Public Body quoted a new exception under s. 24: s. 24(1)(c), which it cites and then adds two  
examples in parenthesis, which I have highlighted below:  
(c) positions, plans, procedures, criteria or instructions developed for the purpose of  
contractual or other negotiations by or on behalf of the Government of Alberta, or  
considerations that relate to those negotiations (which directly applies to the selection  
of external counsel and the negotiation of the Contingency Fee Agreement).  
The public body submits that it properly exercised its discretion to withhold information pursuant  
to s. 24.  
[Public Body Initial Submission [2016], at paras. 27-28]  
[Emphasis added]  
[para 132]  
The only exceptions claimed by the Public Body in the Amended Index for the June 10,  
2016 Records at Issue under s. 24 are s. 24(1)(a) and s. 24(1)(b)(i). There is no reference in any of the  
indices for the June 10, 2016 Records at Issue where the Public Body has relied on or applied s. 24(1)(c).  
Also, once again the Public Body uses the CFA as part of its submission with respect to the newly  
referenced s. 24(1)(c), pages which are not at issue in this phase. The Public Body has not put anything  
before me to explain why s. 24(1)(c) has suddenly been added in its submissions as an exception in this  
phase of the Inquiry despite having not included the exception in any of the amended indices. It would be  
highly inappropriate for me to consider the applicability of s. 24(1)(c). In this phase of the Inquiry, the  
issue is whether the Public Body has properly applied s. 24(1)(a) and s. 24(1)(b)(i) by taking into account  
factors specific to these records in exercising its discretion to withhold.  
I also note that the Court began its review of Order F2008-009 by stating that the Adjudicator’s,  
“...„one answer fits all‟ approach is not reasonable.” (at para 89). I take from this that the Court in  
the CPS decision would not approve of its own decision being understood as giving a set answer  
to matters involving access to police disciplinary records. Rather, it would see it as necessary that  
each request for police disciplinary records should take into account whatever factors particular to  
the case are relevant to whether the records or parts of them should be disclosed. Similarly,  
should a party ask to have a public body’s response to these access requests reviewed by this  
Office, each review must be looked at on a case-by-case basis. Nothing in the CPS decision  
should be taken to fetter the discretion of either the head of a public body or this Office. I believe  
to interpret this decision otherwise would be to do exactly what the Court said the Adjudicator in  
Order F2008-009 was wrong to do.  
[Order F2013-01, at para. 44]  
[para 133]  
In addition, the Public Body did not address s. 24 in its Reply Submission [2016]. The  
kind of analysis that is required, by way of example, is outlined in a case decided by the Alberta Court of  
Queen’s Bench:  
Section 24 of the Freedom of Information Act unequivocally states that the head of a public body  
may decide to disclose advice developed for a public body or the deliberations of a public body. A  
determination that information is advice or part of deliberations does not preclude disclosure.  
64  
Ontario v. Criminal Lawyers’ Association, 2010 SCC 23 (), [2010] 1 S.C.R. 815, 838. In  
exercising a s. 24 discretion the head of a public body must consider relevant legal principles and  
facts. Ontario v. Criminal Lawyers’ Association, [2010] 1 S.C.R. 815, 840-41 & 845-47.  
Covenant Health’s officer responsible for administering its obligations under the Health  
Information Act and the Freedom of Information Act explained the factors which prompted  
Covenant Health’s decision not to disclose some of the information in its records on account of s.  
24(1)(a) and (b):90  
In exercising discretion pursuant to section 24(1)(a) and (b) of the FOIP Act, I considered  
the following:  
a) The impact the disclosure would reasonably be expected to have on  
Covenant Health’s ability to carry out similar decision-making processes in  
the future;  
b) That the release of the information could make consultation and  
deliberations between members of staff less candid, open and  
comprehensive in the future if they understood that such information could  
be made publicly available;  
c) That the staff members had a reasonable expectation that their  
deliberations, consultations, advice, analyses and recommendations be  
kept confidential;  
d) The objectives and purposes of the Act, including the Applicant’s right  
of access; and  
e) Whether the information to release some information to the Applicant  
would satisfy any need for public scrutiny.  
The fourth item – the applicant’s right of access – indicates that Covenant Health understood that  
Ms. McHarg’s interests were important. Given that Ms. McHarg has clearly stated in her October  
11, 2011 letter why she wanted access, it is safe to assume that Covenant Health factored her  
interests into the final disclosure decision.  
The Freedom of Information Act does not require the delegate of the head of a public body  
making a s. 24 discretion decision to provide a comprehensive account of her reasoning  
process. An officer meets legislative expectations if she considers relevant legal  
principles and facts before making her decision. The Act’s goals are met if the head of a  
public body acts in good faith, demonstrates a solid grasp of the interests at stake and the  
relevant facts and makes a reasonable decision. The final decision, according to the Act,  
must be made by the public body. The adjudicator is not the ultimate decision maker.  
[Covenant Health, at paras. 149-152]  
[Emphasis added]  
[para 134]  
Unlike the Covenant Health case cited above, the factors considered by the Public Body  
in exercising its discretion under s. 24 in this case are unknown. I have no affidavit evidence or  
substantive submissions as to how the Public Body has exercised its discretion to withhold records under  
s. 24. The Public Body did provide one paragraph, referred to in para. 130 above, regarding the purpose  
of s. 24 but not specifically in relation to the exercise of its discretion. The Federal Court of Appeal,  
acting in its role as a reviewer (when a Commissioner is based on an Ombuds-model that has  
recommendation power only), laid out what information a public body needs to provide in order to enable  
a reviewing decision-maker to assess how a public body has exercised its discretion.  
If the reasons for decision are non-existent, opaque or otherwise indiscernible, and if the  
record before the administrative decision-maker does not shed light on the reasons why  
the administrative decision-maker decided or could have decided in the way it did, the  
requirement that administrative decisions be transparent and intelligible is not met:  
Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),  
65  
2011 SCC 62 (), [2011] 3 S.C.R. 708 at paragraphs 14 and 15 (adequacy of reasons is to  
be assessed as part of the process of substantive review and is to be conducted with due regard  
to the record; Public Service Alliance of Canada v. Canada Post Corp., 2011 SCC 57 (),  
[2011] 3 S.C.R. 572 and Alberta (Information and Privacy Commissioner) v. Alberta Teachers’  
Association, 2011 SCC 61 (), [2011] 3 S.C.R. 654 (within limits, the decision can be upheld  
on the basis of the reasons that could have been given).  
…
Fourth, under the Act, the decision-maker must assess whether any of the exemptions to  
disclosure apply to the information sought. But that is not the end of the analysis. Even though  
an exemption applies, the decision-maker nevertheless can exercise his or her discretion  
to disclose the material: Attaran v. Canada (Minister of Foreign Affairs), 2011 FCA 182  
(), [2011] F.C.J. No. 750.  
At a minimum, the reasons or the record should show that the decision-maker was aware  
of this discretion to release exempted information and exercised that discretion one way  
or the other.  
In this case, there is nothing in the reasons or the record on this point.  
[Leahy v. Canada (Minister of Citizenship and Immigration), 2012 FCA 227, at paras. 121, 133-  
135]  
[Emphasis added]  
Relevant Factors to Consider in the Exercise of Discretion  
[para 135]  
Given my finding that the s. 24 exceptions have properly been relied upon, the question  
is whether the Public Body has properly applied the exceptions. What are the factors to consider in  
deciding if a decision is reasonable?  
In IPC Order P-58/May 16, 1989, Information and Privacy Commissioner Linden explained the  
scope of his authority in reviewing this exercise of discretion:  
In my view, the head’s exercise of discretion must be made in full appreciation of the  
facts of the case, and upon proper application of the applicable principles of law. It is my  
responsibility as Commissioner to ensure that the head has exercised the discretion  
he/she has under the Act. While it may be that I do not have the authority to substitute my  
discretion for that of the head, I can and, in the appropriate circumstances, I will order a  
head to reconsider the exercise of his/her discretion if I feel it has not been done  
properly. I believe that it is our responsibility as the reviewing agency and mine as the  
administrative decision-maker to ensure that the concepts of fairness and natural justice  
are followed. [Emphasis added; p. 11.]  
…
The Commissioner may quash the decision not to disclose and return the matter for  
reconsideration where: the decision was made in bad faith or for an improper purpose; the  
decision took into account irrelevant considerations; or, the decision failed to take into  
account relevant considerations (see IPC Order PO-2369-F/February 22, 2005, at p. 17).  
[Ontario (Public Safety and Security), at paras. 69, 71; See also Order F2010-036, at para. 99]  
[Emphasis underlining in original; Other emphasis added]  
[para 136]  
In its access to information decisions and in its submissions, the Public Body failed to  
reveal how it exercised its discretion under s. 24, what factors it considered including the objectives and  
purposes of the statute, or any other relevant interests and considerations including the public and private  
interests in disclosure and non-disclosure. The sole factor the Public Body addressed in its submissions,  
a general reference to the purpose of the exception, falls well short of the kind of criteria set out in Leahy.  
The Public Body appears to have focussed all of its attention on legal privilege and, in particular, the CFA  
(not at issue in this phase) to the exclusion of the other discretionary exceptions on which it was relying  
and the whole of the June 10, 2016 Records at Issue. There is no indication that these access requests  
66  
were considered on a case-by-case basis reviewing each line of the Record and how the two s. 24  
exceptions applied to the information on each page of the records. Without reasons or evidence, it is  
impossible to determine if the Public Body considered all relevant considerations with respect to the  
exercise of its discretion under s. 24, contrary to what it is required to provide.  
While the Public Body has provided an affidavit explaining the circumstances surrounding its  
decision to withhold the memorandum from the Applicant, as Order 98-016 indicates a public  
body should do, the affidavit does not establish that the Public Body considered relevant public  
and private interests weighing in favor of disclosure or nondisclosure when it made its decision to  
withhold the memorandum in its entirety. Moreover, the affidavit indicates that the refusal of  
Alberta Justice to give consent to disclosure, and the idea that there is no ability to access to  
Crown opinions, given that they are subject to exceptions under the FOIP Act, were determinative  
of the decision to deny access. However, as I have found above, these factors are not relevant to  
the exercise of discretion under section 27(1)(b). There is no indication that the arguments  
Alberta Justice made for the inquiry were ever made to the Public Body at the time when it was  
considering how to exercise its discretion, and the affidavit does not refer to these arguments.  
Moreover, Alberta Justice’s arguments do not refer to the contents of the records. Relying on a  
principle that it is always harmful to disclose Crown opinions, without regard to the  
content of the opinion or the circumstances under which an access request is made, does  
not give sufficient weight to section 20(6) of the FOIP Act and amounts to fettering  
discretion. I must therefore require the Public Body to reconsider its decision to withhold  
the memorandum from the Applicant and to consider only interests and factors that are  
established as relevant to the decision it must make.  
[Order F2014-22, at para. 47]  
[Emphasis added]  
[para 137]  
Turning to a possible factor that the Public Body should, in these circumstances, have  
considered in the exercise of its discretion: is the information already in the public domain? There is no  
evidence before me that at the time the Public Body made its access to information decisions in 2012, in  
response to the access to information requests, the information was in the public domain. However, since  
June 2016, the Public Body reconsidered its access to information decisions with respect to the pages of  
records in the June 10, 2016 Records at Issue (September 30, 2016 and December 14, 2016) but gave  
no indication that it had factored in the considerable amount of information from the June 10, 2016  
Records at Issue that may now be in the public domain, details of which will be outlined below. The  
circumstances in which the June 10, 2016 Records at Issue were provided to me should be remembered:  
counsel for the Public Body advised me that s/he had new instructions from the Ministry to provide the  
Commissioner’s Office with certain records that had been the subject of past access to information  
requests, which had recently been provided to the Ethics Commissioner (as a result of the publicly  
released Iacobucci Review Report about the Ethics Commissioner’s investigation). It is difficult to  
imagine that the Public Body was unaware of the possibility that some of the information was not already  
in the public domain. The fact that information in a record has come into the public domain is a relevant  
factor in making a decision whether or not to disclose the information, though not necessarily  
determinative, as it will always depend on the circumstances in each case.  
In Order F2007-003, in the context of determining whether the EPS properly refused to confirm or  
deny the existence of a record of the incident under section 12(2) of the Act, I addressed whether  
the fact information has been placed in the public domain was a relevant circumstance to be  
considered under section 17(5). I ordered the EPS to respond to the Applicant’s request without  
relying on section 12(2)(b) of the Act, in part because at least some information that would be  
revealed by disclosing any records that existed would already be in the public domain.  
The EPS produced the Report for my review in this inquiry. In that Report there is additional  
personal information beyond that made public in 1983. However, the fact that some of the  
personal information has come into the public domain is a relevant circumstance weighing  
in favour of disclosure of as much of the information in the Report as was formerly made  
67  
public. (However, as will be seen in the concluding section below, this is not a  
determinative factor for disclosing that information in this case.)  
[Order F2014-16, at paras. 55-56]  
[Emphasis added]  
[para 138]  
That the Public Body had to have made a decision after June 10, 2016 regarding the  
newly added exceptions applied to the newly included 20 pages of the June 10, 2016 Records at Issue is  
a fact as evidenced by the following: the Public Body disclosed 3 additional pages of records to the  
Applicants previously designated Non-Responsive [32, 120, 565], applied multiple exceptions to the  
remaining pages previously designated Non-Responsive for the first time, and amended the Index  
accordingly. This fact was confirmed by me in correspondence with the parties.  
1. Letter dated March 8, 2017 to all parties, in which I said:  
On January 19, 2017, the Public Body corresponded with me as the External Adjudicator  
with copies to the parties indicating that following the decision in the University of Calgary  
case, it reviewed the Index of Records for this Inquiry. As a result of that review, the  
Public Body made a decision to provide an updated Index of Records and an  
additional portion of the Records at Issue.  
2. Letter dated March 23, 2017 to the First Applicant, copied to all parties, in which I said:  
After the parties’ Initial Submissions were complete, the Public Body, specifically on  
January 19, 2017, advised that as a result of two rulings on legal privilege being released  
by the Supreme Court of Canada [SCC], notably on November 25, 2016, it decided to  
review and again amend the Index of Records and provide another portion of the  
Records at Issue to me. No further explanation was provided by the Public Body for its  
decision in this regard. I have confirmed in writing with all parties that the release of  
these two parts of the Records at Issue are in partial compliance with Order F2014-50.  
As was the case for the June 10, 2016 portion of Records at Issue, pages 551-564 that  
the Public Body has attested to being the Contingency Fee Agreement [CFA] were not  
included in the January 19, 2017 portion of the Records at Issue provided to me.  
[para 139]  
On April 7, 2017, the Public Body sent a letter of explanation in response to questions I  
had raised about the integrity of the June 10, 2016 Records at Issue because of some of the changes to  
the indices. In that letter, the Public Body wrote:  
In September 2016 the Public Body agreed to expand the records in the main inquiry (not  
the phase relating to the June 2016 records) to include drafts as well as records that went past  
December 2010. It did this by adding records ABJ000565 to ABJ002570 to the August 2014  
Index in the main inquiry. This action is not connected in any way to changing the specific  
documents physically provided to you in June 2016, which are the issue in this phase of the  
inquiry. As described above, the only significance of the decision to expand the records in  
the main inquiry was the renumbering of what in June 2016 had been identified 566-569 to be  
numbered as records ABJ000645-648 in the September 2016 and subsequent Indexes. [at p. 9]  
[Emphasis underlining in original; Other emphasis added]  
[para 140]  
With all due respect, this statement by the Public Body is not accurate and is misleading.  
Contrary to what the Public Body states, there is a significance that is relevant to this phase of the Inquiry  
arising out of the change of status of many of the documents. It is not just a matter of renumbering. It  
must be emphasized that 20 of the 35 pages of the June 10, 2016 Records at Issue had been designated  
Non-Responsive in the original June 10, 2016 Index of Records. That meant that 20 pages of the June  
10, 2016 Records at Issue were not, until December 2016, a responsive record when new pages were  
added and the designation of Non-Responsive was replaced with the exceptions being relied on by the  
Public Body. In my opinion, that is significant because, in fact, the change did expand what constituted a  
record in this phase of the Inquiry, not just in the main Inquiry. Discounting the 3 pages released to the  
68  
Applicants in September 2016 and June 2017, when Non-Responsive was removed and exceptions  
applied, this resulted in the June 10, 2016 Records at Issue increasing from 15 pages to 35 pages of  
responsive records.  
[para 141]  
At the time the Public Body made its decision with respect to the newly added pages of  
records, did the Public Body consider the extent to which the information in the June 10, 2016 Records at  
Issue is already in public domain? There is no evidence before me that the Public Body gave any  
consideration to whether any of the information contained in the records was in the public domain. Even  
after the Applicants provided submissions in this regard, the Public Body failed to address it in its Reply  
Submission [2016].  
I find that this is a factor that weighs heavily in favour of disclosing whether or not responsive  
records exist. The only factor weighing against confirming or denying the existence of records is  
section 17(4)(g). In my view, the personal information that would be disclosed if the Public Body  
confirms the existence of records (if any exist) is not sensitive information; it does not reveal  
anything definitive about Constable X, only a possible link between him and a book with which he  
has already been publicly linked. I find that the fact that this information is in the public  
domain outweighs the factor against confirming the existence of responsive records (if  
any exist). I therefore do not need to consider whether any other factors, such as section  
17(5)(a), weigh in favour of confirming or denying the existence of records.  
