Inquiry about McAbee Fossil beds

Order F22-34

MINISTRY OF FORESTS, LANDS, NATURAL RESOURCE OPERATIONS

AND RURAL DEVELOPMENT

Erika Syrotuck

Adjudicator

July 14, 2022

Cite:

2022 BCIPC 38

Quicklaw Cite: [2022] B.C.I.P.C.D. No. 38

Summary: The applicant requested records relating to the McAbee Fossil beds from

the Ministry of Forests, Lands, Natural Resource Operations and Rural Development

(Ministry). In response, the Ministry provided 8,936 pages of responsive records,

withholding some information under a number of different exceptions to disclosure. The

adjudicator found that the Ministry was authorized to refuse to disclose the information in

dispute under ss. 13(1), and 14 and some of the information under ss. 16(1)(a)(iii) and

18(a). The Ministry was required to withhold some information in dispute under ss. 12(1)

and 22(1). However, the Ministry was required to disclose some of the information it

withheld under ss. 12(1), 16(1)(a)(iii), 18(a) and 22(1). The adjudicator found that

s. 16(1)(c) did not apply to the information considered under that section. The Ministry

also withheld some information under common law settlement privilege, but did not

provide the records in dispute. The adjudicator ordered the Ministry to produce the

records for the purpose of adjudicating settlement privilege. The applicant also

complained that the Ministry did not adequately search for records. The adjudicator

ordered the Ministry to conduct a further search for text messages and deleted emails.

Statutes Considered: Freedom of Information and Protection of Privacy Act, ss. 6(1),

12(1), 13(1), 14, 16(1)(a)(iii), 16(1)(c), 18(a), 22(1), 22(2), 22(2)(f), 22(2)(g), 22(2)(i),

22(3)(a), 22(3)(d), 22(3)(g), 22(3)(i), 22(4)(e), 44(1)(b), 44(2.1), 44(3), Schedule 1; Indian

Act RSC 1985 c. 1-5.

INTRODUCTION

[1]

This inquiry is about an applicant’s request, under the Freedom of

Information and Protection of Privacy Act (FIPPA), to the Ministry of Forests,

Lands, Natural Resource Operations and Rural Development (Ministry) for

records relating to the McAbee Fossil beds.¹

¹The applicant initially made two requests and the Ministry joined them into one request before

responding. This is a summary of the joined request.

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[2]

In response to the applicant’s access request, the Ministry provided 8,936

pages of records. It withheld some information under a number of different

exceptions to disclosure in part 2 of FIPPA.

[3]

The applicant complained to the Office of the Information and Privacy

Commissioner (OIPC) that the Ministry did not conduct an adequate search for

records as required by s. 6(1) of FIPPA. The applicant subsequently asked the

OIPC to review the Ministry’s decision to withhold information under the

exceptions in part 2 of FIPPA.

[4]

Mediation did not resolve the issues and the matter proceeded to inquiry.

[5]

At the inquiry, the applicant agreed to the Ministry’s request to remove

some information in dispute from the inquiry.²Accordingly, I will not consider the

Ministry’s decision with respect to this information.³

[6]

In addition, the Ministry reconsidered its decision to withhold some

information in dispute. As a result, it disclosed additional information to the

applicant. It also clarified that it was no longer relying on two exceptions⁴but

requested to add settlement privilege to the inquiry. Although the applicant

objected, the OIPC gave permission to the Ministry to add settlement privilege as

an issue in the inquiry.

[7]

Also, during the inquiry, I wrote to the parties to seek further submissions

on s. 18(b) (disclosure harmful to an endangered, threatened or vulnerable

species) and how it applied to one set of maps concerning rattlesnakes. The

Ministry suggested this information be removed from the information in dispute

and the applicant consented. As a result, I will not decide s. 18(b) and the

applicant will not get access to the maps about the location of rattlesnakes.⁵

ISSUES

[8]

At this inquiry, I must decide the following issues:

1. Did the Ministry conduct an adequate search for responsive records as

required under s. 6(1) of FIPPA?

2. Is the Ministry required to withhold the information in dispute under

ss. 12(1) and 22(1) of FIPPA?

²The applicant agreed to remove all the information in dispute under s. 15 and a government IDIR

that the Ministry withheld under ss. 22 and 15 on page 924 of part 4 of the records.

³In other words, the applicant will not get access to this information through this inquiry process.

⁴Sections 3 and 17.

⁵Pages 983-985 in part 2 of the records.

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3. Is the Ministry authorized to withhold the information in dispute under

ss. 13(1), 14, 16(1)(a)(iii), 16(1)(c), and 18(a) of FIPPA?

4. Is the Ministry authorized to withhold information in dispute under

settlement privilege?

[9]

Under s. 57(1) of FIPPA, the burden of proof is on the Ministry to show

that the applicant has no right of access under ss. 12(1), 13(1), 14, 16(1)(a)(iii),

16(1)(c) and 18(a). Section 57(2) of FIPPA states that the applicant must prove

that disclosure of a third party’s personal information would not be an

unreasonable invasion of that third party’s personal privacy.

[10] FIPPA does not set out the burden with regards to s. 6(1). Past orders

have found that the burden is on the Ministry to show that it has performed its

duties under s. 6(1).⁶

[11] In addition, the Ministry bears the burden of proving its claim of settlement

privilege.⁷

DISCUSSION

Background

[12] The applicant’s request is for records relating to the McAbee Fossil Beds

Heritage Site (McAbee), located near the village of Cache Creek, British

Columbia.

[13] The applicant is a paleontologist who was involved in McAbee.

Information at issue

[14] In response to the applicant’s access request, the Ministry provided 8,936

pages of records relating to McAbee. Many of those records have been

disclosed, fully or partially. The majority of the records containing the information

in dispute are emails and attachments. In addition, some information in dispute is

in various other kinds of documents such as handwritten notes, agreements,

information notes, cabinet submissions, plans, meeting agendas, letters and

documents relating to consultations with First Nations. I will discuss the specific

information and/or records in dispute as they relate to each exception.

Section 6(1) – adequate search

[15] Section 6 (1) of FIPPA says:

⁶Order F20-13, 2020 BCIPC 15 at para 13, for example.

⁷Order F21-11, 2021 BCIPC 15 at para 5.

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The head of a public body must make every reasonable effort to assist

applicants and to respond without delay to each applicant openly,

accurately and completely.

[16] Section 6(1) imposes a number of obligations on a public body. As

mentioned above, the applicant’s complaint in this case is that the Ministry did

not adequately search for records responsive to the access request. It is well

established that s. 6(1) requires a public body to conduct an adequate search for

records.⁸

[17] A public body’s search efforts should be those that a fair and rational

person would find acceptable.⁹Section 6(1) does not impose a standard of

perfection.¹⁰

[18] With regards to the type of evidence required to show that a public body

conducted an adequate search, former Commissioner Loukidelis said that

a public body should

…candidly describe all the potential sources of records, identify those it

searched and identify any sources that it did not check (with reasons for

not doing so). It should also indicate how the searches were done and how

much time its staff spent searching for the records.¹¹

[19] The Ministry says that it has fulfilled its duty under s. 6(1) to respond

openly, accurately and completely.

[20] To illustrate its search efforts, the Ministry has provided evidence from its

Freedom of Information Coordinator (Coordinator), who attests to the following:

 After receiving the applicant’s request, Information Access Operations

(IAO)¹²emailed the Ministry to make it aware of the access request with

a “call for records”. This is consistent with the standard practice between

the Ministry and IAO when IAO receives a new access request.

 Because the request was about McAbee, the Ministry determined that

responsive records would be with the BC Heritage Branch. No other

program area within the Ministry is responsible for McAbee.

 The Ministry canvassed all relevant employees within the Heritage

Branch who potentially had relevant records. These employees were

⁸Order 02-18, 2002 42443 (BCIPC) at para 7.

⁹Ibid.

¹⁰Ibid.

¹¹Order 00-32, 2000 BCIPCD No. 35, accessible at http://www.oipcbc.org/orders/Order00-

32.html at page 5.

¹²IAO is part of the Ministry of Citizens’ Services. IAO processes access requests on behalf of

ministries of the provincial government. See Affidavit of the Team Lead, Information Access

Operations at paras 3-4.

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instructed to perform searches using the search feature in the Ministry’s

file explorer LAN drive. The Ministry also searched the Heritage

Branch’s shared electronic folders, individual electronic folders, emails

and calendars of relevant employees,¹³Heritage Branch notebooks,

calendars and paper files.

 During mediation, it became apparent that a small number of responsive

records existed within the Minister’s office. These records were located

and released in full in October 2020.

 The Ministry performed additional searches when the applicant initiated

his adequate search complaint.

 The Ministry estimates that it took Heritage Branch staff close to 100

hours to search, review and upload documents.

 The Coordinator has no reason to believe that any other areas of the

Ministry would have additional responsive records.

 The Coordinator has no reason to believe that there are additional

records in the custody or under the control of the Ministry that are

responsive to the applicant’s access request other than the records that

have already been located, retrieved and provided to the applicant.

[21] The Ministry says that the above evidence demonstrates that the Ministry

has made a significant effort to find all possible responsive records.¹⁴It says that

it has described all potential sources of records. With regard to sources that it

has not searched, the Ministry says it has explained its reasons for not doing so.

It says that the Ministry and IAO have no reason to believe that there are any

further responsive records. Overall, the Ministry submits that a fair and rational

person would find the Ministry’s search efforts reasonable.

[22] The Applicant submits that there are communications missing from the

records provided by the Ministry in response to his access request. First, he says

that he examined a subset of the emails between himself and the Senior

Stewardship Officer, Paleontology of the Heritage Branch at the Ministry

(Stewardship Officer) with the Heritage Branch, who is in charge of the McAbee

fossil beds project. The applicant says that he compared those emails with the

first four disclosure packages and found 252 emails missing from the documents

provided by the Ministry. The applicant says that the emails provided between

him and the Stewardship Officer end June 2017, but the applicant’s records show

emails exchanges as late as May 2018. The applicant also points to two specific

interactions he had with the Ministry and says that emails related to those

interactions are missing. The applicant provided a list of the date and times of the

missing emails but says that since he only searched for a subset of missing

emails, the list represents a minimum of emails absent from the records

provided.

¹³Including the Heritage Branch director.

¹⁴Information in this paragraph is from the Ministry’s initial submissions, paras 50-51.

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[23] The applicant also says that the Ministry did not provide records of phone

conversations between him and the Stewardship Officer and the Manager,

Stewardship and Historic Place Operations at the Ministry (Manager). Further,

the applicant says that he recalls hearing a McAbee contractor refer to texting

with the Stewardship Officer concerning McAbee business, yet there are no text

messages in the responsive records.¹⁵

[24] In reply to the applicant’s submissions, the Ministry says that the

Stewardship Officer and the Manager conducted further searches of their email

and as a result it located, processed and released 324 additional pages of

records.¹⁶However, the Ministry says that not all of these pages were actually

missing from the records package.¹⁷The Ministry provided evidence from

a paralegal with the Ministry of Attorney General, who conducted a search of the

records already provided for a subset of the emails identified by the applicant as

missing and was able to find some but not all of those emails.¹⁸Regarding the

records that were missing from the Ministry’s initial response, the Ministry says

that this was an understandable oversight given the high volume of records in

this inquiry.¹⁹

[25] Additionally, the Ministry says that any text messages, notes about phone

conversations and emails not already provided were likely deleted²⁰or not in its

possession because the Stewardship Officer and the Manager deemed them to

be transitory records.²¹The Ministry says that it is the expected practice of

government employees to manage their emails and other records in a way that

preserves non-transitory information and properly disposes of transitory

information.²²Both the Stewardship Officer and Manager say that they regularly

delete transitory emails and believe they would have deleted the emails that the

applicant believes are missing shortly after receipt.²³

¹⁵The applicant also says that he subsequently made an access request to the Royal BC Museum

(Museum) and that some records appear to be missing from the Museum’s disclosure. The Ministry

says, and I agree, that the adequacy of a different public body’s response to an access request is

outside of the scope of this inquiry.

