CANADA
By Terry McQuay, CIPP, CIPP/C

July 18, 2008 decision Canada (Privacy Commissioner) v. Blood Tribe Department of Health

While investigating an access request complaint (access denied), the assistant commissioner ordered the Blood Tribe Department of Health (Blood Tribe) to produce certain documents, for which it claimed solicitor-client privilege in order to determine whether there had been a breach of its access request obligations under the Personal Information Protection and Electronic Documents Act (PIPEDA).

Blood Tribe refused to produce the documents and sought judicial review of the production order from the federal court. In dismissing the application, the federal court's March 8, 2005 decision noted that:

• Parliament has given the commissioner the power to intervene in disputes between individuals and organizations,  the responsibility to determine the facts and to prepare a report on her findings;
• the commissioner cannot effectively perform her role if she is denied access to the information necessary to ascertain the facts merely on the assertion of a claim of privilege;
• there was not a substantial and unacceptable risk of broader disclosure as an assurance of confidentiality, supported by the scheme of PIPEDA, offered at the outset of the investigation;
• the production order issued by the commissioner will not limit or deny any solicitor-client privilege that the applicant may have in the documents;• the commissioner is given extraordinary powers to allow her to effectively conduct investigations and those powers can be exercised in the same manner and extent as a superior court of record which can compel production of documents to assess claims of privilege.

Blood Tribe appealed the federal court's decision to the Federal Court of Appeal. The appeal court, in its October 18, 2006 decision allowing the appeal and vacating the commissioner's order for production of records, noted that

• the substantive rules for solicitor-client privilege  include that it will protect a record regardless of the legal setting where the competing right arises and a law which expressly authorizes interference with the privilege is to be limited;
• express language is required to abrogate solicitor-client privilege and PIPEDA has no such express language;
• although the commissioner submits that she must be able to test claims of solicitor-client privilege, no facts are alleged to demonstrate why the privileged documents are in any way necessary to her investigation;
• the exercise of the commissioner's power to compel and examine solicitor-client privileged records was a violation of that privilege;
• the commissioner's power being exercisable in the same manner and extent as a superior court was not intended to empower the commissioner with the jurisdiction of a superior court;
• the commissioner's ability to conduct her investigation is not fettered by a rule that protects privileged communication.

The commissioner's appeal to the Supreme Court was dismissed with costs. The court, in its July 18, 2008 decision, determined that

• any legislative language that may allow incursions on solicitor-client privilege must be interpreted restrictively;
• solicitor-client privilege is fundamental to the proper functioning of the legal system;
• open—textured language governing production of documents will not be read to include solicitor—client documents;
• claims of privilege over documents containing personal information of others must be independently verified to give proper meaning to the fundamental right of access to one's personal information;
• there was no basis put forward by the privacy commissioner to show that the privilege was not properly claimed;
• the only reason asserted for compelling the production and inspection of the documents is that Blood Tribe indicated that such documents existed—no necessity arising from the circumstances of inquiry was claimed;
• the privacy commissioner's view is that piercing the privilege would become the norm rather than the exception in the course of her everyday work;
• PIPEDA does not implicitly grant the privacy commissioner the power to review documents where solicitor-client privilege is claimed—either to verify the privilege claim, or for any other purpose;
• to a client, compelled disclosure to an administrative officer, even if not disclosed further, would constitute an infringement of the privilege;
• although PIPEDA does give the privacy  commissioner some court-like procedural powers, she is not a court of law—in pursuit of her mandate she may become adverse in interest to the party whose documents she wants to  access—not true of a court;
• the privacy commissioner has not made out a case that routine access to solicitor-client confidences is "absolutely necessary" to achieve the ends sought by PIPEDA;
• the privacy commissioner has at least two alternative effective and expeditious means of exercising her authority to ensure PIPEDA requirements are met:

          o refer a question of solicitor-client privilege to the federal court; and
          o report an impasse over privilege in her report of findings and, with the agreement of the complainant, bring an application to federal court for relief.

Terry McQuay, CIPP, CIPP/C, is the Founder of Nymity, which offers Web-based privacy support to help organizations control their privacy risks. Learn more at www.nymity.com.