[Order F2015-28, at para. 37]  
[Emphasis added]  
[para 142]  
In that regard, once again, I refer to the information contained in the June 10, 2016  
Records at Issue that either has been directly quoted or referred to in the Iacobucci Review Report to  
which s. 24(1)(a) or s. 24(1)(b)(i) of the FOIP Act has been applied by the Public Body. In order not to  
reveal the contents of the June 10, 2016 Records at Issue I will not provide where in the Iacobucci  
Review Report the Records are quoted. I will, however, cite the pages of the Records:  
Section 24(1)(a)  
Quoted Pages: 129, 210, 259, 266, 646, 647  
Referenced Pages: 646, 647  
Section 24(1)(b)(i)  
Quoted Pages: 99, 100, 101, 114, 115, 129, 211, 259, 266, 646, 647  
Referenced Pages: 99-102, 103-107, 113-119  
[para 143]  
In addition, the Second Applicant provided copies of pages of the Records that were  
made public by a media outlet as part of his/her submissions. In order not to reveal the contents of the  
June 10, 2016 Records at Issue, I will not provide a corresponding date of the press article for each of  
the pages. The pages of Records that were published in the media the year before the June 10, 2016  
Records at Issue were included as part of the Second Applicant Initial Submission [2016], are as follows:  
Pages 100, 113, 114, 129, 258, 260, 265, 267, 646  
[para 144]  
This analysis of evidence has been provided to underscore the extent to which the  
information that has been withheld may already be known to the public either through the media in 2015  
or since the release of the Iacobucci Review Report on March 30, 2016. Both of these pre-date the  
Public Body’s decision to release the June 10, 2016 Records at Issue to the External Adjudicator and its  
production of the June 10, 2016 Amended Index of Records on December 14, 2016 to show its reliance  
on exceptions to replace the designation of Non-Responsive.  
[para 145]  
Counting only the pages of Records where information from the pages is reproduced (not  
just referenced) in media reports and is quoted in the Iacobucci Review Report for pages for where the s.  
24 exceptions have been relied on, the number of pages containing information that was in the public  
domain before June 10, 2016 is 17 of the total 35 pages are as follows:  
69  
Pages 99, 100, 101, 113, 114, 115, 129, 210, 211, 258, 259, 260, 265, 266, 267, 646, 647  
[para 146]  
Turning to the next factor to consider in the exercise of discretion in this case: public  
interest. In this case, the Public Body submitted it considered public interest in relation to exercising its  
discretion to withhold records pursuant to s. 27 but there is no evidence or submission that it did so in  
relation to s. 24. In providing guidance with respect to the requirement for a public body to weigh the  
public and private interests as relevant considerations in the exercise of its discretion in making a  
decision, the Supreme Court of Canada has stated the following:  
In making the decision, the first step the head must take is to determine whether disclosure could  
reasonably be expected to interfere with a law enforcement matter. If the determination is that it  
may, the second step is to decide whether, having regard to the significance of that risk and other  
relevant interests, disclosure should be made or refused. These determinations necessarily  
involve consideration of the public interest in open government, public debate and the proper  
functioning of government institutions. A finding at the first stage that disclosure may interfere  
with law enforcement is implicitly a finding that the public interest in law enforcement may trump  
public and private interests in disclosure. At the second stage, the head must weigh the public  
and private interests in disclosure and non-disclosure, and exercise his or her discretion  
accordingly.  
[Ontario (Public Safety and Security), at para. 48]  
[Emphasis added]  
[para 147]  
The Second Applicant pointed to a Supreme Court of Canada decision that weighed in on  
when it was appropriate for the head of a public body to consider a compelling public interest in disclosure  
when it is applying a discretionary exception, without the need to consider the public interest override (s.  
23 comparable section in Ontario).  
The public interest override in s. 23 would add little to this process. Section 23 simply  
provides that exemptions from disclosure do not apply “where a compelling public interest in the  
disclosure of the record clearly outweighs the purpose of the exemption”. But a proper  
interpretation of s. 14(1) requires that the head consider whether a compelling public  
interest in disclosure outweighs the purpose of the exemption, to prevent interference  
with law enforcement. If the head, acting judicially, were to find that such an interest  
exists, the head would exercise the discretion conferred by the word “may” and order  
disclosure of the document.  
The same rationale applies to the other exemptions under s. 14(1) as well as to those under s.  
14(2). Section 14(2)(a) is particularly relevant in the case at bar. It provides that a head “may  
refuse to disclose a record . . . that is a report prepared in the course of law enforcement,  
inspections or investigations by an agency which has the function of enforcing and regulating  
compliance with a law”. The main purpose of this section is to protect the public interest in  
getting full and frank disclosure in the course of investigating and reporting on matters  
involving the administration of justice; an expectation of confidentiality may further the  
goal of getting at the truth of what really happened. At the same time, the discretion  
conferred by the word “may” recognizes that there may be other interests, whether public  
or private, that outweigh this public interest in confidentiality. Again, an additional review  
under s. 23 would add little, if anything, to this process.  
[Ontario (Public Safety and Security), at paras. 49-50]  
[Emphasis added]  
[para 148]  
Had s. 27 applied to any of the pages of records, the Public Body would have been  
correct when it argued that the public interest in solicitor-client privilege trumps the public interest with  
respect to the right to access information. But there is no evidence the Public Body gave public interest  
any consideration in exercising its discretion under s. 24.  
70  
[para 149]  
With the Order for Reconsideration comes the opportunity for the Public Body to exercise  
its discretion properly, in accordance with this Order. Because of its all pervasive reliance on s. 27, the  
Public Body supplied little evidence attesting to how the Public Body exercised its discretion under s. 24  
of the FOIP Act. Some specifics in this regard may prove useful:  
1. For the pages designated Non-Responsive in the June 10, 2016 Index that have not been  
released [99-107, 113-119, 645-648], when the Public Body added the s. 24 exceptions to the  
Amended Index replacing the designation of Non-Responsive, nothing was added to or marked  
on the pages of Records. There are no redactions or exceptions noted on the pages. The only  
marking on each page is a diagonal line across the page with a handwritten Non-Responsive.  
2. When pages 645-648 were renumbered from 566-569 and the description changed from Non-  
Responsive to multiple exceptions under s. 16, s. 24 and s. 27, no redaction boxes or specific  
exception numbers were added to the pages of records.  
3. For 2 pages [210, 211], the Public Body has consistently relied on s. 24. These pages have never  
been designated Non-Responsive. On these 2 pages, there is a rectangular box around the  
redacted text and the exceptions under s. 24 handwritten in the top right hand corner of the page.  
4. For the remaining pages that have never been designated as Non-Responsive, there is a blue  
box drawn over the entire page including the page number with the exceptions handwritten in the  
top right corner. The exceptions handwritten in the top corner are consistent with the exceptions  
for the respective pages of records in the Amended Index but there is no evidence of what  
exceptions have been applied to what information.  
[para 150]  
This makes it impossible to see how the s. 24 exceptions have been applied to the  
information on the pages. For the pages of records where the s. 24 exceptions have been consistently  
claimed, there is still no evidence as to how the exceptions have been applied. The Public Body’s sparse  
submissions with respect to how it exercised its discretion for all 35 pages where the s. 24 exceptions  
have been claimed, including pages 210 and 211, are deficient resulting in me being unable to assess  
whether it has exercised its discretion properly. This lack of evidence as to how the Public Body  
exercised its discretion leads to a conclusion that the Public Body fettered its discretion by adopting a  
blanket assertion as to the application of the s. 24 exceptions (Refer to para. 33 above citing Suncor at  
para. 34).  
In Order 96-017, the former Commissioner reviewed the law regarding a Commissioner’s  
authority to review the head of a public body’s exercise of discretion and concluded that section  
72(2)(b), (then section 68(2)(b)), was the source of that authority. He commented on appropriate  
applications of discretion and described the evidence necessary to establish that discretion has  
been applied appropriately.  
A discretionary decision must be exercised for a reason rationally connected to the  
purpose for which it’s granted. The court in Rubin stated that “Parliament must have  
conferred the discretion with the intention that it should be used to promote the policy and  
objects of the Act…”  
The court rejected the notion that if a record falls squarely within an exception to  
access, the applicant’s right to disclosure becomes solely subject to the public  
body’s discretion to disclose it. The court stated that such a conclusion fails to  
have regard to the objects and purposes of the legislation: (i) that government  
information should be available to the public, and (ii) that exceptions to the right of  
access should be limited and specific.  
In the court’s view, the discretion given by the legislation to a public body is not  
unfettered, but must be exercised in a manner that conforms with the principles  
71  
mentioned above. The court concluded that a public body exercises its discretion  
properly when its decision promotes the policy and objects of the legislation.  
The Information and Privacy Commissioners in both British Columbia and Ontario have  
also considered the issue of a public body’s proper exercise of discretion, both in the  
context of the solicitor-client exception and otherwise. In British Columbia, the  
Commissioner has stated that the fundamental goal of the information and privacy  
legislation, which is to promote the accountability of public bodies to the public by  
creating a more open society, should be supported whenever possible, especially  
if the head is applying a discretionary exception (see Order No. 5-1994, [1994]  
B.C.I.P.C.D. No. 5)...  
...  
In Ontario Order 58, [1989] O.I.P.C. No. 22, the Commissioner stated that a head’s  
exercise of discretion must be made in full appreciation of the facts of the case and upon  
proper application of the applicable principles of law. In Ontario Order P-344, [1992]  
O.I.P.C. No. 109, the Assistant Commissioner has further stated that a “blanket”  
approach to the application of an exception in all cases involving a particular type of  
record would represent an improper exercise of discretion.  
I have considered all the foregoing cases which discuss the limits on how a public body  
may exercise its discretion. In this case, I accept that a public body must consider the  
objects and purposes of the Act when exercising its discretion to refuse disclosure  
of information. It follows that a public body must provide evidence about what it  
considered.  
In that case, the Commissioner found that the Public Body had not made any representations or  
provided any evidence in relation to its exercise of discretion. Further, he determined that the  
head must consider the purpose of the exception in the context of the public interest in disclosing  
information when exercising discretion. As the head of the Public Body had not provided any  
explanation for withholding information, the Commissioner ordered the head to reconsider its  
exercise of discretion to withhold information under a discretionary exception.  
Similarly, in Order F2004-026, the Commissioner said;  
In my view a Public Body exercising its discretion relative to a particular provision  
of the Act should do more than consider the Act’s very broad and general  
purposes; it should consider the purpose of the particular provisions on which it is  
relying, and whether withholding the records would meet those purposes in the  
circumstances of the particular case. I find support for this position in orders of the  
British Columbia Information and Privacy Commissioner. Orders 325-1999 and 02-38  
include a list of factors relevant to the exercise of discretion by a public body. In addition  
to “the general purposes of the legislation (of making information available to the public)  
the list includes “the wording of the discretionary exception and the interests which the  
section attempts to balance”. It strikes me as a sound approach that the public body must  
have regard to why the exception was included, and whether withholding the information  
in a given case would meet that goal.  
In my view, these approaches to review of the exercise of discretion are similar to that approved  
by the Supreme Court of Canada in relation to information not subject to solicitor-client privilege  
in Ontario (Public Safety and Security).  
[Order F2010-036, at paras. 102-104; See also [Ontario (Public Safety and Security), at paras.  
68-69; Order F2013-01, at para. 44]  
[Emphasis added]  
[para 151]  
On a review of all the Public Body’s submissions with respect to its exercise of discretion  
under s. 24 of the FOIP Act, I make the following observations:  
72  
1. In correspondence on November 16, 2016 in which I laid out the Inquiry process for this phase, I  
specifically asked the Public Body to provide evidence regarding reliance and application of the  
newly applied exceptions to previously labelled Non-Responsive pages of records. Despite this  
fact, the Public Body has failed to provide the evidence or submissions to enable me to discern or  
measure whether or how it exercised its discretion under s. 24.  
2. A total of 20 pages of the June 10, 2016 Records at Issue were originally designated Non-  
Responsive. When the Amended Index was produced by the Public Body with its Initial  
Submission [2016], s. 24 was added along with other exceptions to 20 of the total 35 pages. No  
new evidence or submissions were produced when this change was made, despite my request for  
the Public Body to provide me with evidence. The affidavits that formed part of the Public Body  
Initial Submission [2014] were evidence about the whole of the Records at Issue in the main  
Inquiry and not specifically in relation to the June 10, 2016 Records at Issue. It is critical to point  
out that the only evidence before me, the affidavits of the FOIP Director and FOIP Advisor  
provided as part of the Public Body Initial Submission [2014], would have been sworn in relation  
to a record that did not include these 20 pages as they had been deemed Non-Responsive. By  
designating them Non-Responsive at the time of the access to information decisions, the Public  
Body put them outside the scope of the Records at Issue in the Inquiry. The fact the Public Body  
did this is not at issue in this phase of the Inquiry as the matter has been referred to another  
forum. What is relevant during this phase of the Inquiry is that the Public Body has failed to  
provide evidence or submissions when it made a decision with respect to the exceptions it was  
relying on with respect to the previously designated Non-Responsive pages of records.  
3. The pages deemed Non-Responsive or that were not listed in FOIP Request List of Exemptions  
attached to the Public Body’s decision did not form part of the Records at Issue at the time the  
access to information decisions were made. All of the pages that were designated Non-  
Responsive, including the new pages added in June 2016 [565, 566-569 renumbered to 645-648],  
did not form part of the June 10, 2016 Records at Issue. When the Public Body provided the June  
10, 2016 Records at Issue to me, they added in the new pages [645-648] and continued to use  
the designation of Non-Responsive. By the time it provided its Initial Submission [2016] on  
December 14, 2016, the Public Body had to have made a decision: a decision with respect to  
those pages that had not up until then formed part of the Records at Issue. In the Index at Tab 1  
of its Initial Submission [2016], the Public Body listed the exceptions it was relying on for those  
pages previously designated Non-Responsive that it was withholding and indicated that it had  
disclosed 3 pages [32, 120, 565] to the Applicants. In doing so, however, the Public Body did not  
provide any new evidence or submissions about these newly added pages of Records as to how  
the s. 24 exceptions applied. In my opinion, this amounts to the Public Body fettering its  
discretion by applying a blanket refusal to release any records without actually providing any  
evidence to support its decision with respect to how the specific s. 24 exceptions claimed support  
its decision to refuse to disclose these newly added pages of records.  
4. It is impossible to know if the Public Body’s exercise of discretion has been reasonable and  
demonstrable. Because of the lack of care taken with the Records as to how the exceptions have  
been applied to the information on the pages of Records and the sparcity of submissions and  
evidence, the Public Body has not demonstrated how it exercised its discretion over the  
information and has not provided submissions to demonstrate whether its exercise of discretion  
was reasonable.  
5. With the exceptions noted below, the Public Body has failed to make it clear on the face of the  
pages of records where it has applied s. 24, what information it would withhold and what it would  
release because it did not meet the test: information that would reveal the substance of the advice  
or consultations: such as information that evidenced advice was sought or given or consultations  
took place, who was involved, the topic of the advice or consultation or when it took place.  
73  
6. The only exception where the Public Body has redacted the pages under the s. 24 exceptions are  
pages 210 and 211 where it withheld the substance of the advice and consultations while  
releasing the administrative information. The dearth of evidence or submissions make it  
impossible, even in the case of pages 210 and 211, to measure whether the Public Body’s  
exercise of discretion is reasonable because it is not discernible, apparent or demonstrable from  
what the Public Body has submitted.  
7. The Public Body made no reference to the objectives and purposes of the FOIP Act in its  
submissions, evidence or decision letters, including the right to access. While it did not put this  
into the context of how it exercised its discretion, the Public Body made a general reference to the  
purpose of one exception: s. 24 of the FOIP Act.  
8. The Public Body did not properly apply either of the s. 24 exceptions. In exercising its discretion, I  
find the Public Body failed to take into account relevant considerations. There is no evidence the  
Public Body considered the following relevant factors with respect to the exercise of its discretion  
under s. 24, some of which, in these circumstances, could have included:  
1. The objectives and purposes of the FOIP Act and the objectives of s. 24;  
2. The amount of the information in the pages or records already in the public domain  
(media reports and Iacobucci Review Report) in June 2016;  
3. Whether the employees of the Public Body had a reasonable expectation their  
consultations and deliberations would be confidential;  
4. The need to demonstrate how it made a decision with respect to the 20 pages of the June  
10, 2016 Records at Issue, which were previously designated Non-Responsive and,  
therefore, were not responsive records when the access to information decisions were  
made;  
5. The rationale for withholding the advice and consultations, not just in principle under s.  
24, but in these specific circumstances; and  
6. Public interest as a factor in exercising discretion in providing access to information as a  
consideration under s. 24. This factor is not in relation to the s. 32 override. That is, on  
the one hand, the need to balance the public interest in public bodies having the  
opportunity to obtain candid advice and undertake consultations in the zone, which may  
trump public or private interests in disclosing the information, or, on the other hand, the  
public interest in disclosing the information, which may trump the government interest to  
withhold.  
[para 152]  
It is not my role as an External Adjudicator to replace my exercise of discretion for that of  
the Public Body. Before turning to the terms of the Order for Reconsideration, I turn now to consider  
Issue #3 with respect to the s. 16 mandatory (non-discretionary) exception.  
ISSUE #3: Whether the Public Body properly relied on and applied s. 16(1)(a)(ii), s. 16(1)(b), and s.  
16(1)(c)(i) of the FOIP Act, to the information in the June 10, 2016 Records at Issue.  