¹⁶Ministry’s reply submissions, para 5.

¹⁷Ministry’s reply submissions, para 8.

¹⁸Affidavit of the Paralegal, para 4-8.

¹⁹Ministry’s reply submissions, para 25.

²⁰Before the access request was received. At para 17 of its reply submissions, the Ministry

acknowledges that once a public body receives an access request it must keep all responsive

records, including transitory records.

²¹Ministry’s reply submissions, paras 19 and 20, affidavit #2 of the Stewardship Officer at

paras 7-8 and affidavit of the Manager at paras 10-11.

²²Ministry’s reply submissions, para 14.

²³Affidavit #2 of the Stewardship Officer at para 7; affidavit of the Manager at para 10.

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[26] Despite the fact that some records were not initially provided to the

applicant in response to the access request, the Ministry maintains that it has

met its duty under s. 6(1) to conduct an adequate search for records.²⁴The

Ministry reiterates that it should not be held to a standard of perfection and says

that it is not motivated to intentionally exclude records from issue in this inquiry,

let alone records that the applicant already has.²⁵It says that it has demonstrated

good faith by locating and producing 8,936 pages of responsive records.²⁶It says

there is no evidence of anything other than an understandable oversight in

locating certain additional records.²⁷

[27] After reviewing the above evidence, I find that, for the most part, the

Ministry’s search efforts were fair and reasonable. For example, I find the

process described by the Coordinator to be logical. I also accept that the Ministry

acted in good faith and did not intentionally exclude records.

[28] However, in response to the applicant’s complaint that text messages,

emails and notes about phone conversations are missing from the responsive

records, the Ministry says it legitimately deleted these kinds of records because

they were transitory. These records bear further comment.

[29] First, I am satisfied that the Ministry adequately searched for handwritten

or electronic notes documenting phone conversations. The Ministry provided

several sets of handwritten notes as responsive records in this inquiry. Based on

this and the evidence of the Coordinator, who says that Heritage Branch

employees were instructed to search notebooks, I am satisfied that the Ministry

both searched for handwritten notes and that no further notes exist. Further, the

Coordinator’s evidence is that Ministry employees were instructed to search the

LAN drive and their electronic folders. Based on this, I am satisfied that any

electronic notes would have been captured by the Ministry employees’ searches.

[30] However, I am not satisfied that the Ministry adequately searched for text

messages. Nothing in the Coordinator’s evidence specifically addresses whether

or not the Ministry instructed Heritage Branch employees to search for text

messages. The Stewardship Officer and the Manager say that they would have

treated text messages they sent or received not already captured in the

responsive records as transitory and would have no longer had them at the time

of the access request. In my opinion, this evidence does not adequately address

whether these employees actually searched for text messages. I also note that

none of the records that the Ministry provided are discrete text messages. For

these reasons, I am not satisfied that the Ministry adequately searched for text

messages.

²⁴Ministry’s reply submissions, para 10.

²⁵Ministry’s reply submissions, paras 6 and 10.

²⁶Ministry’s reply submissions, para 4.

²⁷Ministry’s reply submissions, para 7.

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[31] In addition, I find that conducting an adequate search in this case required

the Ministry to search for emails in its “deleted items” folder, but the Ministry’s

evidence does not establish that it did so.

[32] It is well established that public bodies need to search for deleted emails.

In her report on this very topic, former Commissioner Denham said that public

bodies must search for deleted emails that are retrievable without excessive

efforts.²⁸More specifically, the Commissioner said that emails in an employee’s

“deleted items” folder must be searched in response to any access request

because emails in this folder are readily retrievable by performing an automated

search. Emails in the “deleted items” folder can be expunged from that folder and

moved into a “recover deleted” folder, but it will only be necessary to search

there in instances where there is a reasonable belief that this folder contains

responsive records.²⁹

[33] As noted above, the Ministry says that some of the emails were deleted.

I note that neither the Stewardship Officer nor the Manager explained what they

meant when they said emails were deleted, so it is not clear if they mean emails

were moved into the “deleted items” folder or into the “recover deleted” folder.

Based on the evidence provided by the Ministry, and former Commissioner

Denham’s comments, I find that the Ministry had a duty to at least search the

“deleted items” folder.

[34] However, I am not satisfied that the Ministry, including the Stewardship

Officer and Manager, actually searched its deleted emails. This is because

nothing in the Ministry’s evidence indicates that it turned its mind to whether it

should or did search for deleted emails.

[35] Having found that the Ministry did not adequately perform its duty, I must

decide what remedy is appropriate.³⁰

[36] Given the passage of time, I recognize that it may be less likely that

searching for deleted emails will result in the Ministry locating additional

responsive records. However, because the Stewardship Officer and Manager did

not explain what they meant by “delete” it is possible that some items remain.

Therefore, I am ordering the Ministry to search for deleted emails that are

retrievable without excessive efforts. To be clear, I am not ordering the Ministry

to search “recover deleted” or restore backups.³¹

²⁸Investigation Report 15-03, 2015 BCIPC 63 at page 17.

²⁹Ibid.

³⁰The commissioner’s discretion comes from s. 58(3)(a), which says that the commissioner may

require that a duty imposed under the Act be performed.

³¹FIPPA was amended after the public body made its initial submission but before it made its

reply submissions. The issue of which version of the legislation should apply was not raised by

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[37] Similarly, I have decided to order the Ministry to search for text messages

responsive to the applicant’s request.

[38] I turn now to whether the Ministry properly applied the exceptions to

disclosure. The applicant did not make submissions about any of the exceptions

to disclosure.

Section 14

[39] Section 14 allows a public body to refuse to disclose information that is

subject to solicitor-client privilege. Section 14 encompasses both legal advice

privilege and litigation privilege. Only legal advice privilege is at issue in this

inquiry.

[40] Legal advice privilege applies to communications that:

i)

are between solicitor and client;

ii)

iii)

entail the seeking or giving of legal advice; and

are intended to be confidential by the parties.³²

[41] Legal advice privilege also applies to information that, if disclosed, would

reveal or allow an accurate inference to be made about privileged information.

For example, legal advice privilege extends to internal client communications that

transmit or comment on privileged communications with lawyers.³³

[42] The Ministry says that the information it has withheld under s. 14 is not

direct communications with a lawyer. Rather, the Ministry says that the withheld

information refers to legal advice from the Legal Services Branch (LSB) of the

Ministry of Attorney General to the Ministry or reveals an intention by the Ministry

to seek legal advice from LSB.³⁴It says that disclosure of the withheld

information would reveal the Ministry’s internal discussions about legal advice,

and therefore relates to seeking, formulating or giving legal advice.³⁵

[43] The Ministry applied s. 14 to five different records but did not provide them

for my review. Rather, the Ministry provided affidavit evidence from various LSB

lawyers and from the Stewardship Officer. This approach is consistent with the

BC Supreme Court’s stated preference for the OIPC to resolve disputes about

solicitor-client privilege on the basis of affidavit evidence from lawyers; however,

the parties. Since my order does not conflict with the updated version, there is no need for me to

decide which version of the legislation applies.

³²Solosky v The Queen 1979 9 (SCC) at page 837.

³³Ibid at para 12 citing Mutual Life Assurance Co. of Canada v Canada (Deputy Attorney

General) [1988] OJ No. 1090 (Ont. SCJ).

³⁴Ministry’s initial submissions, paras 125 and 129.

³⁵Ministry’s initial submissions, para 130.

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the court also noted that an affidavit from the instructing client may be a suitable

alternative.³⁶I will address the suitability of the evidence from the Stewardship

Officer below.

[44] Since each record involves different circumstances and different lawyers,

I will go through the Ministry’s evidence record by record.

Record 1 – advice relating to Order in Council

[45] The Ministry has applied s. 14 to a small portion of a five-page document

relating to an Order in Council.³⁷

[46] The Ministry provided evidence from the Ministry of Attorney General’s

Registrar of Regulations (Registrar), who is a lawyer with the Office of Legislative

Counsel.³⁸The Registrar says that Legislative Counsel review Orders in Council

and provide written legal advice to the Government, acting through Cabinet. The

Registrar deposes that they have reviewed the information at issue and says that

the Ministry has applied s. 14 to the portion that reflects Legislative Counsel’s

advice. The Registrar says that legal advice provided to Cabinet is advice that is

supplied with an expectation that it will not be disclosed more broadly than is

necessary based on employees’ duties.

[47] The Ministry also provided evidence from the Stewardship Officer who

says that they helped prepare the document at issue and that it includes

Legislative Counsel’s advice to Cabinet regarding the Order in Council.³⁹

[48] I am satisfied that the information at issue would reveal confidential legal

advice given from Legislative Counsel to the government of British Columbia

regarding the Order in Council. In addition to the affidavit evidence, which

I accept, I can see that the information in the document surrounding the s. 14

information supports the Ministry’s evidence.⁴⁰I find that solicitor-client privilege

applies to this information.

Record 2 – record of consultation

[49] The next document containing information withheld under s. 14 is an

11-page record of consultation with First Nations about McAbee.⁴¹The Ministry

³⁶British Columbia (Minister of Finance) v British Columbia (Information and Privacy

Commissioner 2021 BCSC 266 at para 85.

³⁷Page 179 at part 1 of the records. I note that the Ministry applied s. 12(1) to the entire

document.

³⁸All of the information in this paragraph is from the Registrar of Regulations’ affidavit.

³⁹Affidavit #1 of the Stewardship Officer at para 26.

⁴⁰This information is not disclosed to the applicant because the Ministry has applied s. 12(1) to the

entire document, and so I cannot be more specific.

⁴¹Ministry’s initial submissions, para 193. Record at pages 558-568 of part 1 of the records.

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has withheld several portions of this document under s. 14, including one entire

page.⁴²The Ministry also withheld some information in the document under s. 16,

some of which overlaps with the information withheld under s. 14. It disclosed the

remainder of the document.

[50] The Stewardship Officer says that they created the document and that it

references legal advice from a named LSB lawyer.⁴³The Stewardship Officer

says that the title of the document expressly mentions “legal opinions” relating to

McAbee. The Stewardship Officer also says that “many of the instances” of the

information withheld under s. 14 refer to legal advice or in one instance, steps the

lawyer was going to take in order to provide the Ministry with legal advice. The

Stewardship Officer says that at all times communications with legal counsel

were intended to be confidential.

[51] The Ministry also provided evidence from the lawyer with LSB who

confirms that they provided the legal advice referenced at certain pages of the

document and that it is broadly about the duty to consult with First Nations about

the future management of the McAbee Fossil Site.⁴⁴The lawyer says they

provided the advice via email and provided the date range and names of the

recipients of the emails.⁴⁵

[52] After carefully reviewing the Ministry’s evidence, I decided it did not clearly

address all of the portions at issue under s. 14. I wrote back to the Ministry to

offer it an opportunity to clarify and/or supplement its evidence.⁴⁶

[53] In response, the Ministry provided further submissions and an additional

affidavit from the Stewardship Officer. The Ministry clarified that the lawyer’s

evidence was meant to address all of the portions of the record of consultation. It

also provided an additional affidavit from the Stewardship Officer clarifying that

the pages in question refer to legal advice received by the Ministry.⁴⁷

[54] Based on all of the above evidence, I am satisfied that all of the

information that the Ministry withheld under s. 14 in the record of consultation

would directly or indirectly reveal confidential legal advice provided by the LSB

lawyer to the Ministry.

⁴²Pages 558, 559, 560, 561, 562, 564 and 567 of part 1 of the records.

