Newfoundland and Labrador's information and privacy commissioner is calling on the province to change the law to better allow his office to review legal documents.
"We don't want to review them to release the documents," commissioner Michael Harvey said.
"We just want to review them to make sure that they are legal advice. That's our role, to verify whether or not the government is able to hold these back under our laws."
The issue is concentrated around requests filed under the Access to Information and Protection of Privacy Act, known as ATIPPA. The act's purpose is to provide the public with access to government documents and records.
Last month, Newfoundland and Labrador Supreme Court Justice Alexander MacDonald ruled that the commissioner does not have authority to compel production of records when the government asserts solicitor-client privilege.
Harvey said the default response to requests is to just release the documents, but there are many exceptions where a document won't be released to the public, and legal advice to the province is among those exceptions.
"Those exceptions are really important because they allow the government to do its business," he said.
"Nobody thinks that the government should have to put its legal advice out into the public domain. The question is, 'is the document legal advice?' That's where my office comes in."
Many documents not considered legal advice
However, Harvey said when government hasn't let those documents be reviewed in the past, it has later been revealed most of the information should have been released.
Harvey said in the early 2000's, the government tried to have the courts rule that the information and privacy commissioner did not have the ability to review legal documents. However, following a Supreme Court of Canada decision in 2008, Harvey said his predecessor took the matter to the Court of Appeals and won.
"The court said, 'OK, now here's all these documents that the government has been withholding. Take a look at them now, because you're allowed and just see if they're supposed to be protected,'" he said.
Harvey said his office reviewed the documents that had been withheld and "found that 80 per cent of them were not actually qualified as legal advice."
He said this incident raises the concern that there is an incentive for government to broadly claim the legal advice privilege across all types of documents.
"It ends up getting abused and stuff ends up getting withheld from the public that shouldn't be.…That would be a big hole in the way that our act works and my oversight role."
Harvey has brought the government to court over this issue in relation to a 2016 Supreme Court ruling that found Alberta's access legislation didn't have the right wording to allow its commissioner to review documents considered to be legal advice.
In 2019, the Newfoundland and Labrador government cited that 2016 decision and stopped letting the commissioner review some documents that it says are covered by solicitor-client privilege.
The matter had been in court ever since, leading to Justice Alexander MacDonald's recent Supreme Court decision, which Harvey plans to appeal.
"As a consequence of the Supreme Court decision back in 2016, there's some ambiguity about what our law means. I maintain that it means that I still can review these documents. The government maintains the opposite.… I recommend that the act be very simply clarified to make sure that I do have that ability to review this legislation," Harvey said.
"If the government feels that I shouldn't have that ability and that we should just have to trust it, then it can do what the previous administration did with Bill 29 and put that in the law."
I don't know how I can fulfil my tasks unless this is resolved. - Michael Harvey
Bill 29 was a controversial piece of legislation enacted under Kathy Dunderdale's PC government in 2012, which greatly restricted public access to documents and weakened the powers of the information and privacy commissioner. Among the array of measures in Bill 29 was removing the commissioners' ability to review documents deemed to be legal advice.
"It's a simple policy choice that would be easy to enact," Harvey said. "And I'm calling on the government to make that choice and be accountable for it."
However, Harvey cautioned that if Bill 29 was enacted, the office of the information and privacy commissioner would be "in a real jam."
He said usually the burden is on government to prove why a document should be withheld from the public.
"If they don't have to prove it, then I'm not sure what to do. So, that's the real jam. I don't know how I can fulfil my tasks unless this is resolved."