[para 153]  
Section 16(1)(a)(ii), s. 16(1)(b), and s. 16(1)(c)(i) [must refuse release of information,  
supplied explicitly or implicitly in confidence, that would disclose business interests of a third party, the  
disclosure of which would cause significant harm] has been claimed for 31 of the total 35 pages of  
Records [99-102, 103-107, 113-119, 258-261, 262-264, 265-268, 645-648]. Under s. 71(1) of the FOIP  
Act, the Public Body has the burden to prove the Applicants have no right of access to the information  
that it withheld under s. 16. Once it establishes s. 16 applies, the Public Body must refuse to disclose the  
information as s. 16 is a mandatory exception. If the Public Body fails to establish that the exception  
applies, because the exception is mandatory, it is essential that the External Adjudicator apply the  
exception where the records themselves demonstrate that s. 16 applies if an Order to release records is  
being considered. If its application is unclear or ambiguous, before making a disclosure Order providing  
access to the information by the Applicants, the External Adjudicator must Order the Public Body to give  
Notice to the third party(ies) to seek their consent to the release of the information, or if they object and  
74  
make a Request for Review, the External Adjudicator must give the third party(ies) the opportunity to  
provide submissions in the Inquiry as to how s. 16 applies to their information.  
[para 154]  
The mandatory exception in s. 16(1) of the FOIP Act as relied on by the Public Body  
reads as follows:  
16(1) The head of a public body must refuse to disclose to an applicant information  
(a) that would reveal …  
…
(ii) commercial, financial, labour relations, scientific or technical information of a  
third party,  
…
(b) that is supplied, explicitly or implicitly, in confidence, and  
(c) the disclosure of which could reasonably be expected to  
(i) harm significantly the competitive position or interfere significantly with the  
negotiating position of the third party, …  
[para 155]  
In order for the s. 16 (formerly s. 15) exception to apply, two pre-conditions must be met:  
Section 15(1) requires that there be a “third party”. Under section 1(1)(r) [now s. 1(r)] of the  
Act, “third party” is defined to mean a person, a group of persons or an organization other than an  
applicant or a public body. The Applicant cannot therefore be a third party for the purposes of  
section 15(1).  
Furthermore, Section 15(1) of the Act appears in Part 1 of the Act, which deals with access to  
information. Section 15(1) presumes that an applicant has made a request for access to a third  
party’s “confidential business information”. As there has been no application for access to a  
third party’s “confidential business information” in this case, section 15(1) is not applicable.  
[Order 97-004, at para. 32-33]  
[Emphasis added]  
[para 156]  
Are the pre-conditions satisfied in this case? The language in both of the Applicants’  
access to information requests, with respect to the complete Records at Issue, is broad enough to  
encompass what may be third party business information, some of which may be considered confidential.  
In regard to the June 10, 2016 Records at Issue, a review of the 31 pages where s. 16 has been applied  
reveals some references to a third party(ies). There are no third party(ies) in this phase of the Inquiry.  
The third party(ies) did not receive notice from the Public Body as it had no intention to release the pages  
where s. 16 has been relied upon. The prima facie pre-conditions met, I go on to decide if the Public  
Body has satisfied the requisite parts of the three-part test set out in s. 16. It is well established law that  
the criteria set out in s. 16 is conjunctive; that is, one must meet one part of s. 16(1), meet s. 16(1)(b) and  
meet one of the criteria set out in s. 16(1)(c). An Adjudicator in a recent Alberta Order restates the  
appropriate analysis to be undertaken under s. 16:  
Order F2004-013 held that to qualify for the exception in section 16(1), a record must satisfy the  
following three-part test:  
Part 1: Would disclosure of the information reveal trade secrets of a third party or commercial,  
financial, labour relations, scientific or technical information of a third party?  
Part 2: Was the information supplied, explicitly or implicitly, in confidence?  
Part 3: Could disclosure of the information reasonably be expected to bring about one of the  
outcomes set out in s. 16(1)(c)?  
[Order F2016-65, at para. 24 referring to Order F2005-011]  
75  
[para 157]  
One point of clarification should be made. The Public Body has specifically claimed s.  
16(1)(c)(i) in most of the indices, though not for all pages in the Amended Index where s. 16 is listed. I  
will, therefore, consider s. 16(1)(c)(i) as the third criteria under the s. 16 analysis: could disclosure of the  
information reasonably be expected to bring about the outcome set out in s. 16(1)(c)(i). That is,  
reasonably expect to harm significantly the competitive position or interfere significantly with the  
negotiating position of the third party. The rationale behind the mandatory exception to disclosure is well  
understood:  
The purpose of mandatory exceptions to disclosure for the commercial information of third parties  
in access to information legislation is set out in Public Government for Private People: The Report  
of the Commission on Freedom of Information and Individual Privacy at page 313:  
The accepted basis for an exemption relating to commercial activity is that business  
firms should be allowed to protect their commercially valuable information. The  
disclosure of business secrets through freedom of information act requests would  
be contrary to the public interest for two reasons. First, disclosure of information  
acquired by the business only after a substantial capital investment had been made could  
discourage other firms from engaging in such investment. Second, the fear of disclosure  
might substantially reduce the willingness of business firms to comply with reporting  
requirements or to respond to government requests for information.  
This statement of the purpose of section 16 has been adopted in Orders F2009-028, F2010-036,  
F2011-001, and F2011-002 and found to be the rationale behind the mandatory exception to  
disclosure created by section 16 of the FOIP Act. In these orders, it was determined that  
section 16 is intended to protect specific types of proprietary information or “informational  
assets” of third parties from disclosure, so that businesses may be confident that they can  
continue to invest in this kind of information, and to encourage businesses to provide this  
kind of information to government when required.  
[Order F2012-06, at para. 48; See also Order F2014-44, at para. 20]  
[Emphasis added]  
[para 158]  
The purpose behind protecting the informational assets of businesses has been  
recognized by the Supreme Court of Canada:  
The exception in s. 16 attempts to draw a line between public information in the hands of public  
bodies that presumptively must be disclosed, and information of private bodies that comes into  
the hands of public bodies and may be entitled to protection from disclosure. As pointed out in  
Merck Frosst at para. 1 the FOIPP Act supports democratic values:  
Broad rights of access to government information serve important public purposes. They  
help to ensure accountability and ultimately, it is hoped, to strengthen democracy.  
“Sunlight”, as Louis Brandeis put it so well, “is said to be the best of disinfectants” (“What  
Publicity Can Do”, Harper’s Weekly, December 20, 1913, p. 10).  
However, Merck Frosst observes that exceptions like s. 16 involve a balancing of other interests:  
Providing access to government information, however, also engages other public and  
private interests. Government, for example, collects information from third parties for  
regulatory purposes, information which may include trade secrets and other confidential  
commercial matters. Such information may be valuable to competitors and disclosing it  
may cause financial or other harm to the third party who had to provide it. Routine  
disclosure of such information might even ultimately discourage research and innovation.  
Thus, too single-minded a commitment to access to this sort of government information  
risks ignoring these interests and has the potential to inflict a lot of collateral damage.  
There must, therefore, be a balance between granting access to information and  
protecting these other interests in relation to some types of third party information...  
76  
Nonetheless, when the information at stake is third party, confidential commercial and  
related information, the important goal of broad disclosure must be balanced with the  
legitimate private interests of third parties and the public interest in promoting innovation  
and development. The Act strikes this balance between the demands of openness and  
commercial confidentiality in two main ways. First, it affords substantive protection of the  
information by specifying that certain categories of third party information are exempt  
from disclosure. Second, it provides procedural protection. The third party whose  
information is being sought has the opportunity, before disclosure, to persuade the  
institution that exemptions to disclosure apply and to seek judicial review of the  
institution's decision to release information which the third party thinks falls within the  
protected sphere...  
An important part of the Commissioner’s mandate is to balance these interests, and his decisions  
in that respect are entitled to deference if they are reasonable. The Commissioner’s reasons,  
unfortunately, never explicitly refer to the balancing called for.  
[Imperial Oil Limited v. Alberta (Information and Privacy Commissioner, 2014 ABCA 231, at para.  
67]  
[Emphasis underlining in original]  
[para 159]  
The Public Body Initial Submission [2016] and Initial Submission [2014] with respect to  
how the records include information described in s. 16 are as follows:  
1. The example relied on by the Public Body is the CFA, which it states “directly affects the financial  
interests of the other party to it - the Province’s lawyers in the tobacco recovery litigation. The  
applicants refer to these lawyers being the successful group in obtaining the retainer from the  
Province to prosecute the tobacco recovery litigation.”  
2. The Public Body states “[t]he financial interests and competitive position of the Province’s chosen  
lawyers would be directly affected by the disclosure of the Contingency Fee Agreement.”  
3. The Public Body goes on to state that “[s]ome of the June 10, 2016 records contain information  
provided by other prospective law firms, and disclosure of that information could reasonably be  
expected to affect their financial interests and competitive position.”  
4. The Public Body takes the position that if there is any doubt about whether s. 16 applies, all of the  
outside lawyers should be given notice of the Inquiry and the opportunity to make submissions  
whether s. 16 applies to information relating to them.  
[Emphasis added]  
[para 160]  
If the Public Body, as here, had no intention of disclosing the pages because it argued  
the records were subject to legal privilege, it did not need to give notice to the third party(ies) under s. 16.  
In other words, where the Public Body has made a decision not to give the Applicants access to all or part  
of a record containing information about a third party, s. 71(3)(b) does not apply. Instead under s. 71(1)  
the Public Body bears the burden to prove the Applicants are not entitled to access. In order to satisfy  
the requirements under s. 16, the Public Body may, however, be required to solicit evidence from the third  
party(ies) to assist it in meeting the three-part test about the nature of the evidence [s. 16(1)(a)(ii)], the  
confidentiality requirement [s. 16(1)(b)] and the reasonable expectation of significant harm [s. 16(1)(c)(i)]  
unless this information is already known to the Public Body. There is no evidence that the latter is the  
case as the Public Body’s submissions do not specifically address the criteria as set out in s. 16. This  
evidence is necessary in order to enable the Commissioner or her delegate to discharge her duty of  
balancing the competing public interest in disclosure and the legitimate private interests of third party(ies).  
In my view, the Privacy Commissioner’s requirement for an evidentiary foundation withstands a  
somewhat probing examination. As discussed, the scope and intention of FOIPP presumes  
77  
access to information, subject only to limited exceptions, and the responsibility for establishing an  
exception rests with the party resisting access to the information.  
The requirement of some cogent evidence permits the Privacy Commissioner to discharge  
his duty of balancing competing interests and policy considerations by rationally  
assessing the likelihood of reasonable expectations of harm. To suggest that requiring  
some evidence is unreasonable means that access to information could be denied based solely  
on hypothetical possibilities, and that only the most preposterous theoretical risks could be  
rejected by the Commissioner.  
[Qualicare Health Service Corporation v. Alberta (Office of the Information and Privacy  
Commissioner), 2006 ABQB 515, at paras. 59-60]  
[Emphasis added]  
[para 161]  
I was concerned that the example relied on by the Public Body was the CFA, given it is  
not part of the June 10, 2016 Records at Issue, and given the s. 16 exception has not been relied on or  
applied by the Public Body to the pages designated as the CFA in the main Inquiry. As a result, I  
communicated with the Public Body, as stated above at para. 18, point 15, reproduced here for  
convenience:  
Given the Public Body’s reference in its Initial Submission [2016] to the CFA, by letters dated  
March 6, 2017 and March 23, 2017, I gave the Public Body the opportunity to provide these  
pages to me, along with a request to provide a further explanation about other pages that had  
been renumbered. The response from the Public Body was delayed due to unforeseen and  
unavoidable circumstances. An explanation of the renumbering was provided by the Public Body  
on April 7, 2017 attributing it to the addition of records, but it declined my suggestion to provide  
the pages of records 551-564, which it confirmed are the CFA. This is despite its reference to the  
CFA in its submissions with respect to s. 16 in this segment of the Inquiry. The Public Body failed  
to provide another example from the June 10, 2016 Records at Issue with respect to s. 16 when  
this was pointed out.  
[para 162]  
In its submissions, the Public Body has stated only that disclosure could reasonably be  
expected to affect the prospective law firms’ financial interests and competitive position when what is  
required is evidence of significant harm or significant interference. It is conceivable that this submission  
was intended to relate to the CFA and not specifically the pages of records presently at issue. The  
benefit of contacting the third party(ies) to secure the evidentiary base of harm or interference with its  
competitive position is one or all of the third party(ies) may have consented to the disclosure of the  
information. Thereafter, it would be unnecessary for the Public Body to meet the requirements of s. 16(1)  
because of the consent proviso in s. 16(3)(a) of the FOIP Act, which reads as follows:  
16(3) Subsections (1) and (2) do not apply if  
(a) the third party consents to the disclosure,  
[para 163]  
In this regard, one evidentiary submission from the First Applicant in its Initial Submission  
[2014], stated, at para. 31:  
On December 3, 2012, [name], then Managing Partner of [name of law firm], advised a local  
newspaper [s/he] had no formal objection to public release of the firm’s contract with the  
Government of Alberta.  
[Evidence of Calgary Herald article report attached to First Applicant Initial Submission [2014] at  
Tab 15]  
[para 164]  
The reference in the First Applicant Initial Submission [2014] is with respect to the CFA,  
which document is not part of this phase of the Inquiry. It is cited here as this may be indicative that at  
least one of the third party(ies) would provide its consent to the release of its information.  
78  
[para 165]  
In correspondence dated April 7, 2017, the Public Body stated the following:  
The Ministry would be pleased to provide further in-camera written submissions to you with  
respect to the applicability of s. 16 to the June 2016 records at issue. However, any such  
submissions would only relate to the June 2016 records themselves, and would not relate to the  
CFA (which is not one of the June 2016 records).  
[Public Body letter dated April 7, 2017, at p. 10]  
[para 166]  
Given the paucity of submissions from the Public Body as to how s. 16 applies to the 31  
of the 35 pages and given that s. 16 is a mandatory exception, part of my Order for Reconsideration will  
be an Order for the Public Body to reconsider its application of s. 16. I have provided the discussion  
below to assist the Public Body in that task. Should the Public Body decide to obtain evidence from the  
third party(ies) in order to show s. 16 has been properly applied (where the third party(ies) do not provide  
their consent) thereafter, if it considers the evidence should be provided to me in camera, the Public Body  
can make an application to me under the applicable in camera procedure.  
Part 1: Would disclosure of the information reveal trade secrets of a third party or commercial, financial,  
labour relations, scientific or technical information of a third party?  
[para 167]  
In order to fulfill s. 16(1)(a), three conditions must be met:  
1. the records must contain trade secrets, or commercial, financial, labour relations, scientific or  
technical information;  
2. the fact the disclosure must reveal this type of information means that the severed information  
must not already be in the public domain; and  
3. the records must contain information that is “of a Third Party” (Order F2004-013, at para. 11,  
quoting Order 99-008)  
[Order F2014-49, at para. 32]  
[para 168]  
Because of the sparse submissions provided by the Public Body and the absence of the  
specific application of the exceptions to the pages of records, I find it difficult to identify what parts of the  
information on the 31 pages may fit within the language of s. 16(1)(a). It is incumbent on me, however, to  
look at the aggregate of the June 10, 2016 Records at Issue to determine if they contain information that  
amount to commercial, financial, labour relations, scientific or technical information. A review of all of the  
31 pages for which s. 16 has been applied, however, the only possible categories that may apply are  
“financial” and/or “commercial.” It is important to remain cognizant of the fact that the June 10, 2016  
Records at Issue are a very small portion of the total records in the main Inquiry and may not be a  
snapshot of all that is contained in the complete and now expanded Records at Issue.  
[para 169]  
How have “financial” and “commercial” information’ been interpreted? Financial  
information is information belonging to a third party that is about its monetary resources: what are the  
third party’s monetary resources (assets and liabilities), and how are these monetary resources used and  
distributed.  
The Adjudicator in Order F2009-028, after reviewing orders from both this office and the Office of  
the Information and Privacy Commissioner of Ontario, stated:  
In Order 96-018, the former Commissioner adopted the following definition of “financial  
information” and determined that information is not the financial information of a third  
party for the purposes of section 16(1)(a) if the information does not allow an applicant to  
draw an accurate inference about a third party’s assets or liabilities, past or present:  
In keeping with my decision in Order 96-013, I attribute ordinary meaning to the  
word “financial”. I also reiterate that careful consideration must be given to the  
79  
content of the document in determining whether or not the information falls within  
this section. Financial information, in my opinion, is information regarding the  
monetary resources of the third party and is not limited to information relating to  
financial transactions in which the third party is involved.  
As such, the information in the record is not of a “financial” nature because it  
reveals nothing of the third party’s financial capabilities beyond its commitment to  
raise the dollar amount specified. Similarly, I find that the record reveals nothing  
of the third party’s assets or liabilities, either past or present.  
In Order MO-2496, an order of the Office of the Information and Privacy of Commissioner  
of Ontario, the Adjudicator considered the meaning of “commercial” and “financial”  
information as they appear in Ontario’s equivalent of the FOIP Act’s section 16. The  
Adjudicator stated:  
These terms have been defined in previous orders of this office as follows:  
...  
Commercial information is information that relates solely to the  
buying, selling or exchange of merchandise or services. This term  
can apply to both profit-making enterprises and non-profit  
organizations, and has equal application to both large and small  
enterprises [Order PO-2010]. The fact that a record might have  
monetary value or potential monetary value does not necessarily  
mean that the record itself contains commercial information [P-  
1621].  
Financial information refers to information relating to money and its  
use or distribution and must contain or refer to specific data.  
Examples of this type of information include cost accounting  
methods, pricing practices, profit and loss data, overhead and  
operating costs [Order PO-2010].  