⁴³The information in this paragraph is from the affidavit #1 of the Stewardship Officer at paras 27

and 31.

⁴⁴Affidavit of SB at paras 6 and 7.

⁴⁵Affidavit of SB at para 7.

⁴⁶By letter dated April 4, 2022.

⁴⁷Ministry’s April 12, 2022 letter and Affidavit #3 of the Stewardship Officer at para 6.

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Record 3 – Cabinet Submission

[55] The third document is a “Cabinet submission – Request for Decision.”⁴⁸

The Ministry withheld only a small portion of the information in this document

under s. 14 but applied s. 12(1) to the whole document.

[56] The Stewardship Officer says that the information withheld under s. 14

explicitly refers to legal advice that the Stewardship Officer had previously

received from the Aboriginal Law Group of the Legal Services Branch.⁴⁹More

specifically, the Stewardship Officer says that they received the legal advice via

email on a specific date from a named lawyer who has since retired.⁵⁰The

Stewardship Officer says that at all times communications with legal counsel

were intended to be confidential.⁵¹

[57] Although it is preferable to have evidence regarding solicitor-client

privilege from the lawyer who provided the advice, in this case the advising

lawyer is retired. Given the Stewardship Officer’s direct knowledge, I find that

evidence from the Stewardship Officer is a suitable alternative.

[58] I accept the Stewardship Officer’s evidence that the information at issue

explicitly refers to confidential legal advice received from an LSB lawyer. I find

that legal advice privilege applies to the information in dispute.

Record 4 – email about settlement negotiations

[59] The fourth record is the body of one email between Ministry employees,

including the Stewardship Officer.⁵²Disclosed information in the email chain

indicates that the withheld portion of the email is an update given to the Assistant

Deputy Minister on the status of settlement negotiations.⁵³

[60] The Stewardship Officer says that the withheld information contains

a combination of explicit legal advice and information that would allow an

accurate inference as to other legal advice.⁵⁴More specifically, the Stewardship

Officer says that the email explicitly refers to receiving advice from LSB in the

context of settlement negotiations and the steps that the Ministry took upon

receipt of that advice. The Stewardship Officer says that the advice referred to in

⁴⁸Page 1635, part 1 of the records in dispute.

⁴⁹Affidavit #1 of the Stewardship Officer at para 28.

⁵⁰Affidavit #1 of the Stewardship Officer at para 28.

⁵¹Affidavit #1 of the Stewardship Officer at para 31.

⁵²Page 643, part 3 of the records in dispute. The Ministry also applied s. 13(1) and settlement

privilege to this record but given my finding, it is not necessary to consider whether these

exceptions apply.

⁵³The information disclosed at pages 643-644 of part 3 of the records in dispute. See also

affidavit #1 of the Stewardship Officer at para. 46.

⁵⁴Information in this paragraph is from affidavit #1 of the Stewardship Officer at paras 29 and 31.

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the email was provided by a named lawyer at LSB who has since retired.

Records disclosed by the Ministry indicate that the named lawyer was involved in

giving advice about settlement compensation. The Stewardship Officer says that

communications with legal counsel were intended to be confidential at all times.

[61] As with the record above, the Ministry has not provided evidence directly

from the advising lawyer, who is now retired. Rather, the Ministry has provided

evidence from the Stewardship Officer, who was on the email chain at issue was

involved in the settlement negotiation process. For these reasons, I find that the

Stewardship Officer’s evidence is appropriate to rely on in this case.

[62] Based on the above evidence, I am satisfied that, if disclosed, the portion

of the email at issue would directly disclose or allow an accurate inference to be

made about confidential legal advice given from LSB to the Ministry.

Record 5 – intention to seek legal advice

[63] The Ministry applied s. 14 to information in an email between Ministry

employees that the Ministry says communicates an intention to seek legal

advice.⁵⁵

[64] On its own, an intention to seek legal advice is usually not privileged.⁵⁶

However, where there is evidence that the public body sought and received legal

advice about the matter they intended to seek legal advice about, past orders

have found that disclosure of the intention to seek that legal advice is privileged

because it would reveal confidential communications between a lawyer and

client.⁵⁷

[65] The Ministry has provided affidavit evidence from a Senior Legislation and

Policy Analyst (Policy Analyst) at the Ministry, who sent the email at issue.⁵⁸The

Policy Analyst says that the email at issue expresses their intent to seek a legal

opinion relating to delegation under the Heritage Conservation Act. The Policy

Analyst says that they subsequently received a legal opinion from a named

lawyer with LSB about delegation under the Heritage Conservation Act.⁵⁹

Further, the Policy Analyst states that, at all times, communications with legal

counsel and the intention to seek legal advice were intended to be confidential.

[66] The Ministry also provided affidavit evidence from the lawyer named in the

Policy Analyst’s affidavit, who confirms that they provided a legal opinion by

email to the Policy Analyst on the relevant date.⁶⁰

⁵⁵Page 1096 of part 3 of the records in dispute; duplicated at page 358 of part 4.

⁵⁶Order F21-63, 2021 BCIPC 72 at para 40.

⁵⁷Ibid; Order F19-07, 2019 BCIPC 9 at paras 18-21.

⁵⁸The information in this paragraph is from the Affidavit of the Policy Analyst, paras 4 - 8.

⁵⁹Via email on a specific date.

⁶⁰Affidavit of AW at para 5.

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[67] I am satisfied that, if disclosed, the information in this email would reveal

confidential communications between a lawyer and client. More specifically, I am

satisfied that the information at issue expresses an intention to seek legal advice

from LSB on matters relating to delegation under the Heritage Conservation Act

and that LSB did actually provide that advice in confidence.

[68] In summary, I find that all of the information the Ministry withheld under

s. 14 is subject to solicitor-client privilege.

Settlement Privilege

[69] The Ministry is withholding some information on the basis of settlement

privilege. Settlement privilege is a common law privilege that protects

communications made for the purpose of settling a dispute.

[70] Part 2 of FIPPA makes no mention of settlement privilege. However, the

BC Supreme Court found that since FIPPA contains no clear legislative intent to

abrogate it, parties are entitled to rely on settlement privilege to refuse to disclose

information responsive to an access request under FIPPA.⁶¹

[71] Settlement privilege is a class privilege and applies to communications

that meet the following three criteria:

1. A litigious dispute must be in existence or within contemplation;

2. The communication must be made with the express or implied intention

that it would not be disclosed to the court in the event negotiations failed;

and

3. The purpose of the communication must be to attempt to effect

a settlement.⁶²

[72] The Ministry did not provide the records or portions of records in dispute

under settlement privilege for my review. The Ministry asserted during the inquiry

process that I would decide settlement privilege without reviewing the records.⁶³

However, there is not a settled practice as there is when the Commissioner

decides whether records are subject to solicitor-client privilege under s. 14, as

I described above. I was unable to find a previous order of the Commissioner

where the Commissioner or their delegate addressed whether it is appropriate to

decide if settlement privilege applies in the absence of the records. Similarly,

⁶¹Richmond (City) v Campbell 2017 BCSC 331 at paras 71-73.

⁶²Nguyen v Dang 2017 BCSC 1409 at para 22; Order F21-11, 2021 BCIPC 15 at para 11; Order

F18-06, 2018 BCIPC 8 at para 60.

⁶³Via email dated October 21, 2021.

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I was unable to find a case from a Canadian court where this issue has been

discussed.

[73] The Commissioner has the power under s. 44(1) to order a person to

produce records under their custody or control for the purposes of conducting an

investigation, audit or inquiry. Section 44(3) states that, if the Commissioner

makes an order under s. 44(1), a public body must produce the record within 10

days despite “a privilege of the law of evidence”. Since settlement privilege is

“a privilege of the law of evidence”,⁶⁴read together, ss. 44(1) and (3) clearly

allow me to order production of a record to which settlement privilege may apply.

The issue is whether it is appropriate that I do so.

[74] In its initial submissions, the Ministry relied on the Supreme Court of

Canada’s decision in Alberta (Information and Privacy Commissioner) v

University of Calgary for the proposition that records do not need to be provided

to the Commissioner for the purpose of adjudicating a public body’s claim of

settlement privilege.⁶⁵However, that case was about whether an adjudicator

should order production of the records to decide claims of solicitor-client

privilege. The Ministry did not adequately explain how it would apply to decisions

about settlement privilege. For this reason, and given that whether records

should be produced for the purpose of deciding settlement privilege is a novel

issue, I wrote back to the parties for further submissions.

[75] The Ministry and the applicant both provided further submissions.

[76] The Ministry said that it is legally required to withhold the records from the

Commissioner because providing the records would waive the privilege.⁶⁶The

Ministry further submits that settlement privilege is held by both parties and

cannot be unilaterally waived by one party. In support of this argument, the

Ministry references Blood Tribe Department of Health v Canada (Privacy

Commissioner) [Blood Tribe] where the Supreme Court of Canada said that the

Privacy Commissioner of Canada was a “stranger” to solicitor-client privilege,

and that “compelled disclosure to an administrative officer, even if not disclosed

further, would constitute an infringement of the confidentiality.”⁶⁷The Ministry

submits that even though the Blood Tribe was about solicitor-client privilege,

rather than settlement privilege, the principles enunciated by the Court apply, and

argue that compelled disclosure to the Commissioner would violate the parties’

interest in a confidential settlement process.

⁶⁴Alberta (Information and Privacy Commissioner) v University of Calgary 2016 SCC 53 at

para 44 [University of Calgary].

⁶⁵Ibid.

⁶⁶The Ministry’s arguments on this issue are from the Ministry’s March 10, 2022 letter.

⁶⁷Ministry’s March 20, 2022 letter citing Blood Tribe Department of Health v Canada (Privacy

Commissioner) 2008 SCC 44 at para 21 [Blood Tribe].

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[77] The Ministry then says:

“Without the protection of settlement privilege, a party communicating

a proposal related to settlement, or responding to one, would have no

control over what the other side may do with such documents. An absence

of control creates a risk that settlement discussions would be disclosed

publicly. The risk of public disclosure discourages parties from entering into

good faith settlement discussions. Therefore, without the protection of

settlement privilege, the public interest in encouraging settlements will not

be served.

In effect, therefore, disclosure to the Commissioner would discourage

parties from entering into settlement negotiations with the Province. The

courts have widely accepted that settlement negotiations are in the public

interest and should be fostered rather than discouraged.”⁶⁸

[78] Finally, the Ministry submits that it has provided sufficient evidence for me

to decide whether the records in dispute are subject to settlement privilege. It

says that it has provided detailed affidavit evidence sufficient to establish that

settlement privilege applies to the records in dispute and notes that the applicant

has not challenged the credibility of the affiant or the Ministry’s submissions

about the application of settlement privilege.

[79] The applicant asks that the records not be excluded from my review.⁶⁹The

applicant says that he is not a lawyer and is not in a position to have an opinion

on the various legal precedents cited. However, the applicant says that, as

a matter of general principle, it seems the credibility of the entire Act (i.e. FIPPA)

hinges on confidence that the requested information be vetted by an impartial

adjudicator.

[80] For the reasons that follow, I have decided to order the Ministry to produce

the records for which it is claiming settlement privilege.

[81] First, I am not persuaded by the Ministry’s argument that disclosing the

records at issue would constitute a waiver of settlement privilege. As the Ministry

states, settlement privilege is held by both parties and cannot be unilaterally

waived by one party. Therefore, since there is no express or implied intention

from the other parties to waive the privilege, disclosure by the Ministry to the

Commissioner would not be considered a waiver of settlement privilege.⁷⁰

Further, where a party is compelled to disclose a record, that disclosure is not

voluntary and no waiver occurs.⁷¹

⁶⁸Citations omitted.

⁶⁹The applicant’s arguments are from the applicant’s March 17, 2022 reply.

⁷⁰See Order F21-11, 2021 BCIPC 15 at para 41 for a similar finding.