In my view, Orders 96-013 and 96-018 of this office, and Order MO-2496 of the Office of  
the Information and Privacy Commissioner of Ontario, are essentially stating the same  
thing. “Commercial information” is information belonging to a third party about its buying,  
selling or exchange of merchandise or services. “Financial information” is information  
belonging to a third party about its monetary resources and use and distribution of its  
monetary resources.  
[Order F2014-49, at para. 34]  
[Emphasis added]  
[para 170]  
The Public Body references “financial” as the business-related information in the pages of  
records. Section 16 is intended to protect information that belongs to businesses often referred to as  
‘informational assets’; it is not meant to simply shelter information about a business.  
Orders of this office have taken the position that section 16 is intended to protect the  
informational assets, or proprietary information, of third parties that might be exploited by  
competitors in the marketplace if disclosed. In Order F2009-015, the Director of Adjudication  
made this point at paragraphs 46 – 47. Similarly, Orders F2009-007, F2009-028, F2010-036,  
F2011-002, F2011-011, F2012-06, F2012-17, F2013-17, F2013-37, F2013-47, and F2013-48  
also adopt the position that section 16 applies to protect the informational assets of third  
parties in situations where those assets have been supplied to government in confidence,  
and that harm could result from the disclosure of these informational assets.  
[Order F2014-44, at para. 19; See also Order F2015-22, at para. 36; Order F2016-65, at para. 34]  
[Emphasis added]  
80  
[para 171]  
Information about third parties deduced from proposals to provide legal services do not  
become commercial or financial information for the purposes of s. 16 until it has been accepted by the  
Public Body, for example, by becoming incorporated into the terms of an agreement.  
With regard to the proposed services and proposed fees, the information does not describe how  
Aon conducts commercial activities, such that it could be said to be commercial information  
belonging to it or an informational asset; rather the information is about the services Aon  
proposes to provide to the Public Body in the future and the price it is seeking, should the  
proposal it submitted be accepted. Once the terms of the proposal were accepted, and the Public  
Body and Aon negotiated a contract, the information about how it actually supplies the proposed  
services and fees to the Public Body could possibly be said to reveal something about Aon’s  
commercial activities; however, at the time Aon submitted the proposal, the services in question  
were a proposal only, rather than information about Aon’s actual commercial activities. Under  
section 16, information must meet the requirements of section 16(1)(a) when it is supplied by the  
Third Party within the terms of section 16(1)(b). As stated in Order F2010-36:  
Proposed terms, such as those in bids, tenders, and proposals, do not become the  
commercial information of an organization until a public body elects to accept  
them. Moreover, accepting proposed terms amounts to a form of negotiation, given that  
once a public body accepts the terms, the terms reflect what both parties have agreed to.  
[at para. 46]  
[Order F2014-44, at para. 29]  
[Emphasis added]  
[para 172]  
Despite the shortcomings of the Public Body’s preparation of the records to show the  
exceptions it has applied and how, I am able to identify business information about third party(ies) on  
some pages, details of which are outlined below. The pages where there is a reference to a company or  
members of that company, most of the information is demographic, such as the name of individuals  
working for the company (s. 17 has not been claimed for any of the June 10, 2016 Records at Issue).  
With respect to whether demographic business information is ‘commercial’, Adjudicator Cunningham  
stated:  
As was the case in Order F2010-036, I am unable to accept that the names of employees, their  
titles, and their business contact information constitute “commercial information” of a third party.  
[Order F2014-44, at para. 28]  
[para 173]  
On some of the pages where the Amended Index indicates s. 16 has been relied upon by  
the Public Body, the only information about a third party is the name of the business or corporate name.  
It is important to note the fact that the names of the law firms involved in the selection process were made  
public in the Iacobucci Review Report released on March 30, 2016 prior to the June 10, 2016 Records at  
Issue being provided to me. Regardless company names without any other information is not  
commercial or financial information within the terms of s. 16(1)(a).  
Having reviewed all the information severed under section 15(1)(a)(ii), I find that the severed  
information on all the foregoing pages, except page 30-3, meets the test for commercial or  
financial information of a third party. The severed information on page 30-3 is merely company  
names. I fail to see how company names, without anything more, would be commercial or  
financial information.  
[Order 96-012, at para. 10]  
[para 174]  
The Public Body’s submissions lack specificity as to what it identified as third party  
financial information contained in the June 10, 2016 Records at Issue that should be withheld. What I  
have been able to identify is as follows:  
Pages of records where s. 16 has been applied where there is a reference to a law firm or firms  
by name or acronym:  
81  
99, 100, 101, 103, 106, 113, 114, 115, 117, 118, 119, 210, 259, 260, 262, 263, 264, 266,  
267, 646, 647  
Pages of records where s. 16 has been applied with information that includes the name or  
acronym of a lawyer or lawyers:  
103, 106, 107, 117, 118, 119, 259, 260, 262, 263, 264, 266, 267, 646, 647  
Pages of records where s. 16 has been applied with information describing the strengths and  
weaknesses or factors of each of the prospective law firms [throughout the Records often referred  
to as “Appendix A: Differences and Pros/Cons” have had s. 16 applied]:  
100, 101, 103, 104, 105, 106, 115, 117, 118, 119, 259, 260, 262, 263, 264, 266, 267,  
646, 647  
The Public Body has relied on s. 16 on the following pages where there is no reference to a  
business or its information, where there is no law firm name or name of lawyers and/or there is no  
information from the Appendix A: Differences and Pros/Cons analysis and/or no information that  
would amount to an informational asset:  
102, 116, 261, 265, 268, 645, 648  
Pages of records where s. 16 has been applied where there is a reference to a law firm or firms  
by name but which pages do not include the name of a lawyer or lawyers or information from  
Appendix A: Differences and Pros/Cons:  
99, 258  
Page 32 of the Records was included with the package of June 10, 2016 Records at Issue when  
it was first provided to me but has, during this phase of the Inquiry, been released to the  
Applicants. This is an example of where the Public Body has not been consistent in its  
application of the mandatory exception s. 16. When page 32 was released to the Applicants, the  
name of a law firm was not redacted. Also, of interest, on page 210 there is the name of a law  
firm, which the Public Body has redacted under s. 24, not under s. 16. Notably, though not part of  
the Records at Issue in this phase of the Inquiry, in the information released to the Applicants in  
response to their access to information requests and in the release on September 30, 2016, there  
are pages where the name of a lawyer or a law firm have not been redacted (for example, page  
1734).  
Part 2: Was the information supplied, explicitly or implicitly, in confidence?  
[para 175]  
The information of a third party over which s. 16(1)(b) has been applied must have been  
supplied in confidence either explicitly or implicitly.  
In order for information to be implicitly supplied in confidence under section 16(1)(b), a third  
party must, from an objective point of view, have a reasonable expectation of  
confidentiality in regard to the information supplied. Furthermore, it is necessary to consider  
all the circumstances of the case including whether the information was:  
i) communicated to the public body on the basis that it was confidential and that it was  
kept confidential;  
ii) treated consistently in a manner that indicates a concern for its protection from  
disclosure by the third party prior to being communicated to the public body;  
iii) not otherwise disclosed or available from sources to which the public has access; or  
iv) prepared for a purpose which would not entail disclosure (Orders 99-018, 2000-010)  
82  
After a review of the submissions of the parties, I find that these four criteria are fulfilled. I find that  
the information that the Third Parties supplied to the Public Body was supplied in confidence and,  
for reasons previously discussed in this order, by extension, I find that the information that the  
Public Body created from this information regarding the Third Parties’ eligibility and the amount of  
the financial aid also fulfills these four criteria.  
[Order F2010-030, at para. 35-36]  
[Emphasis added]  
[para 176]  
This approach to determining whether the information has been supplied with an  
expectation of confidentiality has been found to be reasonable by the Alberta courts:  
Relying on BC Privacy Commissioner’s Order No. 01-36 (adopted in Alberta Privacy  
Commissioner’s Order 99-018), the Adjudicator stated that in order to establish that information  
was supplied to a public body in confidence, the factors to be considered include whether the  
information was:  
1. communicated to the public body on the basis that it was confidential and that it was to  
be kept confidential;  
2. treated consistently in a manner that indicates a concern for its protection from  
disclosure by the affected person prior to being communicated to the public body;  
3. not otherwise disclosed or available from sources to which the public has access;  
4. prepared for a purpose which would not entail disclosure. (para 79)  
The Adjudicator also observed that the test requires an “an objectively reasonable expectation  
of confidentiality”, which can be based either on express communication or other objective  
criteria that ground the expectation (para 85).  
[Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2012 ABQB 595,  
at paras. 32-33]  
[Emphasis added]  
[para 177]  
The Supreme Court of Canada has provided the appropriate analysis of what constitutes  
information supplied by a third party.  
What, then, are the governing legal principles?  
The first is that a third party claiming the s. 20(1)(b) exemption must show that the information  
was supplied to a government institution by the third party.  
A second principle is that where government officials collect information by their own observation,  
as in the case of an inspection for instance, the information they obtain in that way will not be  
considered as having been supplied by the third party. As MacKay J. said in Air Atonabee, at p.  
275:  
In my view, where the record consists of the comments or observations of public  
inspectors based on their review of the records maintained by the third party at least in  
part for inspection purposes, the principle established by Can. Packers Inc., supra,  
applies and the information is not to be considered as provided by the third party.  
See also Canada Packers, at pp. 54-55; Les viandes du Breton Inc. v. Canada (Canadian Food  
Inspection Agency), 2006 FC 335 (), at paras. 44-49.  
A third principle is that whether or not information was supplied by a third party will often be  
primarily a question of fact. For example, if government officials correspond with a third party  
regarding certain information, it is possible that the officials have prior knowledge of the  
information gained by their own observation or other sources. But it is also possible that they are  
83  
aware of this information because it was communicated to them beforehand by the third  
party. The mere fact that the document in issue originates from a government official is not  
sufficient to bar the claim for exemption. But, in each case, the third party objecting to disclosure  
on judicial review will have to prove that the information originated with it and that it is  
confidential.  
To summarize, whether confidential information has been “supplied to a government  
institution by a third party” is a question of fact. The content rather than the form of the  
information must be considered: the mere fact that the information appears in a  
government document does not, on its own, resolve the issue. The exemption must be  
applied to information that reveals the confidential information supplied by the third party,  
as well as to that information itself. Judgments or conclusions expressed by officials  
based on their own observations generally cannot be said to be information supplied by a  
third party.  
[Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, at paras. 154-158]  
[Emphasis added]  
[para 178]  
Some of the information in the Records involves a documented analysis of third party(ies)  
information contained in Appendix A: Differences and Pros/Cons between prospective law firms. There is  
no evidence or record that reveals what information the third party(ies) actually supplied and whether or  
not it was provided on a confidential basis. The author of the Appendix A: Differences and Pros/Cons  
documentation is not identified but one can assume it was an analysis prepared by an employee of the  
Public Body for the senior employees involved in the selection process or the senior employees  
themselves. Either way the table could not have been prepared without information being provided by the  
third party(ies). The key is whether the information was provided by a third party or is inextricably  
linked to information provided by the third party.  
In Order 99-040, the former Commissioner held that if information at issue would not have  
been created without information supplied by a third party, the information must be  
treated as having been supplied by the third party. The information that was created would be  
considered to be “inextricably linked” with the information provided by the third party.  
[Order F2010-030, at para. 33; Judicial Review dismissed: See also ABC Benefits Corporation v.  
Alberta (Information and Privacy Commissioner), 2015 ABQB 662, at paras. 65-75; Imperial Oil  
Ltd v. Calgary (City), 2014 ABCA 231 (), at para. 83]  
[Emphasis added]  
[para 179]  
The Public Body did not, in any of its submissions, make representations on the second  
part of the s. 16 test: confidentiality. None of the pages in the June 10, 2016 Records at Issue are  
stamped confidential, private, or have any wording that could lead one to conclude that the commercial  
information was supplied explicitly or implicitly in confidence by a third party. Looking at the records  
themselves, in those cases where the record is an email, the feature of the Outlook email system used by  
the Alberta Government, to earmark emails within a certain category such as Privileged and Confidential,  
Private, High Importance, has not been activated to mark any of the information to indicate it was  
provided or to be held on a confidential basis. As noted above in para. 47 of this Order, in the information  
released to the Applicants (First Applicant: August 31, 2012 and Second Applicant: September 21, 2012),  
there are pages where the feature for “Privileged and Confidential Communication” has been activated  
(for examples, pages 4, 8, 10, and 11).  
[para 180]  
Pages 103-107 have Non-Responsive handwritten on the page with no exceptions noted  
(attached to Briefing Notes dated December 6, 2010). The Amended Index shows s. 16 applied to some  
of these pages (see above at para. 174). The information about the law firms includes: basis of  
experience, firm depth, estimated disbursements, other jurisdictional engagement, fees for steps,  
potential conflicts of interest. A review of the June 10, 2016 Records at Issue where s. 16 has been  
claimed does not reveal any of the actual information that the third party(ies) provided to the Public Body  
to enable it to prepare Appendix A: Differences and Pros/Cons. Notwithstanding these facts, particularly  
the lack of evidence demonstrating a concern on the part of the Public Body to protect the information as  
84  
confidential, given the nature of the process undertaken to receive proposals from prospective law firms, it  
is reasonable to conclude that the third party(ies) supplied their information with an implied  
expectation that the information would be held in confidence during the competitive selection  
process of which they were a part: the information would not be otherwise disclosed or available from  
sources to which the public has access or was prepared and provided for a purpose which would not  
entail disclosure.  
[para 181]  
The second requirement in s. 16(1)(b) has been met for a select and limited number of  
the pages of records to which it has been applied. Because s. 16 is conjunctive, I turn to the final  
requirement in s. 16(1)(c)(i).  
Part 3: Could disclosure of the information reasonably be expected to bring about the outcome set out in  
s. 16(1)(c)(i)?  
[para 182]  
An essential requirement under s. 16(1)(c)(i) is evidence that disclosure could reasonably  
be expected to significantly harm a third party’s competitive position or interfere significantly with its  
negotiating position. The question becomes: has the Public Body produced evidence to support the  
contention that significant harm could reasonably be expected if specific information is disclosed?  
In Qualicare Health Service Corporation v. Alberta (Office of the Information and Privacy  
Commissioner), 2006 ABQB 515, the Court upheld a decision of the Commissioner requiring  
evidence to support the contention that there was risk of harm if information were to be disclosed.  
The Commissioner’s decision did not prospectively require evidence of actual harm; the  
Commissioner required some evidence to support the contention that there was a risk of  
harm. At no point in his reasons does he suggest that evidence of actual harm is  
necessary.  
The evidentiary standard that the Commissioner applied was appropriate. The  
legislation requires that there be a “reasonable expectation of harm.” Bare  
arguments or submissions cannot establish a “reasonable expectation of harm.”  
When interpreting similar legislation, courts in Ontario and Nova Scotia have held  
that there is an evidentiary burden on the party opposing disclosure based on  
expectation of harm: Chesal v. Nova Scotia (Attorney General) 43, at para. 56 Ontario  
(Workers' Compensation Board) v. Ontario (Assistant Information & Privacy  
Commissioner) 44 at para. 26.  
[Order F2014-44, at para. 62]  
[Emphasis added]  
[para 183]  
The evidence does not need to establish actual harm but rather “a reasonable  
expectation of probable harm.”  
This Court in Merck Frosst adopted the “reasonable expectation of probable harm” formulation  
and it should be used wherever the “could reasonably be expected to” language is used in access  
to information statutes. As the Court in Merck Frosst emphasized, the statute tries to mark out  
a middle ground between that which is probable and that which is merely possible. An  
institution must provide evidence “well beyond” or “considerably above” a mere  
possibility of harm in order to reach that middle ground: paras. 197 and 199. This inquiry  
of course is contextual and how much evidence and the quality of evidence needed to  
meet this standard will ultimately depend on the nature of the issue and “inherent probabilities or  
improbabilities or the seriousness of the allegations or consequences”: Merck Frosst, at para. 94,  
citing F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 40.  
…
In sum, the Commissioner’s decision reasonably applied the appropriate evidentiary standard.  
The Commissioner took into account the fact that the Registry’s efficiency is based on its  
confidentiality. However, she had to balance this concern with the public’s interest in having  
85  
transparent and open governmental institutions. In striking a balance between those two  
competing interests, the Commissioner decided that the risks suggested by the Ministry were too  
remote and not supported by the evidence to ground a reasonable expectation of probable  
harm. This finding was reasonable.  
[Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy  
Commissioner), 2014 SCC 31, at paras. 54, 66]  
[Emphasis added]  
[para 184]  
It is unnecessary to further explore the question of harm. It is incumbent on whatever  
party seeks to withhold information to submit or adduce evidence that will ground a reasonable  
expectation of probable harm. I am unable to identify anything in any of the submissions of the Public  
Body that referred to reasonable expectation of probable harm that would result from the disclosure of the  
business related information in the records.  
[para 185]  
In relation to the information in the records regarding the successful law firm, the Public  
Body Initial Submission [2014] and Initial Submission [2016] focus almost entirely on the CFA; pages 551-  
564 that are not part of the June 10, 2016 Records at Issue. In fact, in the Public Body Initial Submission  
[2016] the example given in relation to s. 16 is the CFA where it states: “For example, the Contingency  
Fee Agreement directly affects the financial interests of the other party to it - the Province’s lawyers in the  
tobacco recovery litigation” even though those pages do not form part of this phase of the Inquiry.  
Indeed, in its Reply Submission [2016], the Public Body states: “The CFA is not found within the June 10,  
2016 Records at Issue, and is thus not at issue in this Inquiry.” Because the CFA was the only example  
relied on by the Public Body with respect to s. 16, I was concerned. My concern was heightened by the  
fact that at no time has the Public Body relied on and applied s. 16 to the CFA pages in this phase or in  
the main Inquiry (refer to all other indices provided by the Public Body during this phase for pages 551-  
564). As a result, on March 3, 2017, I corresponded with the Public Body (copied to the Applicants)  
regarding its reference to the CFA:  
One observation that may convince the Public Body to respond positively to my request [at p. 4 of  
my March 1, 2017 letter] for the pages of Records that have been consistently reported by the  
Public Body [see copy of voice mail transcription enclosed] as containing the Contingency Fee  
Agreement (CFA) [pages 551-564] is because during this part of the Inquiry, the Public Body in  
its Initial Submissions [2016] at para. 22 refers to the information in the CFA to demonstrate that  
Records in the Amended Index for the June 10, 2016 Records at Issue include information  
described in s. 16 of the FOIP Act. Your Initial Submissions [2016] appear to assume that the  
Records related to the CFA were provided as part of the June 10, 2016 package to me, which  
they were not. Without the opportunity to review these pages of Records, it will be difficult to  
make a determination with respect to your submissions regarding the application of the  
mandatory s. 16 exception.  
[para 186]  
The Public Body declined my offer to add the CFA pages in the June 10, 2016 Records  
at Issue package. When its reliance on the CFA was pointed out, the Public Body did not provide any  
additional submissions in relation to s. 16. At para. 23 of its Initial Submission [2016], the Public Body  
states: “Some of the June 2016 records contain information provided by other prospective law firms, and  
disclosure of that information could reasonably be expected to affect their financial interests and  
competitive position.” [my emphasis] The Public Body’s submissions, reproduced above, are mere  
assertions and constitute little else than a recitation of the test set out in s. 16 of the FOIP Act, which is  
important to do but not sufficient. The Public Body makes no reference to significant harm. I am unable,  
on what is before me, to find any evidence as to how the test that disclosure of information could  
reasonably be expected to harm significantly the competitive position or interfere significantly with the  
negotiating position of the third party within the terms of s. 16(1)(c) has been met.  
[para 187]  
Exercising caution not to reveal the contents of the June 10, 2016 Records at Issue, my  
observations with respect to s. 16 of the FOIP Act are as follows:  
86  
1. The Public Body has not made any submission or provided any evidence as to what or how  
information in the records would reveal any commercial or financial information of a third  
party(ies).  
2. On a review of the records themselves, some of the pages contain information that can be  
characterized as commercial or financial information of a third party(ies). Some of the pages of  
records include an analysis of information in the form of Appendix A: Differences and Pros/Cons  
about the third party(ies) which constitutes information that is inextricably linked to information  
one can reasonably assume was supplied by a third party(ies).  
3. The Public Body neither makes any submission nor provides evidence with respect to the  
information being supplied in confidence, explicitly or implicitly. On a review of the records to  
which the Public Body has applied s. 16, there is no explicit indication on the pages that any of  
the contents were provided by a third party(ies) in confidence or that the Public Body consistently  
treated the information in a manner that indicated a concern for its protection from disclosure.  
4. Notwithstanding the lack of evidence demonstrating a concern on the part of the Public Body to  
protect the information as confidential, given the nature of the process undertaken to receive  
proposals from prospective law firms, it is reasonable to conclude that the third party(ies) supplied  
their information with an implied expectation that the information would be held in confidence  
during the competitive selection process of which they were a part: the information would not be  
otherwise disclosed or available from sources to which the public has access or was prepared  
and provided for a purpose which would not entail disclosure.  
5. The Public Body has not made any substantive submission or provided any evidence with respect  
to the significant harm that could reasonably be expected to result from the Public Body’s  
disclosure of a third party(ies)’ information. Rather the Public Body simply asserts that disclosure  
could affect their financial and/or competitive interests.  
6. The Public Body submits in its Reply Submission [2016] in response to the First Applicant’s Initial  
Submission [2016] that “[i]t does not matter whether section 16 was previously referred to; it is for  
the External Adjudicator to determine whether section 16 applies.” This was in response to the  
First Applicant taking issue with the Public Body using the CFA as its only example under s. 16,  
what it refers to as the Public Body “bootstrapping”, because s. 16 had not previously been  
claimed for the pages designated as the CFA. While the pages of the Records at Issue  
containing the CFA do not form part of this phase of the Inquiry, I reference this because of the  
inadequate submission from the Public Body with respect to what the s. 16 exception requires  
and its reference to handing off the decision to me.  
[para 188]  
The contents of the records do not reveal any information that would meet the third  
requirement in the three-part test laid out in s. 16. Because s. 16 is a mandatory exception, caution  
should be exercised. A third party(ies) ought not to be disadvantaged because of the failure of the Public  
Body to provide sufficient submissions and evidence. The issue of next steps with respect to s. 16 will be  
dealt with in the Order for Reconsideration below. I turn now to the final issue, whether the public interest  
override applies.  
ISSUE #4: Whether the s. 32 public interest override applies to any of the information in the June  
10, 2016 Records at Issue and, if so, who has the onus of proof and what is the test for disclosure  
of information when the override applies?  
[para 189]  
The Applicants have raised the issue of the public interest override found in s. 32 of the  
FOIP Act, which reads as follows:  
32(1) Whether or not a request for access is made, the head of a public body must, without delay,  
disclose to the public, to an affected group of people, to any person or to an applicant  
87  
(a) information about a risk of significant harm to the environment or to the health or  
safety of the public, of the affected group of people, of the person or of the applicant,  
or  
(b) information the disclosure of which is, for any other reason, clearly in the  
public interest.  
(2) Subsection (1) applies despite any other provision of this Act.  
[Emphasis added]  
[para 190]  
A rebuttable presumption in favour of granting access has been recognized in the  
Supreme Court of Canada:  
Section 1 sets forth the purpose of the FIPPA. Reflecting the public interest in access to  
information, it establishes a presumption in favour of granting access. Chief Justice McLachlin  
and Justice Abella explain in Ontario v. CLA:  
Access to information in the hands of public institutions can increase transparency in  
government, contribute to an informed public, and enhance an open and democratic  
society.  
...Open government requires that the citizenry be granted access to government records  
when it is necessary to meaningful public debate on the conduct of government  
institutions. [Emphasis added; paras. 1 and 37.]  
However, s. 1 also recognizes that the presumption must be rebuttable in a limited number  
of specific circumstances according to the mandatory or optional exemptions provided for in  
the Act.  
The scheme of the Act reflects its purpose. The head of the institution that controls or has  
custody of the requested records, and who has knowledge of their content and the impact of their  
release, has the primary responsibility for determining whether one of the exemptions applies to  
the requested records. In the case of a discretionary exemption, he also has the  
responsibility of determining whether that exemption should be invoked. However, the Act  
gives the ultimate power over releasing the information to the IPC, subject to judicial review.  
[John Doe, at paras. 41-42]  
[Emphasis underlining in original; Other emphasis added]]  
[para 191]  
The Applicants assert s. 32 and they, therefore, carry the burden to demonstrate that the  
public interest override applies in these particular circumstances. In that regard, in a case dealing with s.  
32 (formerly s. 31), former Commissioner Clark stated:  
In the Bosch decision,11 Mr. Justice Cairns (appointed as an adjudicator in my place because I  
was unable to act in that particular case) stated that the applicant has the onus of proof in a  
section 31 review. The applicant must therefore demonstrate that the information fits within  
the pre-conditions set out in section 31 of the Act; the head of the public body does not  
have to prove that the information does not fit within one of these pre-conditions.  
[Order 96-011, at pg. 17]  
[Emphasis added]  
[para 192]  
The burden on the Applicants will not be easily met. Former Commissioner Work, in  
considering Order 96-011, stated:  
Order 96-011 established that an applicant has the burden of proof to show that a public body is  
required to disclose information under section 32. Due to section 32 overriding the Act, section 32  
is interpreted narrowly and the burden of proof is difficult to meet. An applicant must show that  
88  
the information concerns matters of compelling public interest and that there are “emergency-  
like”circumstances compelling disclosure. An applicant must show that a matter is “clearly in the  
public interest” as opposed to a matter that may be of interest to the public: see Orders 96-011,  
2000-005 and 2000.  
[Order F2004-024, at para. 57]  
[Emphasis added]  
[para 193]  
The First Applicant was mistaken in asserting that the Public Body should carry the  
burden to show public interest did not apply as it was best positioned to do so, in these circumstances.  
The onus only shifts to the Public Body after the Applicant successfully meets its burden (See the test of  
‘rationally defensible’ in Order F2012-14, at para. 155). It is for the Applicant(s) asserting reliance on s.  
32 to show the information meets one of three pre-conditions:  
Once the pre-conditions set out in section 31 [now s. 32] are met, a statutory obligation arises for  
the head of a public body to release information, notwithstanding that other sections of the Act  
protecting individual privacy may have to be over-ridden in releasing that information. The Act  
cannot be taken to lightly impose this statutory duty on the head of a public body, or to lightly  
allow an over-riding of individual privacy rights. Thus, in any review of a section 31 decision, I  
must first consider whether one of the pre-conditions set out in section 31 has occurred. The  
applicant has the burden of proof at this part of the investigation and it is not a burden  
that will be easily met. These pre-conditions are:  
risk of significant harm to the environment  
risk of significant harm to the health or safety of the public  
release is clearly in the public interest.  
The latter of these pre-conditions was considered by Mr. Justice Cairns in Bosch. In the portion of  
the Bosch decision dealing with section 31(1)(b), Mr. Justice Cairns considered what type of  
information might be “clearly in the public interest”. He made an important distinction between  
information that “may well be of interest to the public” and information that is “a matter of public  
interest.” I agree with this point. I cannot conclude that the Legislature intended for section  
31 to operate simply because a member of the public asserts “interest” in the information.  
The pre-condition that the information must be “clearly a matter of public interest” must  
refer to a matter of compelling public interest.  
[Order 96-011, at pages 17-18; See also Order F2014-29, at para. 20; Order 98-013, at paras.  
38-39]  
[Emphasis added]  
[para 194]  
Only one of the three pre-conditions set out in s. 32 is relevant to this Inquiry: disclosure  
is clearly in the public interest. Raising the issue of public interest, particularly given the wording of s.  
32(1)(a) suggests urgency, ought to be done at the time of an access request or as soon as practicable  
once it is known if the matter is compelling public interest. While that may be best practice, it remains  
open for public interest to be raised for the first time at an Inquiry (Refer to Order F2008-020, at para. 120  
and Order F2014-25, at para. 97). One of the Applicants requested a fee waiver at the time of making  
his/her access request: “Since this matter is in the public interest, I am requesting a waiver of all fees  
save the application fee.” The Applicant conceded that s/he did this with every FOIP request s/he made.  
I make a distinction between the reference to public interest as a justification for a fee waiver and a claim  
for disclosure of information pursuant to the s. 32 public interest override. In this case, the outcome with  
respect to s. 32 should not be prejudiced by the timing of when it was raised by the Applicants.  
[para 195]  
Turning first to the submissions from the Applicants with respect to s. 32. To put their  
access to information requests into context, a few background facts. Following the announcement by the  
Minister of Justice and Attorney General on October 25, 2010 of the government’s intention to commence  
litigation to recover health care costs associated with tobacco and by the time the Applicants made their  
respective access to information requests in 2012, the issue with respect to the tobacco litigation to  
recover health care costs had gained, and continued to attract, considerable public attention (Refer to the  
89  
Second Applicant Initial Submission [2014], at Tabs B and C). The First Applicant, in its Initial  
Submission [2014], provided evidence with respect to the public discourse concerning the retainer of  
external counsel for the purpose of the tobacco related litigation (Refer to First Applicant Initial  
Submission [2014], paras. 29-36). The public attention continued with respect to the issues raised by  
these access to information requests, throughout an investigation by the Ethics Commissioner (Refer to  
Second Applicant Initial Submission [2014], at Tab D) and with the subsequent release of the Iacobucci  
Review Report (Refer to First Applicant’s correspondence dated August 3, 2016, at pages 1-3). The  
Applicants provided substantial proof of the apparent public interest in this issue evidenced by the  
attention given to it by the media (Refer to First Applicant Initial Submission [2014], at Tabs 12-15, 18-19;  
Second Applicant Initial Submission [2014], at Tabs B-C) and others, including being discussed in the  
Alberta Legislative Assembly (Refer to First Applicant Initial Submission [2014], at Tab 16). But does the  
interest evidenced by the attention given constitute compelling public interest within the terms of s. 32?  
[para 196]  
The First Applicant argued that given the overarching purpose of access to information  
legislation is to facilitate democracy by fostering open and transparent government, citizens must have  
access to this kind of information in order to achieve that purpose.  
The overarching purpose of access to information legislation, then, is to facilitate  
democracy. It does so in two related ways. It helps to ensure first, that citizens have the  
information required to participate meaningfully in the democratic process, and secondly, that  
politicians and bureaucrats remain accountable to the citizenry. As Professor Donald C. Rowat  
explains in his classic article, “How Much Administrative Secrecy?” (1965), 31 Can. J. of Econ.  
and Pol. Sci. 479, at p. 480:  
Parliament and the public cannot hope to call the Government to account without an  
adequate knowledge of what is going on; nor can they hope to participate in the decision-  
making process and contribute their talents to the formation of policy and legislation if  
that process is hidden from view.  
See also: Canadian Bar Association, Freedom of Information in Canada: A Model Bill (1979), at  
p. 6.  
Access laws operate on the premise that politically relevant information should be distributed as  
widely as reasonably possible. Political philosopher John Plamenatz explains in Democracy and  
Illusion (1973), at pp. 178-79:  
There are not two stores of politically relevant information, a larger one shared by the  
professionals, the whole-time leaders and persuaders, and a much smaller one shared  
by ordinary citizens. No leader or persuader possesses more than a small part of the  
information that must be available in the community if government is to be effective and  
responsible; and the same is true of the ordinary citizen. What matters, if there is to be  
responsible government, is that this mass of information should be so distributed among  
professionals and ordinary citizens that competitors for power, influence and popular  
support are exposed to relevant and searching criticism. [Emphasis in original.]  
Rights to state-held information are designed to improve the workings of government; to  
make it more effective, responsive and accountable. Consequently, while the Access to  
Information Act recognizes a broad right of access to “any record under the control of a  
government institution” (s. 4(1) ), it is important to have regard to the overarching purposes of the  
Act in determining whether an exemption to that general right should be granted.  
[Dagg v. Canada (Minister of Finance), [1997] 2 SCR 403, at paras. 61-63]  
[Emphasis added]  
[para 197]  
I turn to the Public Body’s submissions with respect to s. 32. The Public Body’s  
interpretation of s. 32 of the FOIP Act appears to ignore the “or” between s. 32(1)(a) and s. 32(1)(b) and  
states that s. 32 “deals with situations where there is an urgent need to disclose information about an  
90  
emergency involving a risk of significant harm to the environment or health and safety of the public.” As  
the First Applicant put it in its Initial Submission [2016] at para.15, the Public Body’s submission “deprives  
subsection 32(1)(b) of any meaning whatsoever.” The Public Body’s interpretation would restrict the  
scope of s. 32 of the FOIP Act to environment and health and safety matters that are dealt with in s.  
32(1)(a) of the FOIP Act. Accordingly, I accept and agree with the First Applicant’s reliance on the Proulx  
decision in the Supreme Court of Canada, which held:  
Despite the similarities between the provisions and the fact that the penalty for breach of  
probation is potentially more severe than for breach of a conditional sentence, there are strong  
indications that Parliament intended the conditional sentence to be more punitive than  
probation. It is a well accepted principle of statutory interpretation that no legislative  
provision should be interpreted so as to render it mere surplusage. It would be absurd if  
Parliament intended conditional sentences to amount merely to probation under a different  
name. While this argument is clearly not dispositive, it suggests that Parliament intended there to  
be a meaningful distinction between the two sanctions.  
[Proulx, at para. 28]  
[Emphasis added]  
[para 198]  
Section 32 is to be given a disjunctive reading [“or”] and, therefore, the Public Body’s  
suggestion that s. 32 only applies to situations envisioned by s. 32(1)(a) is not consistent with the  
statutory language. Section 32(1) has two distinct provisions with respect to where the head of a public  
body is under a duty to disclose information in the public interest, which are contained in 32(1)(a) and s.  
32(1)(b) respectively.  
[para 199]  
The Public Body submits it automatically took public interest into account in exercising its  
discretion under s. 27 (no reference regarding public interest with respect to the other discretionary  
exceptions). In other words, in deciding whether the public interest to withhold trumps the public interest  
to disclose information, the Public Body submits that as this case involved records about significant  
litigation, it would not be in the public interest to do anything which might affect the legal proceedings.  
Had I found the s. 27 legal privilege exception did apply to any of the pages of records, it is important to  
recognize that the public interest override would not apply to exempt any information protected by  
solicitor-client privilege (notwithstanding the language of s. 32(2)). This may be very important as the  
main Inquiry moves forward as the Public Body has claimed legal privilege over the majority of the  
approximately 2,570 pages of Records at Issue in the main Inquiry. Because the Records at Issue in the  
main Inquiry (save and except the 35 pages in this phase) are not at issue, the exact number of pages is  
yet to be determined as some of the 2,570 pages listed in the latest Index are shown as released. This  
will be dealt with as the main Inquiry continues.  