⁷¹Blank v Canada (Minister of Justice) 2005 FC 1551 at paras 41-42, rev’d in part on other

grounds 2007 FCA 87.

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[82] I am also not persuaded by the Ministry’s argument that the principles

expressed by the courts in regards to solicitor-client privilege extend to

settlement privilege. The privileges serve important, but fundamentally different

purposes.

[83] Solicitor-client privilege is of central importance to the legal system as

a whole. The privilege protects a broad range of communications between

a lawyer and their client.⁷²The Supreme Court of Canada in R v McClure said

“[a]t the heart of this privilege lies the concept that people must be able to speak

candidly with their lawyers and so enable their interests to be fully represented.”⁷³

Solicitor-client privilege is not “merely a rule of evidence”, it is also “an important

civil and legal right and a principle of fundamental justice in Canadian law.”⁷⁴In

other words, clients have a substantive right not to have confidential

communications with their lawyers disclosed.

[84] To ensure public confidence, the privilege must be “as close to absolute

as possible.”⁷⁵Solicitor-client privilege is “jealously guarded and should only be

set aside in the most unusual circumstances, such as a genuine risk of wrongful

conviction”.⁷⁶The privilege “will only yield in certain clearly defined circumstances

and does not involve a balancing of interests on a case-by-case basis.”⁷⁷In

addition, any legislative incursions on solicitor-client privilege must be strictly

construed.⁷⁸

[85] Due to the importance of solicitor-client privilege as a fundamental right,

the OIPC makes an exception to its usual practice of reviewing the records in

dispute. While s. 44(2.1) makes it clear that the solicitor-client privilege of

a record disclosed to the Commissioner is not affected by the disclosure, the

OIPC’s practice is to decide whether solicitor-client privilege applies without

reviewing the records unless it is necessary to do so in order to fairly decide.⁷⁹

This aligns with the practice of courts; the Supreme Court of Canada said that

“[e]ven courts will decline to review solicitor-client documents to adjudicate the

⁷²Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31 at para 21 [Pritchard].

⁷³R v McClure, 2014 SCC 14 at para. 2 [McClure].

⁷⁴University of Calgary supra note 64 at para 41 citing Lavallee, Rackel & Heintz v. Canada

(Attorney General) 2002 SCC 61 at para 49.

⁷⁵McClure supra note 73 at para. 35.

⁷⁶Pritchard supra note 72 at para 17.

⁷⁷McClure supra note 73 at para 35.

⁷⁸Blood Tribe, supra note 67 at para 11.

⁷⁹See Order F19-21, 2019 BCIPC 23 for an example of where the adjudicator decided whether it

was necessary to order production of records to decide whether those records were subject to

solicitor-client privilege. The BC Supreme Court stated a preference for resolving claims of

privilege via affidavit evidence in British Columbia (Minister of Finance) v British Columbia

(Information and Privacy Commissioner), 2021 BCSC 266 at para 85.

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existence of privilege unless evidence or argument establishes the necessity of

doing so to fairly decide the issue”.⁸⁰

[86] In contrast, settlement privilege is a rule of evidence rooted in the public

interest in promoting settlements. It recognizes that settlement discussions will

be more fruitful if parties have space to settle a dispute without worrying that

what they say will be later disclosed.⁸¹In this way, settlement privilege plays

a vital role in improving access to justice.⁸²

[87] Unlike solicitor-client privilege, settlement privilege is not as close to

absolute as possible. It can be set aside where “a competing public interest

outweighs the public interest in encouraging settlement.”⁸³For example, courts

set aside settlement privilege if it is necessary to prove the existence or scope of

the settlement.⁸⁴Also, unlike solicitor-client privilege, settlement privilege does

not confer a substantive right.

[88] Given the fundamentally different principles behind the two privileges and

their overall status in the legal system, I am not satisfied that the rationale for

excluding records from the Commissioner’s review where solicitor-client privilege

has been claimed extends to settlement privilege, as the Ministry argues.

[89] I also do not accept the Ministry’s assertion that review by the

Commissioner creates a risk of public disclosure that will make parties less

willing to settle.

[90] I am not sure what kind of public disclosure the Ministry sees as a risk, as

it does not explain. If the OIPC finds that an exception to disclosure does not

apply and orders a public body to disclose records, it is the public body who must

either comply with the order by providing access to the applicant or bring an

application for judicial review of the order.⁸⁵The OIPC does not itself disclose

records to an applicant as a result of an inquiry. Therefore, in the event that

a public body disagrees with the Commissioner’s decision regarding settlement

privilege, it can bring an application for judicial review before any record is ever

disclosed publicly. I am not satisfied that providing records to the Commissioner

for the purpose of adjudicating settlement privilege creates a risk of public

disclosure which will in turn make public bodies less willing to settle.

⁸⁰Blood Tribe supra note 67 at para 17, also quoted by Justice Cromwell in University of Calgary

supra note 64 (in dissent) at para 121.

⁸¹Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 at para 13 [Sable].

⁸²Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 at para 1 [Union Carbide].

⁸³Sable supra note 81 at para 19 quoting Dos Santos Estate v. Sun Life Assurance Co. of

Canada, 2005 BCCA 4 at para 20.

⁸⁴Union Carbide supra note 82 at para 35.

⁸⁵See s. 59 of FIPPA.

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[91] The Ministry has also argued that I do not need the records in order to

decide whether settlement privilege applies.

[92] I do not think it is appropriate that I decide settlement privilege in the

absence of the records. I cannot conduct a detailed analysis without reviewing

the information in dispute. Deciding settlement privilege is not like solicitor-client

privilege, where courts have cautioned against severing due to the risk of

revealing privileged information.⁸⁶In this particular case, the Ministry has applied

settlement privilege to several different kinds of information, including the

“interests, expectations and concerns” of third parties.⁸⁷In my opinion, it would

be difficult to conduct a detailed analysis of whether settlement privilege applied

to all of this information without being able to review it.

[93] In addition, I am persuaded by the applicant’s comments regarding the

value of having the adjudicator review the information in dispute. Due to the very

nature of an inquiry, an applicant is constrained in making their case because

they cannot see the information at issue.⁸⁸It also underscores how vital it is for

the public to have confidence in the adjudicator’s ability to neutrally and

impartially decide any questions of fact and law. The applicant expressly says

that he feels that the credibility of the inquiry process depends on the ability of

the adjudicator to review the records in dispute. I agree and find that an

independent review of the records is important to building and keeping public

confidence in the inquiry process and that deciding an inquiry in the absence of

the records should be the exception not the rule.

[94] Based on the differences I have outlined above, I do not think that

decisions regarding settlement privilege warrant the kind of exception that is

made for solicitor-client privilege. Therefore, I have decided to order the Ministry

to produce to me, as the commissioner’s delegate, the records containing the

information it asserts is excepted from disclosure under settlement privilege.

[95] The Ministry applied s. 12(1) and s. 22(1) to some information to which it

also applied settlement privilege. Since I cannot review this information, I cannot

decide whether these sections apply to that specific information. I have decided

s. 12(1) and s. 22(1) only in relation to the information in the records provided to

me.

⁸⁶British Columbia (Attorney General) v Lee 2017 BCCA 219 at para 39 citing Camp

Development Corp. v. South Coast Greater Vancouver Transportation Authority, 2011 BCSC 88

and para 40.

⁸⁷Ministry’s initial submissions at para 155.

⁸⁸Regarding part 2 of FIPPA, this statement does not apply to decisions regarding s. 43, or

issues under part 1.

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Section 12(1) – cabinet confidences

[96] Section 12(1) of FIPPA requires a public body to refuse to disclose

information that would reveal the substance of deliberations of the Executive

Council (also known as Cabinet) or any of its committees, including any advice,

recommendations, policy considerations or draft legislation or regulations

submitted or prepared for submission to the Executive Council or any of its

committees. However, s. 12(1) does not apply in the circumstances set out in

s. 12(2).

[97] The purpose of s. 12(1) is to widely protect the confidence of Cabinet

communications.⁸⁹Explaining the rationale for protecting cabinet confidences,

the Supreme Court of Canada has said that “[t]hose charged with the heavy

responsibility of making government decisions must be free to discuss all aspects

of the problems that come before them and to express all manner of views,

without fear that what they read, say or act on will later be subject to public

scrutiny”.⁹⁰

[98] The Ministry has applied s. 12(1) to information in the following

documents:

 copies of documents titled “Cabinet Submission – Request for Decision”’

and related drafts, emails, attachments and speaking notes;⁹¹

 Various decision, information and transition notes, and related speaking

notes;⁹²

 Versions of a McAbee heritage site implementation plan;⁹³

 A document called “Fossil Management – Information for ELUC”;⁹⁴and

one called “Fossil Management Framework – NR sector”.⁹⁵

 Iterations of a timeline attached to an independent contractor agreement

(timeline);⁹⁶

 Versions of a policy review document about devolution of provincially

owned heritage properties;⁹⁷

⁸⁹Aquasource Ltd. v. British Columbia (Freedom of Information and Protection of Privacy

Commissioner) 1998 6444 (BC CA) [Aquasource] at para 41.

⁹⁰Babcock v Canada (Attorney General), 2002 SCC 57 at para 18.

⁹¹Pages 1630-1635 of part 1; pages 337, 342 -347, 350-356, 358-363, 407, 410-415 of part 2;

pages 435-447, 561-575, 580-595, 599-615, 618-633 of part 4 of the records in dispute.

⁹²Pages 169, 173-183, 1765 part 1; pages 180-181, 965, 975 part 2; pages 1183-1184 part 3;

pages 419, 424 part 4 of the records in dispute.

⁹³Pages 160, 164, 168, part 1, 633, 636, 637, 640, 641, part 6 of the records in dispute.

⁹⁴Page 740, part 1; pages 176, part 2. The title is revealed in affidavit #1 of the Stewardship

Officer at para 18(c).

⁹⁵Pages 490-493, part 2 of the records in dispute.

⁹⁶Page 1756, 1761 part 1 of the records in dispute.

⁹⁷Page 1904, part 1 of the records; duplicated at 1243, part 2 of the records; draft at page 1286

and pages 1315-1322 (withheld entirely) of part 2.

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 A document about First Nations Consultation in relation to McAbee

(record of consultation);⁹⁸and

 Parts of several emails.⁹⁹

[99] I will first decide if the requirements of s. 12(1) are met before turning to

whether any circumstances in s. 12(2) apply.

Section 12(1) – Committee of the Executive Council

[100] The Ministry submits that the information it withheld under s. 12(1) would

reveal the substance of deliberations of Cabinet and two of its committees:

Treasury Board and the Environment and Land Use Committee (together, the

Committees).¹⁰⁰

[101] As s. 12(1) only applies to the Executive Council or any of its committees,

I must first determine whether the Treasury Board and the Environment and Land

Use Committee are committees of the Executive Council for the purposes of

s. 12(1).

[102] Under s. 12(5), the Lieutenant Governor in Council may designate

a committee for the purposes of s. 12. The Ministry says that the Committees are

both designated under the Committees of the Executive Council Regulation

(Regulation).¹⁰¹

[103] I conclude that Treasury Board and the Environment and Land Use

Committee are both designated as committees for the purpose of s. 12 under the

Regulation.¹⁰²I also note that many responsive records pre-date the version of

the Regulation in force at the time of the applicant’s access requests. Since the

relevant date is the date the records were created,¹⁰³I confirm that the past

version of the Regulation also designated both Committees for the purpose of

s. 12.¹⁰⁴

Section 12(1) – substance of deliberations

[104] The next step in the s. 12(1) analysis is to decide whether the information

in dispute would reveal the substance of deliberations of Cabinet or the

Committees.

⁹⁸Page 565 part 1 of the records in dispute.

⁹⁹Page 487 part 2; pages 422, 559, 578, 597, 616 part 4 of the records in dispute.