The s. 23 public interest override does not apply to documents exempted from disclosure  
for law enforcement (s. 14) and solicitor-client privilege (s. 19). The main issue in this case, as  
it was argued before us, is whether this renders s. 23 unconstitutional.  
…
The common law privileges, like solicitor-client privilege, generally represent situations where the  
public interest in confidentiality outweighs the interests served by disclosure.  
…
Law enforcement privilege and solicitor-client privilege already take public interest  
considerations into account and, moreover, confer a discretion to disclose the information  
on the Minister. For the reasons that follow, we conclude that the public interest override  
contained in s. 23 would add little to what is already provided for in ss. 14 and 19 of the  
Act.  
[Ontario (Public Safety and Security), at paras. 24, 39, 43]  
[Emphasis added]  
[para 200]  
The Public Body submits there is no information in the June 10, 2016 Records at Issue  
that meet the requirements of s. 32. It goes on to state:  
91  
The fact that one of the Applicants is a member of the media, and therefore seeks information  
about which [s/he] has an interest or in which [s/he] thinks the public might have an interest, does  
not mean that the information sought is a matter of compelling interest.10 Similarly, the fact that  
the other Applicant is a law firm does not make the matter of compelling public interest.”  
[Public Body Initial Submission [2016], at para. 35]  
[para 201]  
The Public Body is no doubt cognizant of the fact that who an applicant is or what s/he  
intends to do with the information to which s/he seeks access is not a relevant consideration in rendering  
an access to information decision. This Public Body submission in this regard carries no weight. Indeed,  
it was unnecessary as the Applicants did not argue public interest on the basis of their respective  
professional positions. Their submissions were focussed on whether disclosure of the information in the  
records met the test of compelling public interest to release the information to further promote the goals of  
transparency and accountability. Regardless, the fact that an applicant may be a member of the media  
does not automatically meet the public interest test for it to be compelling (Refer to Order F2014-25, at  
para. 97).  
[para 202]  
I am loathe to shut the door on giving the Applicants the opportunity to continue to  
demonstrate there is a compelling public interest as the main Inquiry moves forward in the context of the  
bulk of the Records at Issue. The Applicants have already provided evidence of the considerable  
attention given to the events surrounding the creation of these records and have argued:  
The public body has effectively decided the Commissioner and her staff are not to be trusted. If  
the public body believes it is above an officer of the Legislature, who then can hold it to account  
on behalf of the public? The arbitrary refusal of the public body to allow review of the records by  
the Commissioner undermines an independent officer of the Legislature; it should not be allowed,  
and the public body should be publicly censured.  
…
The public body’s arbitrary actions speak also to its attitude, and interpretation - or lack  
thereof - of Section 32 of the FOIP Act.  
…
The purpose of FOIP in a democracy is to hold governments accountable and facilitate  
democracy.  
[Second Applicant Initial Submission [2014], at pgs. 1-2]  
[para 203]  
It is clear to me that in the circumstances surrounding this information, which has given  
rise to a complaint to the Ethics Commissioner, the Iacobucci Review Report and robust media attention  
(all in evidence before me), the Applicants may potentially be able to meet their burden to show there is a  
compelling public interest, which the Public Body should have the opportunity to rebut with submissions  
that address s. 32(1)(b). At this point, the Public Body’s burden to countervail the Applicants’ arguments  
are sparse and to some extent irrelevant. A great deal of the interest is rooted in matters related to the  
CFA, which Records are not at issue at this time, but which are of importance to the Applicants. I have  
decided, therefore, to postpone making a determination with respect to Issue #4, the public interest  
override, until the main Inquiry.  
[para 204]  
The reason for not making a decision with respect to public interest, during this phase of  
the Inquiry, is for the reasons that follow. I consider that to make a finding would be premature because  
the public interest override is a matter that should more properly be considered in the context of the main  
Inquiry that will adjudicate on the remaining and majority of the pages of the Records at Issue.  
[para 205]  
Comparing the small sample being considered at this phase to the count for the pages of  
Records at Issue, the Non-Responsive pages and the other pages added over the course of the Inquiry to  
date makes the point. In 2012, at the time of the access to information decisions, the Public Body  
advised the Applicants there were 564 pages, which page count included pages that had been  
designated as Non-Responsive, therefore were not records, and did not include the pages from another  
access to information request later added. The Index produced in August 2014 by the Public Body with  
its Initial Submission [2014] showed a count of pages 1-564 but did not make reference to or list any of  
92  
the 23 pages later listed in the June 10, 2016 Records at Issue as Non-Responsive. The Index for the  
June 10, 2016 Records at Issue was initially made up of 38 pages, 23 of which were added and listed as  
Non-Responsive pages including 4 pages from another access to information request [2012-G-0102].  
Three of these Non-Responsive pages were released in September 2016 and June 2017 by the Public  
Body leaving a total of 35 pages of June 10, 2016 Records at Issue. The pages designated and  
confirmed by the Public Body to be the CFA are not amongst this small sample of the Records at Issue.  
In the most recent indices produced by the Public Body dated September 30, 2016, January 19, 2017 and  
April 7, 2017, which laid out the Records at Issue in the main Inquiry, which include the June 10, 2016  
Records at Issue, showed a total of approximately 2,570 pages in the main Inquiry (as explained above, a  
count that includes some released or partially released records and some pages still designated Non-  
Responsive). The size of the sample of the June 10, 2016 Records at Issue when compared to the  
present total pages in the main Inquiry leads me to conclude my decision with respect to the issue  
regarding the public interest override should be deferred.  
[para 206]  
Exercising caution not to reveal the contents of the June 10, 2016 Records at Issue, my  
observations with respect to s. 32 of the FOIP Act are as follows:  
1. Section 32 is to be given a disjunctive reading [“or”] and, therefore, the Public Body’s suggestion  
that s. 32 only applies to situations envisioned by s. 32(1)(a) is not consistent with the statutory  
provision. Section 32(1) has two distinct provisions, s. 32(1)(a) and s. 32(1)(b), with respect to  
where the head of a public body is under a duty to disclose information in the public interest.  
2. The Public Body is correct in its assertion that in this case the Applicants carry the burden of  
proof to establish that s. 32 applies. This is distinct from a case under s. 32 where it is the Public  
Body making a decision to disclose information to the public unprompted by an application to do  
so. In that case, which is not the case here, the Public Body would bear the burden to prove the  
release of information met the statutory test.  
3. In this case, without the complete compliment of the Records at Issue in the main Inquiry, it is  
impossible to make a decision whether the Applicants have met their burden to demonstrate that  
the disclosure of the pages of records in the June 10, 2016 Records at Issue is clearly a matter of  
compelling public interest. There is little doubt the media attention devoted to the choice of  
counsel and the terms of their engagement in the tobacco litigation showed a keen interest on the  
part of the public in the matter. As the Second Applicant put it at p. 5 of its Initial Submission  
[2014], “How are we to trust that the consortium did offer the lowest cost, that it is in the best  
interest of Albertans and that it will cost Alberta taxpayers nothing unless we are given access to  
the documents?” But the question to be answered in the main Inquiry with respect to the  
complete set of Records at Issue is whether the information is not just of interest to the public but  
is clearly a matter of compelling public interest.  
4. Making a determination with respect to public interest in this phase of the Inquiry would only apply  
to the 35 pages at issue (which count does not include the CFA) and would, in my opinion, be  
premature. A more appropriate way to proceed is to make the decision regarding the s. 32 public  
interest override during the main Inquiry, if the Applicants elect to argue s. 32 of the FOIP Act  
applies to the whole of the approximately 2,570 pages of the Record at Issue. Therefore, I  
decline to make a decision with respect to Issue #4 in this phase of the Inquiry. Reviewing the  
complete Records at Issue and receiving submissions from the parties in the main Inquiry will  
enable me to decide whether the Applicants have satisfied their burden to demonstrate that the s.  
32 override applies because the test of compelling public interest in full disclosure has been met  
and has not been sufficiently refuted by the Public Body.  
VI.  
Notice to Third Party(ies)  
[para 207]  
I now turn to the matter of notice to third party(ies), which requires a brief explanation.  
The Public Body has applied s. 16, s. 24 and s. 27 for the large majority of the pages of records, including  
93  
numerous exceptions within these sections of the FOIP Act. In fact, there are only 4 pages of records in  
the June 10, 2016 Records at Issue where subsections of all three sections of the FOIP Act have not  
been claimed [98, 129, 210, 211]. Section 16 has not been claimed for these 4 pages.  
[para 208]  
On my review of the June 10, 2016 Records at Issue, I have found that the Public Body  
has not properly relied on the legal privilege exceptions in s. 27(1)(a), s. 27(1)(b)(ii) or s. 27(1)(c)(ii) to any  
of the 33 pages where it has been claimed.  
[para 209]  
For all the same 33 pages plus 2 more pages [210, 211], s. 24 has properly been relied  
upon and may apply, but the Public Body has failed to provide sufficient evidence to demonstrate how it  
exercised its discretion. In addition, because it has applied the multiple exceptions as blanket exceptions  
[210 and 211 the only exceptions], the records do not show how the exceptions have been applied, line-  
by-line, exception-by-exception. The only pages where two exceptions under s. 24 (and no other  
exceptions) have been relied on and the records redacted are pages 210 and 211.  
[para 210]  
Because there is insufficient evidence to allow me to ascertain how the Public Body  
exercised its discretion under s. 24, the Public Body will be ordered to reconsider the exercise of its  
discretion for all 35 pages where the Public Body has relied on and applied s. 24 of the FOIP Act.  
[para 211]  
Once the Public Body has made a decision properly applying s. 24, it may decide to  
release all or part of the June 10, 2016 Records at Issue. Because the Public Body has claimed s. 16, a  
mandatory exception, over all the same pages as s. 24, a further step may be necessary. The point at  
which it decides to disclose information under s. 24 but claims s. 16 still applies, the Public Body will be  
required to comply with s. 30 of the FOIP Act, which reads, in part, as follows:  
30 When the head of a public body is considering giving access to a record that may contain  
information  
(a) that affects the interests of a third party under section 16,  
…
the head must, where practicable and as soon as practicable, give written notice to the third party  
in accordance with subsection (4).  
[Emphasis added]  
[para 212]  
The Public Body has not given notice to any third party(ies) as it had made a decision not  
to release any of the 35 pages of the June 10, 2016 Records at Issue. The Public Body’s decision to  
exercise its discretion under s. 30 not to give notice until it is considering disclosing third party  
information, is a decision in line with what the Alberta Court of Queen’s Bench has said.  
Neither the s. 30 nor s. 67 obligations to notify are unconditional. The legislation does not provide  
an absolute right to a third party or affected person to immediately receive, in full, all relevant  
materials and submissions. The s. 30(1) obligation on the public body is to notify “where  
practicable and as soon as practicable”, while the s. 30(3) obligation is permissive; if a public  
body refuses disclosure on the basis of ss. 16-17 then the public body appears to have  
discretion to notify or not notify any third party. The Privacy Commissioner may only notify  
an affected party “as soon as practicable”, and the information provided by the Commissioner  
may be severed “as the Commissioner considers appropriate.” Logically, the Commissioner  
would be guided in severing information per s. 67(2) by its s. 59(3) obligation to not unnecessarily  
disclosure [sic] any government-held information.  
[Alberta (Employment and Immigration) v. Alberta Federation of Labour, 2009 ABQB 344 [Alberta  
(Employment and Immigration)], at para. 34; Appeal dismissed 2010 ABCA 304]  
[para 213]  
Recognizing the importance of the caution in s. 59(3) of the FOIP Act prohibiting the  
Commissioner or her delegate from disclosing any information in the records which a public body would  
be required or authorized to refuse disclosure of, the sequence of when the Commissioner or her  
94  
delegate requires a public body to give notice is important. In that regard, Justice Verville of the Alberta  
Court of Queen’s Bench said:  
Further, were third party notification automatic and mandatory, a FOIPPA information request  
might allow a person to intentionally probe confidential information held by a public body. For  
example, an organized criminal or terrorist group might instruct a lawyer to make a FOIPPA  
information request to disclose government information on the known membership of that  
group. Even though that FOIPPA information request would undoubtedly be rejected by the  
public body under the s. 20 investigation and security non-disclosure rationale, the request would  
also involve s. 17 privacy interests. Following the Privacy Commissioner’s argument, were denial  
of the information request challenged then those affected third parties would necessarily be  
notified by the Commissioner. Clearly, this outcome is absurd, contrary to the intent of the  
legislature, and defeats one of the basic objectives of the legislation. Notification of affected third  
parties cannot be an automatic consequence where an affected third party’s ss. 16 or 17 interests  
are involved.  
The Public Body suggests, and I would agree, that any deleterious effect of third party or  
affected person notification may be avoided by the sequence in which the Adjudicator  
evaluates rationales for non-disclosure, and where at least one alleged reason for non-  
disclosure involved privacy of third party information (ss. 16-17) and a second reason  
flows from non-disclosure for proper government operation (ss. 22-28).  
In those instances, where the public body requests that an affected person not be informed of the  
FOIPPA information request, it is my view that the Privacy Commissioner should first hear  
submissions and determine the validity of non-disclosure where that non-disclosure was based  
on ss. 22-28. If the Commissioner concludes non-disclosure was appropriate, the matter ends,  
and the third party will not have any private or economic information disclosed. Phrased  
differently, while the third party has not had the opportunity required by procedural fairness to  
argue that non-disclosure is appropriate, that third party cannot yet have experienced any harm  
that may result from the disclosure of potentially damaging and confidential information.  
If all ss. 22-28 non-disclosure rationales are rejected, then the affected third party is  
notified, and invited to make submissions in reference to privacy and business interests  
(ss. 16-17). The affected party would have been notified “as soon as practicable” (s. 67(1)), and  
whatever information was provided to the affected third party would still be subject to  
“appropriate” severance (s. 67(3)) so that the notice would only disclose whatever information is  
“necessary” (s. 59(1)), taking:  
59(3) ... every reasonable precaution to avoid disclosing and must not disclose  
a) any information the head of a public body would be required or authorized to  
refuse to disclose if it were contained in a record requested under section 7(1), or  
(b) whether information exists, if the head of a public body in refusing to provide  
access does not indicate whether the information exists.  
Again, phrased differently, for the Privacy Commissioner to notify an affected third party so as  
to defeat a legitimate basis for a public body to refuse disclosure of requested information  
would mean the Commissioner had not taken “every reasonable precaution” to avoid disclosure.  
In my view this would be an unreasonable procedural choice.  
The Privacy Commissioner has argued that FOIPPA’s operation and purpose ought to be  
evaluated strictly or principally from the context of granting or denying access by the applicant to  
information. I do not agree. The prohibitions against disclosure stated in ss. 16-29 do relate to  
applicant information requests. However that is logical as the FOIPPA process is initiated by an  
application to disclose information, and, procedurally, that information request may then result in  
95  
an obligation on the public body and Commissioner to not disclose information to affected third  
parties. The basic non-disclosure obligations are the same, other than a public body and  
the Commissioner have no obligation to avoid disclosing information to a third party  
where that third party itself was the source of that information.  
The affected third party would therefore only be notified where the public body or  
Commissioner had determined that all ss. 18-28 government operation non-disclosure  
considerations were invalid. At that point no legitimate arguments would remain for not  
disclosing the relevant information to an affected third party. Both obligations to hold information  
private would be fully evaluated and discharged.  
[Alberta (Employment and Immigration), at paras. 47-53]  
[Emphasis added]  
[para 214]  
Based on this reasoning, I find the Public Body was correct in not giving notice  
prematurely to any third party(ies) whose business information may fall within s. 16. The sequence of  
when notice is given to a third party(ies) is critical to avoid prematurely and unnecessarily alerting a third  
party and second, to respect the requirement pursuant to s. 59(3) to avoid disclosure of information which  
the Public Body has the right to withhold. It is incumbent on me, therefore, to Order the Public Body to  
comply with s. 30 only after a decision to release all or part of the June 10, 2016 Records has been made  
by the Public Body. Thereafter, the Public Body will be required to comply with s. 30(1) and s. 30(4) of  
the FOIP Act, that is, to give notice to the third party(ies) identified in the records, seeking their consent to  
disclosure (particularly as the First Applicant provided some evidence consent may be forthcoming from  
at least one third party) and, if consent is not given, to advise the third party(ies) of their right to Request a  
Review as to why business information about them should not be disclosed by the Public Body.  
It is plain that s. 30 uses the word “access” as opposed to the word “disclosure,” found in s. 17  
and 20. It seems to me that one cannot have access without disclosure. In any event, in my  
view, the purpose of s. 30 is to allow a potentially affected third party a say in what personal  
information gets published. That is a fundamental tenet of the Act. Therefore, whenever the  
personal information of a third party may be disclosed, even if that is not the public body’s intent,  
the procedure in s. 30(4) must be followed. It may be that the public body does not intend to  
disclose, either because the information is beyond the scope of the request or the provisions of s.  
7 [sic] or s. 20 preclude disclosure. If it is the latter, the input of the potentially affected party is  
necessary as the OIPC may disagree with the public body’s decision. If that happens, requiring  
the OIPC to direct the public body to then notify the potentially affected third party becomes  
cumbersome and unnecessarily delays the process. Therefore, in my view, despite the  
permissive language in Section 30(3), the public body ought to conduct itself in accordance with  
s. 30(4), when deciding whether to disclose in scope information.  
…
Given my interpretation of s. 30 of the Act, had the matter been properly brought to the  
Commissioner’s attention, the only rational conclusion that the Commissioner could have  
come to is that the EPC violated the Act and must be directed to proceed in accordance  
with the Act, specifically s. 30.  
[Edmonton Police Commissioner v. Alberta (Information and Privacy Commissioner), 2011 ABQB  
291, at paras. 13, 15]  
[Emphasis added]  
[para 215]  
In September 2016, as discussed above (See Issue #3 in relation to s. 16, beginning at  
para. 153), the Public Body intended to release 3 pages of the June 10, 2016 Records at Issue to the  
Applicants, page 32 being one of those which was released. Page 32, has the name of a law firm, which  
on other pages for which the Public Body has claimed s. 16, the name of a business is all the information  
there is that relates to a third party. The Public Body did not give notice to any third party(ies) when it  
made that decision to release page 32 of the Records. As I said above, at para. 174:  
Page 32 of the Records was included with the package of June 10, 2016 Records at Issue when  
it was first provided to me but has, during this phase of the Inquiry, been released to the  
96  
Applicants. This is an example of where the Public Body has not been consistent in its  
application of the mandatory exception s. 16. When page 32 was released to the Applicants, the  
name of a law firm was not redacted. Also, of interest, on page 210 there is the name of a law  
firm, which the Public Body has redacted under s. 24, not under s. 16. Notably, though not part  
of the records at issue in this phase of the Inquiry, in the information released to the  
Applicants in response to their access to information requests and in the release on  
September 30, 2016, there are pages where the name of a lawyer or a law firm have not  
been redacted (for example, page 1734).  
[Emphasis added]  
[para 216]  
As discussed above, the First Applicant Initial Submission [2014] provided evidence that  
potentially one third party may be prepared to consent (refer to para. 163 above) to the release of its  
information. The Public Body is now aware there may be a third party who has no objection to the  
release of its business information. It is, therefore, incumbent on the Public Body, should it make a  
decision under the Order for Reconsideration to release all or parts of the pages of the June 10, 2016  
Records at Issue, to give notice to a third party(ies) in accordance with s. 30 to make a determination with  
respect to s. 16.  
This matter is closely tied with the duty of public bodies under section 30 of the Act, to give notice  
to third parties if it is considering disclosing their personal information. If there appears from the  
face of the records or other information in the possession of the public body the distinct  
possibility that an individual would consent to disclosure of their personal information if  
consulted, and the public body fails to determine whether this is so, it is failing to properly  
make the determination under section 30 of whether to “consider giving access”, with its  
associated duty to notify third parties and obtain their views. A recent Supreme Court of Canada  
decision supports this conclusion. In Merck Frosst Canada Ltd. v. Canada (Health) [2012] S.C.J.  
No. 3, the Court made the following comments about a public body’s duty to give notice under the  
parallel provision of the federal Access to Information Act:  
(i) With respect to third party information, the institutional head has equally important duties  
to disclose and not to disclose and must take both duties equally seriously  
(ii) The institutional head:  
…
• should refuse to disclose third party information without notice where the information is  
clearly exempt, that is, where there is no reason to believe that the information is  
subject to disclosure.  
(iii) The institutional head must give notice if he or she:  
• is in doubt about whether the information is exempt, in other words if the case does not  
fall under the situations set out in point (ii); …  
While this obligation has not always been enforced in previous orders of this office, I  
believe the Supreme Court of Canada’s directive in the Merck Frosst case must be  
adopted and observed going forward.  
[Order F2013-51, at paras. 115-116]  
[Emphasis added]  
[para 217]  
Section 16 will be dealt with as part of the Order for Reconsideration that follows. In the  
course of complying with the Order for Reconsideration should the Public Body decide to consider  
granting access and continues to be of the opinion that s. 16 applies to information on some or all of the  
31 pages where s. 16 has been relied upon may contain information affecting the interests of a third  
party(ies), the Public Body must give notice to any affected third party(ies), pursuant to s. 30 of the FOIP  
Act. In providing notice to the affected third party(ies), the Public Body will take the necessary  
precautions not to disclose the contents of the Records. In that regard, the Public Body should consider  
97  
the alternative of providing a description or summary of the contents of the Records pertaining to each of  
the third party(ies), pursuant to s. 30(4)(b). If consent is not forthcoming from the third party(ies), once  
the Public Body receives third party representations, should any be provided, it can make a determination  
with respect to the applicability of s. 16.  
Section 30 of the FOIP Act, like section 27 of the federal Access to Information Act, contains a  
“low threshold” for providing notice to a third party. Under section 30 of the FOIP Act, the head  
need only form the opinion that a record he or she is considering disclosing may contain  
information affecting a third party’s interests under section 16 before the duties under this  
provision are engaged. There is no requirement in this provision that the head must form  
the opinion that the requirements of section 16 are actually met before providing notice.  
There is nothing in section 30 to suggest that the requirements of section 16 are met if the head  
of a public body elects to provide notice to an affected party under its authority. Moreover, the  
notice requirements in section 30 are engaged only when the head is considering granting  
access and the head forms the opinion that the records may contain information affecting  
interests under section 16 or 17 of the FOIP Act.  
[Order F2012-17, at para. 136]  
[Emphasis added]  
[para 218]  
Where the Commissioner or her delegate determines that the head of a public body is  
required to refuse access, in this case, s. 16, it is incumbent on the Commissioner or her delegate to  
require the head of a public body to refuse access to all or part of the record. In the case where a  
mandatory exception such as s. 16 applies, it is essential for me as an External Adjudicator to ensure the  
Public Body refuses access to all or part of the record.  
VII.  
ORDER  
[para 219]  
Where the head of a public body is authorized to refuse access to information under any  
one of the discretionary exceptions and the Commissioner or her delegate determines that a public body  
has failed to properly apply the exception, the Commissioner or her delegate can require the head of the  
public body to reconsider its decision. The rationale underlying this requirement is, in my opinion, correct  
as it places the responsibility and authority to decide whether or not to release information under a  
discretionary statutory provision where it properly rests; with a public body. To provide otherwise, in other  
words, to enable the Commissioner or her/his delegate to replace the exercise of a public body’s  
discretion with her/his own, would undermine the principles of accountability and transparency in the  
administration of government, the very objectives and purposes the FOIP Act are intended to protect and  
promote. The requirements for both mandatory and discretionary exceptions are laid out in s. 72 of the  
FOIP Act, which reads, in part, as follows:  
72(1) On completing an inquiry under section 69, the Commissioner must dispose of the issues  
by making an order under this section.  
(2) If the inquiry relates to a decision to give or to refuse to give access to all or part of a  
record, the Commissioner may, by order, do the following:  
(a) require the head to give the applicant access to all or part of the record, if the  
Commissioner determines that the head is not authorized or required to refuse  
access;  
(b) either confirm the decision of the head or require the head to reconsider it, if  
the Commissioner determines that the head is authorized to refuse access;  
(c) require the head to refuse access to all or part of the record, if the  
Commissioner determines that the head is required to refuse access.  
…
98  
(4) The Commissioner may specify any terms or conditions in an order made under this  
section.  
[Emphasis added]  
[para 220]  
I make this Order under s. 72(2)(b), s. 72(2)(c) and s. 72(4) of the FOIP Act. The Public  
Body provided 2 unredacted copies of all 38 pages of the June 10, 2016 Records at Issue to me, as the  
External Adjudicator. This Order is only with respect to the June 10, 2016 Records at Issue, which is  
made up of a total of 35 pages. .  
Section 27  
[para 221]  
I find the Public Body did not properly rely on s. 27 of the FOIP Act for any of the 33  
pages of the June 10, 2016 Records at Issue [98, 99-102, 103-107, 113-119, 129, 258-261, 262-264,  
265-268, 645-648] over which it claimed one or more of the s. 27 exceptions, specifically s. 27(1)(a), s.  
27(1)(b)(ii), and/or s. 27(1)(c)(ii). The Public Body submitted that all of the pages in the June 10, 2016  
Records at Issue were protected by legal privilege, including both solicitor-client and litigation privilege  
(making no reference to the 2 pages where s. 27 was not relied on). I find that none of the information on  
the 33 pages of records fits within the legal test of either solicitor-client privilege or litigation privilege  
under s. 27(1)(a) or within the terms of either s. 27(1)(b)(ii) and/or s. 27(1)(c)(ii).  
[para 222]  
Because s. 27 does not apply to the June 10, 2016 Records at Issue, it is unnecessary to  
consider whether or not the Public Body properly exercised its discretion in applying the exceptions under  
s. 27. I, therefore, quash the decisions made by the Public Body on August 31, 2012 (First Applicant) and  
September 21, 2012 (Second Applicant) with respect to its reliance on s. 27 of the FOIP Act.  
[para 223]  
Because other exceptions have been claimed for all 35 pages of the June 10, 2016  
Records at Issue, 33 pages of which s. 27 was claimed but does not apply, I go on to consider the other  
discretionary and mandatory exceptions relied on by the Public Body.  
Section 24  
[para 224]  
I find the Public Body properly relied on but did not properly apply s. 24 of the FOIP Act  
for the total 35 pages of the June 10, 2016 Records at Issue [98, 99-102, 103-107, 113-119, 129, 210,  
211, 258-261, 262-264, 265-268, 645-648] over which it claimed one or both of the s. 24 exceptions,  
specifically s. 24(1)(a) and/or s. 24(1)(b)(i). In that regard, I find the Public Body failed to demonstrate  
that it properly exercised its discretion under s. 24 and that its decision to refuse access was not  
reasonable because it failed to take all relevant factors and considerations into account based on the  
facts and circumstances of this particular case.  
[para 225]  
Pursuant to s. 72(2)(b), I order the Public Body to Reconsider its application of s. 24 to all  
35 pages of the June 10, 2016 Records at Issue under s. 24 of the FOIP Act, specifically under s.  
24(1)(a): 98, 129, 210, 258-261, 262-264, 265-268, 645-648 and under s. 24(1)(b)(i): 98, 99-102, 103-  
107, 113-119, 129, 211, 258-261, 262-264, 265-268, 645-648. In that regard, I order the Public Body to  
make a new decision under s. 24 that considers and weighs all relevant factors and circumstances based  
on the facts and circumstances of this particular case in exercising its discretion to allow or to deny  
access, with respect to the June 10, 2016 Records at Issue.  
Section 16  
[para 226]  
The Public Body relied on s. 16 for 31 pages of the total 35 pages of the June 10, 2016  
Records at Issue. I find that the Public Body did not properly rely on s. 16 of the FOIP Act to the  
information on the following 9 pages of the June 10, 2016 Records at Issue:  
The Public Body has relied on s. 16 on the following pages where there is no reference to a  
business or its information, where there is no law firm name or name of lawyers and/or there is no  
99  
information from the Appendix A: Differences and Pros/Cons analysis and/or no information that  
would amount to an informational asset:  
102, 116, 261, 265, 268, 645, 648  
Pages of records where s. 16 has been applied where there is a reference to a law firm or firms  
by name but which pages do not include the name of a lawyer or lawyers or information referred  
to in Appendix A: Differences and Pros/Cons:  
99, 258  
[para 227]  
For the remaining 22 pages of the June 10, 2016 Records at Issue [100, 101, 103, 104,  
105, 106, 107, 113, 114, 115, 117, 118, 119, 259, 260, 262, 263, 264, 266, 267, 646, 647] where s. 16 of  
the FOIP Act has been relied on, I find that the Public Body did not properly apply s.16 to the information  
in the June 10, 2016 Records at Issue as it did not satisfy all three criteria required under s. 16,  
specifically, because it did not provide evidence that the disclosure of the information could reasonably be  
expected to significantly harm the competitive position or significantly interfere with the negotiating  
position of a third party. With respect to these 22 pages to which the Public Body applied s. 16, I make  
the following findings:  
1. I find the first part of the test in s. 16(1)(a)(ii) is met for some of the pages to which it has been  
applied because the contents of those pages of records reveal some financial information that  
has been supplied by a third party(ies) and is, therefore, information that is inextricably linked to a  
third party(ies).  
2. Despite the fact that the Public Body has failed to address the second part of the test, found in s.  
16(1)(b), in its submissions, has not provided any evidence to support that the information was  
provided in confidence, and the fact that the records themselves have no notations or indicators  
to indicate the information was provided in confidence, I find that, in considering the  
circumstances of this case objectively, there would be a reasonable expectation of confidentiality  
on the part of the third party(ies) who supplied the information.  
3. The Public Body has failed to address the issue of harm or to provide any evidence  
demonstrating the significant harm that could reasonably be expected to result from the  
disclosure of the third party(ies)’ information and, therefore, the Public Body has not met the third  
part of the conjunctive test in s. 16, specifically provision in s. 16(1)(c)(i).  
[para 228]  
As part of this Order for Reconsideration, I order the Public Body to reconsider its  
application of s. 16 of the FOIP Act to 22 pages of the records [100, 101, 103, 104, 105, 106, 107, 113,  
114, 115, 117, 118, 119, 259, 260, 262, 263, 264, 266, 267, 646, 647] and make a new decision if it can  
establish that significant harm could reasonably be expected to result from the disclosure of the third  
party(ies)’ information. There are no pages in the June 10, 2016 Records at Issue where s. 16 has been  
relied on and applied in the absence of other exceptions. Because s. 16 is a mandatory exception, before  
disclosing any information under its new decision pursuant to this Order for Reconsideration, the Public  
Body must, pursuant to s. 72(2)(c), refuse access to all or part of the 22 pages of the June 10, 2016  
Records at Issue where it decides s. 16 has been properly applied by meeting the third part of the test in  
s. 16, specifically under s. 16(1)(c)(i).  
Notice to Third Party(ies)  
[para 229]  
If its new decision includes the disclosure of some or all of the June 10, 2016 Records at  
Issue and if the Public Body continues to assert s. 16 over any of those same pages, before making its  
final decision to disclose, I order the Public Body to comply with s. 30(4) of the FOIP Act, by giving notice  
to all affected third party(ies) whose business information has been identified by the Public Body in the  
pages of the June 10, 2016 Records at Issue where it decides, pursuant to this Order for  
Reconsideration, that s. 16 has been properly applied.  
100  
[para 230]  
In doing so, the Public Body’s notice to the affected third party(ies) must indicate that the  
third party(ies) have 20 days of being given the notice to provide their consent or to make representations  
to the Public Body explaining why the information should not be disclosed in accordance with s. 31. If an  
affected third party(ies) elects not to consent or to make a representation, the Public Body must inform  
itself sufficiently with the information obtained from the affected third party(ies) as to how s. 16 applies to  
the information in the records where the Public Body continues to maintain s. 16 applies to any of the  
remaining 22 pages where it has been applied and include that information in its new decision. The  
Public Body must do so in order to comply with s. 72(2)(c) of the FOIP Act.  
Retaining Jurisdiction  
[para 231]  
There has been considerable delay surrounding this Inquiry, highlights of which include  
the following:  
• The access to information requests were made in 2012 (5 years ago) resulting in decisions by the  
Public Body with respect to 564 Records at Issue in the main Inquiry.  
• I issued the Notice of Inquiry to the parties on June 6, 2014 in the main Inquiry.  
• During the initial months of the Inquiry a preliminary evidentiary objection (referred to above as the  
PEO) was raised by an Applicant, which the other Applicant agreed with, that resulted in my  
Decision/Order dated December 31, 2014. A Judicial Review was filed by the Public Body with  
respect to that Decision/Order that has been adjourned sine die.  
• Unexpectedly, the Public Body released a batch of records on June 10, 2016 to the Commissioner’s  
Office (in partial compliance with my Decision/Order), delivered to me as the External Adjudicator,  
giving rise to this phase of the Inquiry.  
• During the initial months of this phase of the Inquiry, another matter arose about which the parties  
had the opportunity to make submissions and which subsequently was referred to another forum.  
• Thereafter, this phase of the Inquiry continued solely with respect to the June 10, 2016 bundle of  
records (initially 38 pages, now 35 pages). The present number of Records at Issue is 35 pages  
because during this phase of the Inquiry the Public Body released 3 additional pages of records to  
the Applicants (2 pages [32, 565] on September 30, 2016 and 1 page [120] on June 15, 2017).  
• As outlined throughout this Order, the majority of pages of the June 10, 2016 Records at Issue did  
not form part of the responsive records until the Public Body removed Non-Responsive and added  
new pages to which it applied exceptions on December 14, 2016 and released 3 pages to the  
Applicants on September 30, 2016 [32, 565] and June 15, 2017 [120]. At the times these steps  
were taken and decisions made, a large part of the information in the records was in the public  
domain, as detailed above.  
• The Public Body has produced many indices documenting changes and reconciling discrepancies  
for the June 10, 2016 Records at Issue with respect to the exceptions being relied on and the  
numbering for the pages (refer to Table in Appendix A).  
• The Records at Issue in the main Inquiry, which except for those that make up the June 10, 2016  
Records at Issue bundle, are not at issue during this phase and have not been reviewed. But with  
respect to my retaining jurisdiction over all matters related to this Inquiry, it is important to note that  
the original record count of 564 pages presently tallies in at 2,570 pages (less the pages that have  
been disclosed in whole or in part) according to the January 19, 2017 Index and the April 7, 2017  
Amended Index of Records.  
101  
• I have notified the parties that after this phase of the Inquiry is completed, the main Inquiry will  
continue with respect to the remaining Records at Issue, the completion of which has been  
extended until November 30, 2017.  
[para 232]  
Given the delay detailed above, the complexity and with a view to the efficient use of  
resources, I am retaining jurisdiction to consider the Public Body’s decision with respect to the June 10,  
2016 Records at Issue in compliance with this Order for Reconsideration. If it decides to disclose the  
records, the Public Body must provide them to both Applicants within 50 days of the receipt of this Order.  