¹⁰⁰Ministry’s initial submissions, para 72.

¹⁰¹BC Reg. 156/2017.

¹⁰²The Committees of the Executive Council Regulation 156/2017 has been repealed and

replaced with Reg. 150/2021.

¹⁰³British Columbia (Attorney General) v. British Columbia (Information and Privacy

Commissioner), 2011 BCIPC 112 () at paras 90- 92.

¹⁰⁴BC Reg. 229/2005.

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[105] In the context of s. 12(1), the phrase “substance of deliberations” refers to

the body of information that the Cabinet or any of its committees considered (or

would consider in the case of submissions not yet presented) in making

a decision.¹⁰⁵The BC Court of Appeal articulated this test as asking the question:

“Does the information sought to be disclosed form the basis for Cabinet

deliberations?”¹⁰⁶In addition, s. 12(1) applies to information which would permit

an accurate inference to be drawn about the “substance of deliberations.”

[106] The Ministry submits that the information in dispute under s. 12(1) was

part of the body of information considered by the Committees and that its

disclosure would reveal the substance of deliberations of the Committees either

directly or by inference.¹⁰⁷

[107] More specifically, the Ministry says that it appeared before the

Environment and Land Use Committee several different times relating to

McAbee. It says that, in 2011, it presented to this committee and, as a result, was

given Cabinet direction to protect McAbee through a Heritage Conservation Act

designation, to prepare a management plan for the site, and to prepare

a submission for Treasury Board.¹⁰⁸Further, the Ministry says it appeared before

the Environment and Land Use Committee in 2012 asking Cabinet to designate

McAbee as an official heritage site and again in 2017 on matters relating to fossil

management.¹⁰⁹The Ministry provided evidence from the Records Management

Officer for Cabinet Operations in the Office of the Premier (Records Management

Officer) who confirms that Cabinet and the Environment and Land Use

Committee met on these two dates, respectively.¹¹⁰

[108] I have reviewed the information in dispute under s. 12(1) and find that

most of it would reveal the “substance of deliberations” of Cabinet, the

Environment and Land Use Committee or Treasury Board.

[109] First, I am satisfied that some of the withheld information would reveal

information that formed the basis for the Environment and Land Use Committee’s

deliberations about fossil management. The Records Management Officer says

that they believe a final copy of the “Request for Decision”¹¹¹was distributed to

the Environment and Land Use Committee and that Cabinet approved the related

request.¹¹²In addition, the Stewardship Officer says that the document titled

¹⁰⁵Aquasource, supra note 89 at para 39.

¹⁰⁶Ibid at para 49.

¹⁰⁷Ministry’s initial submissions, para 77.

¹⁰⁸Ministry’s initial submissions, para 73. The Ministry provided additional details, but these were

accepted in camera and so I cannot discuss them.

¹⁰⁹Ministry’s initial submissions, paras 74-75.

¹¹⁰Based on the Records Management Officer’s review of Cabinet Operations’ records.

¹¹¹Located at pages 1630-1635 of part 1 of the records in dispute.

¹¹²Affidavit of the Records Management Officer at para 15.

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“Fossil Management – Information for ELUC” was prepared for the Ministry’s

meeting with the Environment and Land Use Committee.¹¹³Based on this

evidence and the contents of the records, I am satisfied that the “Requests for

Decision” and the related materials, as well as the document called “Fossil

Management – Information for ELUC”, were prepared for Cabinet and/or the

Environment and Land Use Committee about matters relating to fossil

management. In addition, I can see that other information, such as emails¹¹⁴,

decision notes,¹¹⁵transition notes,¹¹⁶and information notes¹¹⁷, refers directly to

information considered by the Environment and Land Use Committee. Therefore,

I am satisfied that this information would reveal the substance of deliberations.

[110] In addition, I am satisfied that other information in dispute would reveal the

substance of deliberations of Cabinet or its committees relating to other matters

such as the designation of McAbee as a heritage site. For example, the withheld

information in the site implementation plan, the record of consultation, the

timeline, some decision notes,¹¹⁸information notes¹¹⁹and some emails refer

directly to information considered by Cabinet or its committees, including

Treasury Board. Therefore, I find that disclosure of this information would reveal

the substance of deliberations of Cabinet or its committees.

[111] However, I find that s. 12(1) does not apply to parts of a version of a policy

review document about devolution of provincially owned heritage properties.¹²⁰

The Ministry withheld the entire version of this document, but I find that only two

paragraphs would reveal the substance of deliberations of Cabinet or its

committees.¹²¹The Ministry did not explain, and it is not evident to me that the

remainder of the document would reveal the substance of deliberations of

Cabinet or its committees.

Section 12(2)

[112] Having found that some information would reveal the substance of

deliberations of Cabinet or its committees, I must consider whether any of the

circumstances in s. 12(2) apply. If information is of the type described in s. 12(2),

it cannot be withheld under s. 12(1).

¹¹³Affidavit #1 of the Stewardship Officer, para 18(c).

¹¹⁴Page 487 of part 2 of the records in dispute, for example.

¹¹⁵Pages 419 and 424 of part 4 of the records in dispute.

¹¹⁶Page 965 and 975 part 2 of the records in dispute.

¹¹⁷Page 180-181, part 2 of the records in dispute, for example.

¹¹⁸Page 169, part 1; 1183-1184, part 3 of the records in dispute, for example.

¹¹⁹Pages 173-183 and 1765 of part 1 of the records in dispute.

¹²⁰Pages 1315-1322 of part 2 of the records in dispute.

¹²¹The Ministry withheld the same two paragraphs in other versions of this document and

I confirm that this information would reveal the substance of deliberations of Cabinet or its

committees in all versions.

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[113] Section 12(2) states that subsection (1) does not apply to:

(a) information in a record that has been in existence for 15 or more years,

(b) information in a record of a decision made by the Executive Council or

any of its committees on an appeal under an Act, or

(c) information in a record the purpose of which is to present background

explanations or analysis to the Executive Council or any of its committees

for its consideration in making a decision if

(i) the decision has been made public,

(ii) the decision has been implemented, or

(iii) 5 or more years have passed since the decision was made or

considered

[114] I find that s. 12(2)(a) does not apply. None of the records at issue under

s. 12(1) are more than 15 years old.

[115] The Ministry asserts that s. 12(2)(b) does not apply and nothing before me

indicates that it would.

[116] Under s. 12(2)(c) background explanations or analysis cannot be withheld

under s. 12(1). “Background explanations” include everything factual that Cabinet

used to make a decision, and “analysis” includes discussion about the

background explanations but not analysis of policy options presented to

Cabinet.¹²²Section 12(2)(c) does not apply to background explanations or

analysis interwoven with the substance of deliberations.¹²³

[117] With regards to s. 12(2)(c), the Ministry says that it has applied s. 12(1) as

narrowly as it can and, in many instances, has released considerable information

about the s. 12(1) information in the records.¹²⁴

[118] In my opinion, none of the information in dispute is background

explanations or analysis.

[119] In conclusion, s. 12(1) applies to all of the information to which the Ministry

applied that section with the exception of the information discussed in paragraph

111 above.

¹²²Order No. 48-1995, BCIPD No. 21 at para 13. This approach was confirmed by the BC Court

of Appeal in Aquasource supra note 89.

¹²³Aquasource supra note 89 at para 50.

¹²⁴Ministry’s initial submissions, para 81.

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Section 13

[120] Section 13 (1) allows a public body to refuse to disclose to an applicant

information that would reveal advice or recommendations developed by or for

a public body or a minister.

[121] The purpose of s. 13(1) is to prevent the harm that would occur if a public

body’s deliberative process was exposed to public scrutiny.¹²⁵

[122] The term “advice” is broader than “recommendations”¹²⁶and includes an

opinion that involves exercising judgment and skill to weigh the significance of

matters of fact.¹²⁷“Recommendations” include material relating to a suggested

course of action that will ultimately be accepted or rejected by the person being

advised.¹²⁸Section 13(1) also encompasses information that would allow an

individual to make accurate inferences about any advice or recommendations.¹²⁹

[123] The first step is to determine whether the information is advice or

recommendations under s. 13(1). If it is, I must decide whether the information

falls into any of the categories in s. 13(2) or whether it has been in existence for

more than 10 years under s. 13(3). If ss. 13(2) or 13(3) apply to any of the

information, that information cannot be withheld under s. 13(1).

[124] The Ministry has applied s. 13(1) to a small amount of information in the

records. It says that the information constitutes Ministry employees using their

professional expertise to determine the significance of matters.¹³⁰The Ministry

also says that it is clear from the records that any proposed course of action can

be accepted or rejected.¹³¹Further, the Ministry submits that some of the

information would indirectly disclose advice or recommendations because an

accurate inference could be drawn.¹³²

[125] First, it has applied s. 13(1) to some information in two versions of an

Information Note.¹³³The withheld information is about a policy option developed

for the Minister, some of which is about a recommended course of action. This

information is clearly advice or recommendations within the meaning of s.13(1).

¹²⁵Insurance Corporation of British Columbia v. Automotive Retailers Association 2013 BCSC

2025 [ICBC] at para 52.

¹²⁶John Doe v Ontario (Finance) 2014 SCC 36 [John Doe] at para 24.

¹²⁷College of Physicians of B.C. v. British Columbia (Information and Privacy Commissioner),

2002 BCCA 665 at para 113.

¹²⁸John Doe supra note 126 at para 23.

¹²⁹Order F19-28, 2019 BCIPC 30 at para 14.

¹³⁰Ministry’s initial submissions, para 95.

¹³¹Ministry’s initial submissions, para 96.

¹³²Ministry’s initial submissions, para 97.

¹³³Pages 1824-1825, part 1; 2180 part 2.

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[126] The Ministry has also applied s. 13(1) to comments in several documents,

including a draft Issues Note.¹³⁴The comments are editorial in nature and give

suggestions on the content of the documents. I find that these comments were

made using the opinion-giver’s expertise. For these reasons, I conclude that they

are advice within the meaning of s. 13(1).¹³⁵My finding is consistent with past

orders which have concluded that editorial commentary constitutes advice or

recommendations within the meaning of s. 13(1).¹³⁶

[127] Lastly, the Ministry has applied s. 13(1) to two partial sentences in the

body of the Issues Note.¹³⁷It is evident from the disclosed information that these

partial sentences are the subject of the advice given in the comments discussed

in the preceding paragraph. I gather that this is the information that the Ministry

says would allow an accurate inference to be made about the advice or

recommendations.

[128] While the Ministry has not explained, I am satisfied that disclosure of the

partial sentences would allow an accurate inference to be made about the advice

given. In making this finding, I have considered that the applicant has extensive

knowledge about matters relating to McAbee. Therefore, I am satisfied that this

information is subject to s. 13(1).

[129] In summary, I find that all of the information that the Ministry withheld

under s. 13(1) would reveal advice or recommendations.

Sections 13(2) and (3)

[130] Having found that the information in dispute is advice or recommendations

within the meaning of s. 13(1), I must also consider whether any of the provisions

in ss. 13(2) or (3) apply. If any of these circumstances apply, the information

cannot be withheld.

[131] Section 13(2) sets out types of records and information that cannot be

withheld under s. 13(1). The information at issue does not fall into any of these

categories.

[132] None of the records are more than 10 years old, and therefore s. 13(3)

does not apply.

¹³⁴Pages 358-360, 1286, 1291 of part 2; Issues Note at pages 601-602 in part 3 of the records in

dispute.

¹³⁵Some of the information to which I found s. 12(1) did not apply on pages 1315-1322 of part 2

of the records is identical to some of the comments that I have found are advice or

recommendations under s. 13(1). Therefore, in order to give effect to my finding that s. 13(1)

applies, I also authorize the Ministry to withhold these identical comments where they appear on

pages 1315-1322 in part 2.

¹³⁶Order F19-27, 1029 BCIPC 29 at para 37, for example.

¹³⁷Pages 601-602, part 3 of the records in dispute.

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[133] In summary, I find that s. 13(1) applies to all of the information to which

the Ministry applied this exception.

Section 16

[134] Section 16 allows a public body to withhold information where disclosure

could reasonably be expected to harm intergovernmental relations or

negotiations. The Ministry made submissions on s. 16(1)(a)(iii) and s. 16(1)(c)

but did not specify which of these exceptions applies to which information in

dispute. The Ministry applied “s. 16” to the following information:

 several parts of a record of consultation;¹³⁸

 a small portion of a set of handwritten notes;¹³⁹and

 part of an email.¹⁴⁰

Recent amendments

[135] Sections 16(1)(a)(iii) and 16(1)(c) and the related definitions in Schedule 1

of FIPPA were amended November 25, 2021.¹⁴¹Before the amendment, and at

the time the Ministry made its decision on the applicant’s access request, those

sections read:

16 (1) The head of a public body may refuse to disclose information to an

applicant if the disclosure could reasonably be expected to

(a) harm the conduct by the government of British Columbia of

relations between that government and any of the following or

their agencies:

…

(iii) an aboriginal government;

…

(c) harm the conduct of negotiations relating to aboriginal self

government or treaties.

[136] The amendments replace the term “aboriginal government” with

“Indigenous governing entity” in s. 16(1)(a)(iii) and the word “aboriginal” with

“Indigenous” in s. 16(1)(c).

¹³⁸Pages 558-568, part 1 of the records in dispute.

¹³⁹Page 24, part 3 of the records in dispute.

¹⁴⁰Page 1258, part 2 of the records in dispute.

¹⁴¹By the Freedom of Information and Protection of Privacy Amendment Act, SBC 2021 c 39

s 8(a) and 8(b).

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[137] Before the amendments, Schedule 1 of FIPPA said that "aboriginal

government" “means an aboriginal organization exercising governmental

functions”. The recent amendments removed that definition and substituted the

following definition:

"Indigenous governing entity" means an Indigenous entity that exercises

governmental functions, and includes but is not limited to an Indigenous

governing body as defined in the Declaration on the Rights of Indigenous

Peoples Act;¹⁴²

[138] As detailed below, I have decided s. 16(1)(a)(iii) and s. 16(1)(c) in relation

to the language before it was amended as that was what was in effect at the time

the Ministry made its decision. However, my analysis applies equally to the

amended provisions.

[139] I will first decide whether s. 16(1)(a)(iii) applies, and if necessary, go on to

decide s. 16(1)(c).

Section 16(1)(a)(iii)

[140] Section 16(1)(a)(iii) has two parts and the Ministry must prove both. The

first issue is whether the information at issue relates to an “aboriginal

government”. Second, I must decide whether disclosure of the information in

dispute could reasonably be expected to harm the conduct of relations between

the government and the “aboriginal governments.”

“Aboriginal government”

[141] As I mentioned above, before it was amended, Schedule 1 of FIPPA

defined “aboriginal government” in the following way:

"aboriginal government" means an aboriginal organization exercising

governmental functions;

[142] Previous orders have found that an “aboriginal government” includes, at

the very least, a “band” under the federal Indian Act¹⁴³but is not limited to bands

or groups that have concluded self-government agreements or treaties.¹⁴⁴

[143] The Ministry submits that the various groups referred to in the records are

“aboriginal governments” for the purpose of s. 16(1)(a)(iii).

¹⁴²Ibid, s. 47(a).

¹⁴³Indian Act RSC 1985 c. 1-5.

¹⁴⁴Order 01-14, 2001 21567 (BCIPC) at para 14; Order F20-48, 2020 BCIPC 57 at

para 190; Order F21-45, 2021 BCIPC 53 at para 74.

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[144] The Ministry explains that, in keeping with the commitment to Indigenous

peoples’ right to self-determination, the Province has recognized a number of

different Indigenous groups as exercising governmental functions.¹⁴⁵The Ministry

says that, where an Indigenous group has recognized an entity as having the

authority to represent them and negotiate on their behalf, the Province has

followed suit and recognized that entity as an “aboriginal government” for the

purpose of FIPPA.¹⁴⁶The Ministry says that when deciding whether or not an

entity is an “aboriginal government”, the focus should be on whether the

organization has the ability to negotiate on behalf of the rights holders.¹⁴⁷

[145] Therefore, the Ministry says that, at minimum, where there is evidence

that an Indigenous group has provided the Province with notice that a particular

representative body has the authority to negotiate on their behalf, that entity

should be considered an “aboriginal government” under FIPPA.¹⁴⁸The Ministry

says that the OIPC accepted this approach in Order F20-48.¹⁴⁹

[146] The portions of the record of consultation and the email that the Ministry

withheld under s. 16 clearly relate to specific Indigenous groups. Moreover, the

records indicate that those Indigenous groups are clearly exercising

a representative function. I accept that these groups are “aboriginal

governments” for the purpose of s. 16(1)(a)(iii).

[147] However, the Ministry did not adequately explain and is not clear to me

how the withheld information in the handwritten notes relates at all to an

“aboriginal government” within the meaning of s. 16(1)(a)(iii).¹⁵⁰The notes do not

appear to be related to any Indigenous group. As a result, I find that the Ministry

has not met its burden of proving that this information relates to an “aboriginal

government” as defined in FIPPA and therefore that s. 16(1)(a)(iii) does not

apply.

Harm

[148] Section 16(1)(a)(iii) applies if disclosure could reasonably be expected to

harm the conduct of relations between the province and an “aboriginal

government”.

[149] It is well established that the phrase “could reasonably be expected to”

means that the standard of proof is a “reasonable expectation of probable harm.”

This means that a public body must show that the likelihood of the harm

¹⁴⁵Ministry’s initial submissions, paras 167 and 169.

¹⁴⁶Ministry’s initial submissions, para 169.

¹⁴⁷Ministry’s initial submissions, para 166.

¹⁴⁸Ministry’s initial submissions, para 170.

¹⁴⁹Ministry’s initial submissions, para 171 citing Order F20-48, 2020 BCIPC 57.

¹⁵⁰I note that the Stewardship Officer’s evidence does not address this record.

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occurring is “well beyond” or “considerably above” a mere possibility.¹⁵¹The

amount and quality of the evidence required to meet this standard depends on

the nature of the issue and the “inherent probabilities or improbabilities or the

seriousness of the allegations or consequences.”¹⁵²

[150] The Ministry explains that in this case, the information at issue in the

record of consultation relates to constitutionally required consultation with First

Nations about decisions it made about the future of McAbee.¹⁵³The Ministry’s

submissions indicate that it believes disclosure of the information in this record

could reasonably be expected to harm the conduct of its relations with the

Indigenous groups referred to in the records.

[151] By way of background, the Ministry provided extensive submissions about

the history and the importance of the relationship between the Crown and

Indigenous peoples.¹⁵⁴The Ministry explains that “these sometimes fragile

relationships are the result of a history of mistrust, but are essential for the

Province to fulfil its obligations to Indigenous peoples.”¹⁵⁵The Ministry says that

in order to build trusting relationships, Indigenous groups must have confidence

in their communications with the Province and must not see any indicia of bad

faith.¹⁵⁶Further, the Ministry says that it needs to be able to develop and assess

its negotiating position without concerns that it will later be subject to public

scrutiny or that the information could be released and compromise its relationship

with an Indigenous group because there is a misinterpretation or

misunderstanding.¹⁵⁷

[152] Regarding the specific information in dispute, the Stewardship Officer says

that some of the information at issue in the record of consultation reflects the

Province’s opinion on “certain historical events” which do not include any

background details that explain how the Province reached those conclusions.

The Stewardship Officer says that this information, if disclosed, may be

incorrectly interpreted.¹⁵⁸

[153] The Stewardship Officer says that other information in the record of

consultation reflects confidential without prejudice discussions and negotiations

respecting, among other things, possible accommodation measures entered into

in good faith by the Province and First Nations. The Stewardship Officer explains

¹⁵¹Ontario (Community Safety and Correctional Services) v Ontario (Information and Privacy

Commissioner) 2014 SCC 31 at para 54 citing Merck Frosst v Canada (Health) 2012 SCC 3 at

paras 197 and 199.

¹⁵²Ibid citing FH v McDougall, 2008 SCC 53 at para 40.

¹⁵³Ministry’s initial submissions, para 193.

¹⁵⁴Ministry’s initial submissions, paras 179-192.

¹⁵⁵Ministry’s initial submissions, para 190.

¹⁵⁶Ministry’s initial submissions, para 188.

¹⁵⁷Ministry’s initial submissions, para 189.

¹⁵⁸Affidavit #1 of the Stewardship Officer at para 59.

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that disclosure of this information could harm the provincial government’s

relationship with the Indigenous group with whom it was negotiating by breaching

the trust and confidence necessary to engage in meaningful and successful

negotiations.¹⁵⁹

[154] I find that most of the information withheld under s. 16 directly relates to

the consultation and negotiation between the Province and the Indigenous

groups. For example, some of the information withheld under s. 16 reflects the

specific negotiating positions of the Province and the Indigenous groups. The

information describes the parties’ positions over time, and would reveal the “give

and take” between the parties during the negotiations. In Order F20-48, the

adjudicator found that disclosure of this kind of information would breach the trust

and confidence necessary to engage in meaningful and successful

negotiations.¹⁶⁰I make the same finding here.

[155] In addition, there is some information describing past events and I can

appreciate that these statements lack context. I accept that disclosing this

information could reasonably be expected to harm the conduct of relations with

the Indigenous groups referred to in the records.

[156] The remaining information in dispute under s. 16(1)(a)(iii) is a portion of an

email. The Ministry did not specifically address the harm that it asserts will result

from disclosure of this information. I can see that this contains an Indigenous

group’s opinion and is the type of information that the Indigenous group could

expect to be treated confidentially and/or disclosed in a more intentional way.

I find that s. 16(1)(a)(iii) applies to this information.

Section 16(1)(c)

[157] As I found above that s. 16(1)(a)(iii) did not apply to small portion of some

handwritten notes, I will consider whether s. 16(1)(c) applies.

[158] Section 16(1)(c) applies to information that, if disclosed, could reasonably

be expected to harm the conduct of negotiations relating to aboriginal self

government or treaties.

[159] The Ministry did not explain how the notes relate to aboriginal self

government or treaties and it is not apparent to me how they do. Therefore, I find

that s. 16(1)(c) does not apply. Consequently, the Ministry must disclose this

information to the applicant.

¹⁵⁹Affidavit #1 of the Stewardship Officer at para 60.

¹⁶⁰Order F20-48, 2020 BCIPC 57 at paras 208-212.

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Section 18(a)

[160] Section 18(a) allows a public body to refuse to disclose information to an

applicant if the disclosure could reasonably be expected to result in damage to,

or interfere with the conservation of fossil sites, natural sites or sites that have an

anthropological or heritage value.

[161] Section 18(a) has two parts and the public body must prove both. First the

sites at issues must be fossil sites, natural sites or sites that have an

anthropological or heritage value. Second, disclosure of the information in

dispute must be reasonably expected to result in damage to, or interfere with the

conservation of that site.

[162] The Ministry has applied s. 18(a) to various pieces of information relating

to McAbee such as maps¹⁶¹, photographs, location coordinates and

descriptions,¹⁶²and “Site Inventory Forms”.¹⁶³

Fossil sites, natural sites or sites that have an anthropological or heritage

value

[163] The first part of s. 18(a) identifies several kinds of sites, but proving that

the records relate to one kind of site is sufficient to satisfy the first part of s. 18(a).

[164] For the reasons that follow, I find that the sites at issue are either fossil

sites or sites that have anthropological value.

[165] The Ministry explains that the information at issue mainly relates to the

location of archeological sites that overlap with McAbee.¹⁶⁴The Ministry submits

that these sites have both anthropological value and heritage value as set out in

s. 6 of the Freedom of Information and Protection of Privacy Regulation (FIPPA

Regulation).¹⁶⁵Section 6 of the FIPPA Regulation was also amended on

November 25, 2021. Before it was amended, s. 6 said:

For the purposes of section 18 of the Act,

(a) a site has anthropological value if it contains an artifact or other

physical evidence of past habitation or use that has research

value, and

¹⁶¹Pages 783, 824, 825, 876 part 2; 992-995, 1014-1017 part 3; 991, 992, 1070, 1071 part 5;

581-582 part 6 of the records in dispute.

¹⁶²Pages 783-787, 791, 792, 794-799, 810, 826, 845, part 2; 992-995, 1014-1017 part 3; 159

Part 4; 964, 991, 992, 1015, 1042-1043, 1070, 1071 part 5; 581-582 part 6 of the records in

dispute.

¹⁶³Pages 965-989, 1045-1069, part 5 of the records in dispute.

¹⁶⁴Ministry’s initial submissions, para 202.

¹⁶⁵Ministry’s initial submissions, para 204.

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(b) a site has heritage value if it is the location of a traditional

societal practice for a living community or it has historical,

cultural, aesthetic, educational, scientific or spiritual meaning or

value for the Province or for a community including an aboriginal

people.¹⁶⁶

[166] The Stewardship Officer says that the sites identified in the records have

anthropological value and contain artefacts and other physical evidence of past

habitation by First Nations and that this is evident from the records.¹⁶⁷The

Stewardship Officer says that these sites and artefacts have important research

value because the sites reflect one of the best opportunities to learn about the

traditional ways of life for the Indigenous peoples who used to live in what is now

known as the McAbee area.¹⁶⁸

[167] The Stewardship Officer says that the sites also have heritage value

because they are the location of traditional societal practices for living First

Nations communities.¹⁶⁹

[168] Based on the Ministry’s evidence, submissions and information in the

responsive records, I am satisfied that the archeological sites overlapping with

McAbee have anthropological value within the meaning of s. 18(a).

[169] In addition to what the Stewardship Officer says, which I accept, I find that

the records themselves clearly indicate that the archeological sites contain

physical evidence, including artefacts, of past habitation.¹⁷⁰For example,

disclosed information in the records describes various kinds of artefacts and

“cultural depressions believed to be housepits” located at one of the sites.¹⁷¹

[170] Anthropological value as defined in s. 6 of the FIPPA Regulation also

requires that the physical evidence of past habitation have research value.

“Research value” is not defined in FIPPA or the FIPPA Regulation. However, I do

not think it is necessary to delve into the precise meaning of “research value” in

the present circumstances. In my view, it is clear that the evidence of past

habitation has “research value” because the records themselves are about what

has been learned from the evidence of past habitation and what could be learned

from future study of it.¹⁷²

¹⁶⁶Section 6 of the Regulation was amended during the Inquiry by B.C. Reg. 297/2021, Sch. 3,

s. 2 by replacing the words “aboriginal people” with “Indigenous people.” As I ultimately do not

consider whether the sites at issue have heritage value, I do not need to decide which version of

the Regulation applies.

¹⁶⁷Affidavit #1 of the Stewardship Officer, para 64.

¹⁶⁸Affidavit #1 of the Stewardship Officer, para 64.

¹⁶⁹Affidavit #1 of the Stewardship Officer, para 65.

¹⁷⁰Pages 782-799, part 2 of the records in dispute, for example.

¹⁷¹Pages 784-786, part 2, of the records in dispute, for example.

¹⁷²As demonstrated by the disclosed information on page 784, part 2 of the records in dispute,

for example.

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[171] As a result, I am satisfied that the archeological sites have anthropological

value. Given this finding, I do not need to consider whether these sites also have

heritage value.

[172] However, it is unclear whether some of the information at issue actually

relates to these anthropological sites. While the Ministry did not argue it, I have

no trouble concluding that the remaining information is about fossil sites. For

example, some of the information is about the location of fossils.¹⁷³

[173] In conclusion, all the information at issue under s. 18(a) is either about

fossil sites or sites that have an anthropological value.

Harm

[174] The standard of proof is a reasonable expectation of probable harm, which

is the same standard I have described above in relation to s. 16(1)(a)(iii).

[175] Section 18(a) identifies two kinds of harm and either is sufficient for

s. 18(a) to apply. The question is whether disclosure of the information in dispute

could be reasonably expected to either:

 result in damage to a site; or

 interfere with the conservation of a site.

[176] In considering the type of evidence required to prove harm for the

purposes of s. 18(a), former Commissioner Loukidelis in Order 01-11 said that it

is not necessary to prove that any individual has a motive to “despoil” the site,

although evidence of such a motive may be useful.¹⁷⁴He further said that

evidence of an opportunity to harm or interfere with the site is relevant, but not

necessarily dispositive of the issue.¹⁷⁵In concluding that s. 18(a) applied, he also

acknowledged that, until the sites at issue were professionally excavated, their

“only effective protection lies in their locations not being publicly known.”¹⁷⁶

[177] The Stewardship Officer says that the information at issue is not publicly

available and that it is restricted and provided only to archaeologists, First

Nations, and governments only after they sign a data sharing agreement that

imposes conditions on further disclosure.¹⁷⁷The Stewardship Officer further says

that if this type of information were released publicly, there is a real and

¹⁷³Page 159, part 4, of the records in dispute, for example.

¹⁷⁴Order 01-11, 2001 21565 (BCIPC) at para 31.

¹⁷⁵Ibid.

¹⁷⁶Ibid at para 44.

¹⁷⁷Affidavit #1 of the Stewardship Officer at para 66.

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substantial risk that individuals would seek out and disturb these archaeological

sites.¹⁷⁸

[178] I find support for the Stewardship Officer’s evidence in the records

themselves. For example, the disclosed information in the records indicates that

a burial site was damaged by “amateur” archeologists.¹⁷⁹

[179] Regarding the fossil sites, disclosed information in the records indicates

that McAbee is vulnerable to illegal fossil collection and damage due to its

international reputation and ease of access from Highway 1/97.¹⁸⁰In addition, the

records contain correspondence from the public expressing an interest in

collecting fossils.¹⁸¹

[180] Considering all of the above, I am satisfied that disclosure of maps,

coordinates and site descriptions could reasonably be expected to result in

damage to the fossil sites and sites that have anthropological value because they

show where the sites are. However, the Ministry has withheld information on the

Site Inventory Forms, such as the template language and headings, and general

descriptions that would not reveal the location of the sites at issue. I find that the

Ministry can only withhold information on the forms that would reveal the location

of the sites, such as specific descriptions and coordinates.¹⁸²

Section 22 – unreasonable invasion of a third party’s privacy

[181] The Ministry has withheld a significant amount of information under s. 22.

Section 22 requires a public body to refuse to disclose personal information if the

disclosure would be an unreasonable invasion of a third party’s personal privacy.

Personal Information

[182] Since s. 22(1) only applies to personal information, the first step in the

s. 22 analysis is to determine whether the information in dispute is personal

information.

[183] Schedule 1 of FIPPA provides the following definitions of “personal

information” and “contact information”:

"personal information" means recorded information about an identifiable

individual other than contact information;

¹⁷⁸Affidavit #1 of the Stewardship Officer at para 67.

¹⁷⁹Page 787, part 2 of the records in dispute.

¹⁸⁰Disclosed at pages 1183-1184, part 3 in the records in dispute.

¹⁸¹Page 731, part 4, of the records in dispute for example.

¹⁸²There are two sets of Site Inventory Forms. I have highlighted one set of the Site Inventory

forms and the Ministry must sever both sets in accordance with my highlighting.

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"contact information" means information to enable an individual at

a place of business to be contacted and includes the name, position name

or title, business telephone number, business address, business email or

business fax number of the individual;

[184] Under the above definitions, information that is “contact information” is not

“personal information” for the purpose of FIPPA. Whether information is “contact

information” depends on the context in which it appears.¹⁸³

[185] The Ministry submits that the information in dispute under s. 22 is personal

information of various third parties.¹⁸⁴It says that the information in dispute

relates to third parties’ medical and employment histories. The Ministry says that

some of the information is personal phone numbers and email addresses but is

not contact information.

[186] In my opinion, the vast majority of the information in dispute under s. 22(1)

is personal information because it is information about an identifiable individual.

[187] However, I find that some information in dispute under s. 22(1) is not

personal information. For example, an email address of an individual in

a commercial contract¹⁸⁵is clearly for the purpose of contacting the individual at

a place of business and so it is “contact information.” In addition, some of the

information is not personal information because it is not about an identifiable

individual. This includes the street address of a corporation.¹⁸⁶In addition,

information about groups of people is not about an identifiable individual.¹⁸⁷

[188] Since s. 22(1) only applies to personal information, the Ministry cannot

withhold the information that I have concluded is not personal information.

Section 22(4) – not an unreasonable invasion

[189] The next step in the analysis is to determine if any of the circumstances in

s. 22(4) apply to any of the personal information in dispute. If s. 22(4) applies,

disclosure of personal information is not an unreasonable invasion of a third

party’s personal privacy and the information must be disclosed.

[190] The Ministry submits that none of the circumstances in s. 22(4) apply.

[191] In my view, s. 22(4)(e) applies to one piece of personal information in the

records. Section 22(4)(e) says that information about a third party’s position,

¹⁸³Order F20-13, 2020 BCIPC 15 at para 42.

¹⁸⁴Ministry’s initial submissions, para 223.

¹⁸⁵Page 721, part 1 of the records in dispute.

¹⁸⁶Page 163, part 2 of the records in dispute.

¹⁸⁷Page 1822, part 2; and page 833, part 4 of the records in dispute.

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functions or remuneration as an employee of a public body is not an

unreasonable invasion of that third party’s personal privacy.

[192] I find that information in the records about the Stewardship Officer’s job

classification is about the Stewardship Officer’s position as an employee of the

Ministry.¹⁸⁸Therefore, s. 22(4)(e) applies and the Ministry cannot withhold it.

[193] I find that none of the other information in dispute falls under any of the

circumstances in s. 22(4).

Section 22(3) – presumptions

[194] Section 22(3) lists circumstances where disclosure is presumed to be an

unreasonable invasion of a third party’s personal privacy. The next step in the

analysis is to consider whether any of the circumstances apply.

[195] The Ministry submits that disclosure of some of the information at issue is

presumed to be an unreasonable invasion of a third party’s personal privacy

under some of the circumstances set out in s. 22(3). In addition, I find that there

are other presumptions that are relevant based on my own review of the

information in dispute.

[196] I will consider each of these presumptions in turn.

Medical history – s. 22(3)(a)

[197] Under s. 22(3)(a) disclosure of personal information that relates to

a medical, psychiatric or psychological history, diagnosis, condition, treatment or

evaluation is presumed to be an unreasonable invasion of that third party’s

personal privacy.

[198] The Ministry submits that s. 22(3)(a) applies to information about

individuals’ medical history, medical appointments and other information related

to medical matters. The Stewardship Officer has identified this information in their

affidavit.¹⁸⁹

[199] I find that some of the personal information identified by the Stewardship

Officer falls into s. 22(3)(a) because it is about third parties’ medical conditions or

medical treatments.¹⁹⁰This includes specific details about ailments, medical

appointments, and specific treatments.

¹⁸⁸At page 412, part 4 of the records in dispute.

¹⁸⁹See Affidavit #1 of the Stewardship Officer at para 70(a).

¹⁹⁰For example, pages 349, 1374, 1531, 1597, 1598, part 2; 606, 774, 775, 780, part 3;

page 378, part 4; page 525, part 5 of the records in dispute.

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[200] I find that s. 22(3)(a) does not apply to the remaining information that the

Stewardship Officer identified under this presumption because it is not clear how

some information is even remotely related to anything medical, psychiatric or

psychological and the Ministry did not explain.¹⁹¹In addition, some of the

information that the Ministry says falls under s. 22(3)(a) is too general to fall

under s. 22(3)(a).¹⁹²For example, some of the information indicates that a third

party is generally not well. In my opinion, this kind of vague information does not

qualify as a third party’s medical, psychiatric or psychological history. I find that

s. 22(3)(a) does not apply to this type of information.

Employment history – s. 22(3)(d)

[201] Under s. 22(3)(d) disclosure of personal information that relates to

employment, occupational or educational history is presumed to be an

unreasonable invasion of that third party’s personal privacy.

[202] The Ministry submits that s. 22(3)(d) applies to numerous instances of

personal information in the records because it is the educational or employment

history of third parties.

[203] Some of the personal information is clearly educational and/or

employment history as past orders have defined those terms. For example, the

Ministry has withheld resumes,¹⁹³information describing a third party’s

employment or educational endeavours¹⁹⁴, information describing a third party’s

work performance,¹⁹⁵and employee identification numbers.¹⁹⁶I find that this

information all falls under s. 22(3)(d).

[204] The Ministry also submits that some information related to employees’

vacations is their employment history under s. 22(3)(d). I do not see how details

of where a person went or activities they engaged in on a trip has anything to do

with a third party’s employment history. As I have said in past orders, details of

a vacation, even from work, are not sufficiently connected to a third party’s

employment so as to constitute their employment history.¹⁹⁷In some instances, it

is not even clear that the personal details in the records at issue are about trips

taken using annual leave.¹⁹⁸

¹⁹¹Page 779, part 3 of the records in dispute.

¹⁹²For example, on pages 1116 and 1983, part 2 of the records in dispute.

¹⁹³Pages 366-367, part 2 of the records in dispute.

¹⁹⁴Page 709, part 2 of the records in dispute.

¹⁹⁵Page 426, part 3 of the records in dispute, for example.

¹⁹⁶Page 325, part 4 of the records in dispute, for example.

¹⁹⁷Order F20-20, 2020 BCIPC 23 at paras 129-131, for example.

¹⁹⁸Page 1170, part 2 of the records in dispute, for example.

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[205] However, where the information would disclose that a third party was

away from work at a specific time using a leave that they are entitled to (i.e. sick

leave, annual vacation), I find this is sufficiently connected to a third party’s work

so as to constitute their employment history and disclosure of this information is

presumed to be an unreasonable invasion of those employees’ privacy under

s. 22(3)(d).¹⁹⁹

Personal recommendations – s. 22(3)(g)

[206] Under s. 22(3)(g) disclosure of personal information that consists of

personal recommendations or evaluations, character references or personnel

evaluations about the third party is presumed to be an unreasonable invasion of

that third party’s personal privacy.

[207] The Ministry says that s. 22(3)(g) applies to the name and personal

contact information of references for named third parties.²⁰⁰In support of its

argument, the Ministry relies on several orders from the OIPC that found that

reference check information is covered by s. 22(3)(g).²⁰¹

[208] I find that s. 22(3)(g) does not apply to the name, phone number, and

email addresses of the references. It does not include any qualitative information

about what the references thought about the third parties named in the records.

The orders the Ministry points to clearly included the references’ comments and

opinions²⁰²and therefore are distinguishable from the present case. As a result,

I find the information at issue does not constitute a personal recommendation,

evaluation, character reference or personnel evaluation within the meaning of

s. 22(3)(g).²⁰³

Ethnicity or religious beliefs – s. 22(3)(i)

[209] Under s. 22(3)(i) disclosure of personal information that indicates the third

party's racial or ethnic origin, sexual orientation or religious or political beliefs or

associations is presumed to be an unreasonable invasion of that third party’s

personal privacy.

¹⁹⁹Pages 1067, part 3 of the records in dispute, for example.

²⁰⁰Ministry’s initial submissions, para 238 and para 70(c) of affidavit #1 of the Stewardship

Officer. The information is on page 49, part 2 of the records in dispute.

²⁰¹Order F19-42, 2019 BCIPC 47 at para 26 citing Order 00-48.

²⁰²Order F19-42, 2019 BCIPC 47 at para 11.

²⁰³I made the same finding in Order F21-66, 2021 BCIPC 77 at paras 51-54.

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[210] The Ministry says that some of the information in dispute is information

about the ethnicity of a third party.²⁰⁴The Ministry did not explicitly raise

s. 22(3)(i) with regards to this information, but since this information clearly

describes the ethnicity of a third party, I find it applies.

[211] In addition, I find that a small amount of information in an email indicates

a third party’s religious beliefs.²⁰⁵I find that s. 22(3)(i) applies to this information.

Section 22(2) – relevant circumstances

[212] The next step in the analysis is to determine whether there are any

relevant circumstances. Section 22(2) says that when a public body decides

whether disclosure of personal information constitutes an unreasonable invasion

of a third party’s personal privacy, it must consider all relevant circumstances,

including those listed in s. 22(2). Some circumstances weigh in favour of

disclosure and some against. Relevant circumstances that weigh in favour of

disclosure may rebut any applicable presumptions under s. 22(3).

Information about a deceased person – s. 22(2)(i)

[213] The Ministry says that s. 22(2)(i) applies. This section reads:

(i)

the information is about a deceased person and, if so, whether the

length of time the person has been deceased indicates the

disclosure is not an unreasonable invasion of the deceased

person's personal privacy.

[214] In considering the length of time the person has been deceased, past

orders have indicated that disclosure is typically not an unreasonable invasion of

the deceased person’s privacy after the individual has been dead for about 20-30

years.²⁰⁶

[215] The Ministry says that some records at issue relate to individuals that died

in the last six to ten years.²⁰⁷The Ministry submits that these individuals’ right to

privacy has not significantly diminished over this period of time and therefore

disclosure remains an unreasonable invasion of their privacy. The Ministry says

that this circumstance weighs against disclosure.

²⁰⁴Affidavit #1 of the Stewardship Officer at para 70(k). Information at page 484, part 5 of the

records in dispute.

²⁰⁵Identifying the page number would reveal some of the personal information to which the

presumption applies, so I decline to do so.

²⁰⁶Order F18-08, 2018 BCIPC 10 at paras 31-32; Order F14-32, 2014 BCIPC 35 at paras 34-37.

²⁰⁷Ministry’s initial submissions, para 248.

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[216] Some of the personal information at issue is clearly about deceased

persons.²⁰⁸The length of time the individuals have been deceased is far less

than the 20-30-year timeframe set out in previous orders. I find that, in this case,

the length of time the individuals have been deceased favours withholding the

information in dispute.

Supplied in confidence – s. 22(2)(f)

[217] While the Ministry did not identify it as a relevant circumstance, the

records themselves indicate that some information was supplied in confidence.²⁰⁹

Therefore, I find that s. 22(2)(f) is a relevant circumstance weighing against

disclosure of that information.

Sensitivity

[218] The Ministry argues that some of the information, while not falling into

a presumption under s. 22(3) or an enumerated circumstance in s. 22(2) is

sensitive and that this is a factor weighing against disclosure. Many past orders

have considered the sensitivity of personal information. Where information is

sensitive, this is a factor that can favour withholding the information. Conversely,

where information is not sensitive, the non-sensitivity of the information can

favour disclosure.

[219] The Ministry says that some of the information is sensitive financial

personal information of third parties, such as banking information.²¹⁰

[220] The banking information identified by the Ministry is the name of a third

party’s financial institution. I do not find that this information on its own is

sensitive such that it weighs against disclosure.

[221] The Ministry also says that details of a person’s vacation are sensitive. In

support of this, the Ministry refers to Order F16-52, where the adjudicator said

that “details of a personal vacation should generally be considered sensitive in

nature, as this in information about what an individual does in their private time

away from work.”²¹¹

[222] In my opinion, the information about personal vacations is vague and I do

not agree that it is sensitive in the way that past orders have found. Further, the

adjudicator in Order F16-52 found that the sensitivity of the information was

reduced, in part because the information was three years old. In this case, all of

²⁰⁸For example, pages 812-814, part 3 of the records in dispute.

²⁰⁹Page 736, part 3 of the records in dispute.

²¹⁰Ministry’s initial submissions at para 242. Affidavit #1 of the Stewardship Officer at para. 70(i).

²¹¹Ministry’s initial submissions at para 236 citing Order F16-52, BCIPC 58 at para 88.

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the information is at least four years old. For these reasons, I find that sensitivity

is not a factor weighing in favour of withholding this information.

Applicants personal information / personal information likely to be

inaccurate or unreliable s. 22(2)(g)

[223] There is a small amount of information in dispute about the applicant.²¹²

The information in dispute is the name of a third party and a punctuation mark.

The remainder of the information on the page has been disclosed and appears to

be that third party’s opinion about the applicant.

[224] Many past orders have found that information about an applicant is

a circumstance weighing in favour of disclosure of that information to the

applicant.²¹³I make the same finding here. In this case, the punctuation mark

indicates that the note writer appears to be uncertain about the third party’s

identity. This leads me to conclude this personal information is also likely to be

inaccurate or unreliable, which is a circumstance enumerated in s. 22(2)(g). I find

that this circumstance weighs against disclosure of this information.

Conclusion s. 22

[225] I found that a small amount of information is contact information as

defined by FIPPA and therefore it cannot be withheld. In addition, I found that

some personal information must be disclosed because it falls under s. 22(4)(e).

[226] For the remaining personal information, some is subject to a presumption

under s. 22(3). In addition, some circumstances under s. 22(2) weigh in favour of

withholding the information in dispute. The only circumstance weighing in favour

of disclosure is with regards to a small amount of information about the applicant,

but this is outweighed by the fact that the information is likely inaccurate or

unreliable.

[227] As a result, I find that s. 22(1) applies to all of the personal information in

dispute.

CONCLUSION

[228] For the reasons given above, I make the following orders under s. 58 of

FIPPA:

1. I order the Ministry to perform its duty to conduct an adequate search by

searching for text messages and deleted emails in accordance with my

comments in paragraphs 36 and 37 above.

²¹²Page 115, part 3 of the records in dispute.

²¹³Order F22-10, 2022 BCIPC 10 at para 150, for example.

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2. I confirm the Ministry’s decision to refuse access to the information it

withheld under ss. 13(1) and 14 of FIPPA.

3. Subject to item 6 below, I confirm, in part, the Ministry’s decision to

withhold information under s. 16(1)(a)(iii) and s. 18(a).

4. I require the Ministry to give the applicant access to the information

I considered under s. 16(1)(c).

5. Subject to item 6 below, I require the Ministry to refuse to disclose parts of

the records in dispute under s. 12(1) and 22(1).

6. The Ministry is required to give the applicant access to the information

I have highlighted in the copy of the records provided to the public body

with this order. For the Site Inventory Forms, I have provided a highlighted

copy of one set of the forms but the Ministry must sever both sets in

accordance with my highlighting.

7. The public body must concurrently copy the OIPC registrar of inquiries on

its cover letter to the applicant, together with a copy of the records/pages

described at item 6 above.

[229] Pursuant to s. 59(1) of FIPPA, the public body is required to comply with

the orders by August 26, 2022.

In addition, under s. 44(1)(b), I require the Ministry to produce to me, through the

Registrar of Inquiries, the records or portions of the records it is withholding on

the basis of settlement privilege. Under s. 44(3), the Ministry must produce these

records by July 28, 2022.

July 14, 2022

ORIGINAL SIGNED BY

Erika Syrotuck, Adjudicator

OIPC File No.: F19-79973 & F19-81027