If it decides not to disclose all or part of them, the Public Body should inform both of the Applicants of its  
decision and reasons, within 50 days of receipt of this Order for Reconsideration, with a copy to me as the  
External Adjudicator. I reserve my jurisdiction to ask for further submissions from the parties, including  
any affected third party(ies) given notice by the Public Body who make a Request for Review, and to  
make further determinations and rulings under the FOIP Act about the June 10, 2016 Records at Issue. I  
will inform the Public Body and the Applicants in due course of the results of any determinations I make in  
this regard.  
[para 233]  
The Public Body must comply with this Order for Reconsideration of its application of s.  
24 and s. 16 to the June 10, 2016 Records at Issue and inform both of the Applicants and myself as  
External Adjudicator within 50 days of receiving a copy of this Order, as required by s. 74(1) of the FOIP  
Act.  
[para 234]  
I order the Public Body to notify me, in writing, within 50 days of receiving a copy, that it  
has complied with the Order for Reconsideration.  
___________________________  
S. Dulcie McCallum, LL.B.  
External Adjudicator  
102  
ORDER F2017-61  
APPENDIX A: TABLE OF CONCORDANCE  
COLUMN A  
COLUMN B  
Aug. 6, 2014  
Main Inquiry  
Index of Records at Issue  
at Issue  
COLUMN C  
COLUMN D  
COLUMN E  
COLUMN F  
Jan. 19, 2017  
Main Inquiry  
COLUMN G  
Feb. 2, 2017  
Amended June  
COLUMN H  
Apr. 7, 2017  
Amended June  
COLUMN I  
Apr. 7, 2017  
Main Inquiry  
Aug-Sept 2012  
Jun. 10, 2016  
Sept. 30, 2016  
Dec. 14, 2016  
Amended June  
FOIP Request  
Listof  
Exemptions  
Index of Records Main Inquiry  
Index of Records 10, 2016 Index of Index of Records 10, 2016 Index of 10, 2016 Index of Index of Records  
at Issue  
(2,570 pages)  
32:  
Records atIssue at Issue  
(2,570 pages)  
32:  
Records atIssue Records atIssue at Issue  
(38 pages)  
(564 pages)  
32:  
(35 pages)  
32:  
(2,570 pages)  
32:  
32:  
32:  
32:  
32:  
Draft or  
information non-  
responsive  
[Not listed]  
Document  
January 5, 2011  
memo from Ray  
January 5, 2011  
memo from Ray  
Bodnarek to  
January 5, 2011  
memo from Ray  
Bodnarek to  
January 5, 2011  
memo from Ray  
Bodnarek to  
January 5, 2011  
memo from Ray  
Bodnarek to  
January 5, 2011  
memo from Ray  
Bodnarek to  
Non-Responsive Bodnarek to  
Allison Redford  
Allison Redford  
Allison Redford  
Allison Redford  
Allison Redford  
Allison Redford  
RELEASED  
RELEASED  
98:  
RELEASED  
98:  
RELEASED  
98:  
RELEASED  
98:  
RELEASED  
98:  
98:  
98:  
98:  
98:  
[No description]  
Email  
Email  
Email  
8 Dec 2010  
Email  
Email  
8 Dec 2010  
Email  
8 Dec 2010  
Email  
Email  
Exempted in  
entirety  
24(1)(a),  
24(1(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
99-107:  
99-107:  
99-107:  
99-102:  
99-102:  
99-102:  
99-102:  
99-102:  
99-102:  
Draft or  
[Not listed]  
Document  
Document  
Document  
Document  
Document  
Document  
Document  
information non-  
responsive  
Non-Responsive Non-responsive  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
27(1)(b)(ii)  
27(1)(b)(ii)  
27(1)(b)(ii)  
27(1)(b)(ii)  
103  
COLUMN A  
COLUMN B  
Aug. 6, 2014  
Main Inquiry  
COLUMN C  
COLUMN D  
COLUMN E  
COLUMN F  
Jan. 19, 2017  
Main Inquiry  
COLUMN G  
Feb. 2, 2017  
Amended June  
COLUMN H  
Apr. 7, 2017  
Amended June  
COLUMN I  
Apr. 7, 2017  
Main Inquiry  
Aug-Sept 2012  
Jun. 10, 2016  
Sept. 30, 2016  
Dec. 14, 2016  
FOIP Request  
Listof  
Exemptions  
Index of Records Main Inquiry  
Amended June  
Index of Records at Issue  
at Issue  
Index of Records 10, 2016 Index of Index of Records 10, 2016 Index of 10, 2016 Index of Index of Records  
at Issue  
Records atIssue at Issue  
(2,570 pages)  
103-107:  
Records atIssue Records atIssue at Issue  
(38 pages)  
(564 pages)  
103-107:  
(2,570 pages)  
103-107:  
(35 pages)  
103-107:  
(2,570 pages)  
103-107:  
103-107:  
103-107:  
103-107:  
103-107:  
Draft or  
information non-  
responsive  
[Not listed]  
[Shown as part of Document  
99-107]  
Document  
Document  
Document  
Document  
Document  
Non-responsive  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
Document  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
Non-Responsive  
27(1)(b)(ii)  
27(1)(b)(ii)  
27(1)(b)(ii)  
27(1)(b)(ii)  
27(1)(b)(ii)  
113-119:  
113-119:  
113-119:  
113-116:  
113-116:  
113-116:  
113-119:  
113-119:  
113-116:  
[Shown as part of [Not listed]  
113-127]  
Document  
Document  
Document  
Document  
Document  
Document  
Document  
Non-Responsive Non-responsive  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
Draft or  
information non-  
responsive  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)((ii)  
27(1)(b)((ii)  
27(1)(b)((ii)  
27(1)(b)((ii)  
27(1)(b)((ii)  
120:  
120:  
120:  
120:  
120:  
120:  
120:  
120:  
120:  
[Shown as part of [Not listed]  
113-127]  
Document  
Document  
Document  
RELEASED*  
Document  
RELEASED*  
Document  
RELEASED*  
Document  
RELEASED*  
Document  
RELEASED*  
Non-Responsive Non-responsive  
Draft or  
information non-  
responsive  
* Public Body  
intended to  
* Public Body  
intended to  
* Public Body  
intended to  
* Public Body  
intended to  
* Public Body  
intended to  
release Sept30,  
2016 but the  
actual release  
date was June  
15, 2017.  
release Sept30,  
2016 but the  
actual release  
date was June  
15, 2017.  
release Sept30,  
2016 but the  
actual release  
date was June  
15, 2017.  
release Sept30,  
2016 but the  
actual release  
date was June  
15, 2017.  
release Sept30,  
2016 but the  
actual release  
date was June  
15, 2017.  
104  
COLUMN A  
COLUMN B  
Aug. 6, 2014  
Main Inquiry  
COLUMN C  
COLUMN D  
COLUMN E  
COLUMN F  
Jan. 19, 2017  
Main Inquiry  
COLUMN G  
Feb. 2, 2017  
Amended June  
COLUMN H  
Apr. 7, 2017  
Amended June  
COLUMN I  
Apr. 7, 2017  
Main Inquiry  
Aug-Sept 2012  
Jun. 10, 2016  
Sept. 30, 2016  
Dec. 14, 2016  
FOIP Request  
Listof  
Exemptions  
Index of Records Main Inquiry  
Amended June  
Index of Records at Issue  
at Issue  
Index of Records 10, 2016 Index of Index of Records 10, 2016 Index of 10, 2016 Index of Index of Records  
at Issue  
(2,570 pages)  
129:  
Records atIssue at Issue  
(2,570 pages)  
129:  
Records atIssue Records atIssue at Issue  
(38 pages)  
(564 pages)  
129:  
(35 pages)  
129:  
(2,570 pages)  
129:  
129:  
129:  
129:  
129:  
[No description]  
Email  
8 Dec 2010  
Email  
8 Dec 2010  
Email  
Email  
8 Dec 2010  
Email  
8 Dec 2010  
Email  
Email  
Email from G.  
Sprague to L.  
Merryweather  
Exempted in  
entirety  
24(1)(a),  
24(1(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii),  
27(1)(c)(ii)  
210:  
210:  
210:  
210:  
210:  
210:  
210:  
210:  
210:  
[No description]  
December 29,  
2010 email from  
Renee Craig  
29 Dec 2010  
email from  
Renee Craig to  
Margaret  
December 29,  
2010 email from  
Renee Craig  
29 Dec 2010  
email from  
Renee Craig to  
Margaret  
December 29,  
2010 email from  
Renee Craig to  
Margaret  
29 Dec 2010  
email from  
Renee Craig to  
Margaret  
29 Dec 2010  
email from  
Renee Craig to  
Margaret  
December 29,  
2010 email from  
Renee Craig to  
Margaret  
Partial severing  
24(1)(a)  
Partially released Dallimore  
24(1)(a)  
Partially released Dallimore  
24(1)(a)  
Dallimore  
Dallimore  
Dallimore  
Dallimore  
Partially released  
Partially released Partially released Partially released Partially released Partially released  
24(1)(a)  
24(1)(a)  
24(1)(a)  
24(1)(a)  
24(1)(a)  
24(1)(a)  
211:  
211:  
211:  
211:  
211:  
211:  
211:  
211:  
211:  
[No description]  
December 29,  
2010 email from  
Jeff Henwood  
29 Dec 2010  
email from Jeff  
Henwood to  
Renee Craig  
December 29,  
2010 email from  
Jeff Henwood  
29 Dec 2010  
email from Jeff  
Henwood to  
Renee Craig  
December 29,  
2010 email from  
Jeff Henwood to  
Renee Craig  
29 Dec 2010  
email from Jeff  
Henwood to  
Renee  
29 Dec 2010  
email from Jeff  
Henwood to  
Renee  
December 29,  
2010 email from  
Jeff Henwood to  
Renee Craig  
Partial severing  
24(1)(b)(i)  
Partially released  
24(1)(a)  
Partially released  
Partially released 24(1)(b)(i)  
24(1)(b)(i)  
Partially released Partially released Partially released Partially released Partially released  
24(1)(b)(i) 24(1)(b)(i) 24(1)(b)(i) 24(1)(b)(i) 24(1)(b)(i)  
105  
COLUMN A  
COLUMN B  
Aug. 6, 2014  
Main Inquiry  
COLUMN C  
COLUMN D  
COLUMN E  
COLUMN F  
Jan. 19, 2017  
Main Inquiry  
COLUMN G  
Feb. 2, 2017  
Amended June  
COLUMN H  
Apr. 7, 2017  
Amended June  
COLUMN I  
Apr. 7, 2017  
Main Inquiry  
Aug-Sept 2012  
Jun. 10, 2016  
Sept. 30, 2016  
Dec. 14, 2016  
FOIP Request  
Listof  
Exemptions  
Index of Records Main Inquiry  
Amended June  
Index of Records at Issue  
at Issue  
Index of Records 10, 2016 Index of Index of Records 10, 2016 Index of 10, 2016 Index of Index of Records  
at Issue  
Records atIssue at Issue  
(2,570 pages)  
258-264  
Records atIssue Records atIssue at Issue  
(38 pages)  
(564 pages)  
258-264  
(2,570 pages)  
258-264  
(35 pages)  
258-264  
(2,570 pages)  
258-264  
258-264  
258-264  
258-264  
258-264  
[Shown as part of [Not listed]  
258-271]  
Document  
[Shown as 258-  
261 and 262-  
264]  
[Shown as 258-  
261 and 262-  
264]  
[Shown as 258-  
261 and 262-  
264]  
[Shown as 258-  
261 and 262-  
264]  
[Shown as 258-  
261 and 262-  
264]  
[shown as 258-  
261 and 262-  
264]  
16(1)(a)(ii),  
16(1)(b),  
[No description]  
16(1)(c),  
Document  
Document  
Document  
Document  
Document  
Document  
Exempted in  
entirety  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c),  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c)  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c)  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
27(1)(b)(ii)  
27(1)(b)(ii)  
27(1)(b)(ii)  
27(1)(b)(ii)  
27(1)(b)(ii)  
262-264  
262-264:  
262-264:  
262-264:  
262-264:  
262-264:  
262-264:  
262-264:  
262-264:  
[Shown as part of [Not listed]  
258-271]  
[Shown as part of Document  
258-264]  
[No description]  
Document  
Document  
Document  
Document  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
[No description]  
Document  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
Exempted in  
entirety  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c),  
24(1)(a),  
27(1)(b)(ii)  
27(1)(b)(ii)  
27(1)(b)(ii)  
27(1)(b)(ii)  
27(1)(b)(ii)  
27(1)(b)(ii)  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
27(1)(b)(ii)  
106  
COLUMN A  
COLUMN B  
Aug. 6, 2014  
Main Inquiry  
COLUMN C  
COLUMN D  
COLUMN E  
COLUMN F  
Jan. 19, 2017  
Main Inquiry  
COLUMN G  
Feb. 2, 2017  
Amended June  
COLUMN H  
Apr. 7, 2017  
Amended June  
COLUMN I  
Apr. 7, 2017  
Main Inquiry  
Aug-Sept 2012  
Jun. 10, 2016  
Sept. 30, 2016  
Dec. 14, 2016  
FOIP Request  
Listof  
Exemptions  
Index of Records Main Inquiry  
Amended June  
Index of Records at Issue  
at Issue  
Index of Records 10, 2016 Index of Index of Records 10, 2016 Index of 10, 2016 Index of Index of Records  
at Issue  
Records atIssue at Issue  
(2,570 pages)  
265-268:  
Records atIssue Records atIssue at Issue  
(38 pages)  
(564 pages)  
265-268:  
(2,570 pages)  
265-268:  
(35 pages)  
265-268:  
(2,570 pages)  
265-268:  
265-268:  
265-268:  
265-268:  
265-268:  
[Shown as part of [Not listed]  
258-271]  
Document  
Document  
Document  
Document  
Document  
Document  
Document  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(a)(ii),  
16(1)(b),  
[No description]  
16(1)(c),  
24(1)(a),  
16(1)(c)(i),  
24(1)(a),  
16(1)(c),  
24(1)(a),  
16(1)(c)(i),  
24(1)(a),  
16(1)(c),  
24(1)(a),  
16(1)(c),  
24(1)(a),  
16(1)(c)(i),  
24(1)(a),  
Exempted in  
entirety  
16(1)(a)(ii),  
16(1)(b),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
565:  
565:  
565:  
565:  
565:  
565:  
565:  
565:  
565:  
[Not listed]  
[Not listed]  
Action Request  
Cover Sheet  
Action Request  
Cover Sheet  
Action Request  
Cover Sheet  
Action Request  
Cover Sheet  
Action Request  
Cover Sheet  
Action Request  
Cover Sheet  
Action Request  
Cover Sheet  
Non-Responsive RELEASED  
RELEASED  
626-634:*  
Document  
RELEASED  
645-653:*  
Document  
RELEASED  
645-648:  
RELEASED  
645-648:  
RELEASED  
645-653:*  
Document  
566-569:  
566-569:  
566-569:*  
Document  
566:  
[Not listed]  
[Not listed]  
Email  
Document  
Document  
Non-Responsive 24(1)(a),  
27(1)(c)(ii)  
*Mistake in  
numbering and  
number ofpages number ofpages  
corrected by the corrected by the  
Public Body Feb. Public Body Feb. 24(1)(b)(i),  
*Mistake in  
numbering and  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c)(i),  
24(1)(a),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
*Only 645-648  
are at issue in  
this phase ofthe  
Inquiry  
*Page 568 in the  
June 10, 2016  
Records atIssue  
(later  
567:  
Email  
2, 2017  
2, 2017  
27(1)(a),  
27(1)(b)(ii)  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c)(i),  
24(1)(a),  
renumbered  
ABJ000647) is  
different from  
page 568  
24(1)(b)(i),  
27(1)(c)(ii)  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c)(i),  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c)(i),  
24(1)(b)(i),  
107  
COLUMN A  
COLUMN B  
Aug. 6, 2014  
Main Inquiry  
COLUMN C  
COLUMN D  
COLUMN E  
COLUMN F  
Jan. 19, 2017  
Main Inquiry  
COLUMN G  
Feb. 2, 2017  
Amended June  
COLUMN H  
Apr. 7, 2017  
Amended June  
COLUMN I  
Apr. 7, 2017  
Main Inquiry  
Aug-Sept 2012  
Jun. 10, 2016  
Sept. 30, 2016  
Dec. 14, 2016  
FOIP Request  
Listof  
Exemptions  
Index of Records Main Inquiry  
Amended June  
Index of Records at Issue  
at Issue  
Index of Records 10, 2016 Index of Index of Records 10, 2016 Index of 10, 2016 Index of Index of Records  
at Issue  
(2,570 pages)  
568:  
Records atIssue at Issue  
(2,570 pages)  
24(1)(a),  
Records atIssue Records atIssue at Issue  
(35 pages) (2,570 pages)  
(38 pages)  
(564 pages)  
released on  
24(1)(a),  
27(1)(a),  
Sept. 30, 2016  
24(1)(b)(i),  
27(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
ACTION  
REQUEST  
COVER SHEET  
27(1)(b)(ii)  
27(1)(b)(ii)  
RELEASED  
569-575:  
Document  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
___________  
566-569  
renumbered  
as 645-653  
Document  
16(1)(a)(ii),  
16(1)(b),  
16(1)(c)(i),  
24(1)(a),  
24(1)(b)(i),  
27(1)(a),  
27(1)(b)(ii)  
108  


© 2022 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission