Fuller v. Nova Scotia (Freedom of Information and Protection of Privacy Co-ordinator)

Fuller v. Nova Scotia (Freedom of Information and Protection of Privacy Co-ordinator) Court Supreme Court Date 2003-03-18 Citation 2003 NSSC 58 Docket SH 18473 (A) Judge/Registrar/Adjudicator Pickup, Arthur W. D. (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Fuller v. Nova Scotia (Freedom of Information and Protection of Privacy Co-ordinator) , 2003 NSSC 58 Date: 2003/03/18 Docket: S. H. No. 184731(A) Registry: Halifax IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 41 OF THE FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, S.N.S. 1993, c. 5 Between: Shawn Fuller Appellant v. Her Majesty the Queen, in Right of Nova Scotia, as represented by Robert P. Doherty, Freedom of Information and Protection of Privacy Co-ordinator Respondent Judge: The Honourable Justice Arthur W. D. Pickup Heard: February 11, 2003, in Halifax, Nova Scotia (Final written submission - March 11, 2003) Date of Decision: March 18, 2003 Counsel: Graham Steele, for the Appellant Louise Walsh Poirier, for the Respondent By the Court: [1] The Province raised fees for accessing information under the Freedom of Information and Protection of Privacy Act. On March 26th, 2002 the Appellant, Shawn Fuller, the Manager of Research for the NDP Caucus, applied to the Nova Scotia Department of Justice (“the Province”) for access to “all records related to the decision to increase FOIPOP fees.” [2] Portions of the record were released by the Province. In respect of the remaining withheld record, an Appeal to this Court was filed by the Applicant on August 12th, 2002. [3] The issue with respect to this Appeal is whether, on a balance of probabilities, the documents in the withheld record are protected from disclosure by s. 13, 14, and 16 of the Freedom of Information and Protection of Privacy Act. [4] The right of Appeal to the Supreme Court is set out in s.41(1) of the FOIPOP Act: 41(1) Within thirty days after receiving a decision of the head of a public body pursuant to Section 40, an applicant or a third party may appeal that decision to the Supreme Court in such form and manner as may be prescribed by the Nova Scotia Civil Procedure Rules or by the regulations. [5] The Supreme Court of Nova Scotia has very broad powers under s. 42 of the FOIPOP Act. As here, where an Appeal is brought, this Court may decide the matter de novo. The powers of the Court to order access to information are set out in s. 42(5)(a) and (b) of the FOIPOP Act. [6] The burden of proof is on the Respondent pursuant to s. 45(1) of the FOIPOP Act, and therefore, the onus of satisfying the Court that a record falls within an exemption lies upon the Respondent. [7] In my view, the applicable standard of proof is a normal civil standard of proof. [8] The Respondent, to support its position not to release the remainder of the requested record, cited exemptions either singly or in combination under ss. 13(1), 14(1) and 16 of the Freedom Of Information and Protection Of Privacy Act. [9] Because the Appellant nor his solicitor are able to view the subject material, it is important that detail be provided as to how I will approach my review. Before I review the specific provisions in ss. 13(1), 14(1) and 16 of the FOIPOP Act, it is necessary to highlight that Nova Scotia has a more unique and open FOIPOP Act than any other provincial jurisdiction. [10] In O’Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat) (2001), 197 N.S.R. (2d) 154, Saunders, J. A. for the Court of Appeal, outlined the uniqueness of the Nova Scotia Statute: [40] Thus, it seems clear to me that the Legislature has imposed a positive obligation upon public bodies to accommodate the public’s right of access and, subject to limited exception, to disclose all government information so that public participation in the workings of government will be informed, that government decision making will be fair, and that divergent views will be heard. [41] The FOIPOP Act ought to be interpreted liberally so as to give clear expression to the Legislature’s intention that such positive obligations would enure to the benefit of good government and its citizens. [55] In summary, not only is the Nova Scotia legislation unique in Canada as being the only Act that defines its purpose as an obligation to ensure that public bodies are fully accountable to the public; so too does it stand apart in that in no other province is there anything like s. 2(b). As noted earlier, 2(b) gives further expression to the purpose of the Nova Scotia statute that being: b) to provide for the disclosure of all government information with necessary exemptions, that are limited and specific, in order to (i) facilitate informed public participation in policy formulation, (ii) ensure fairness in government decision-making, (iii) permit the airing and reconciliation of divergent views. [11] The Court of Appeal also noted that Nova Scotia has a more open FOIPOP Act than any other provincial jurisdiction: [56] Thus the FOIPOP Act in Nova Scotia is the only Statue in Canada declaring as its purpose an obligation to ensure that public bodies are fully accountable and to provide for the disclosure of all government information subject only to “necessary exemptions that are limited and specific”. [57] I conclude that the legislation in Nova Scotia is deliberately more generous to its citizens and is intended to give the public greater access to information than might otherwise be contemplated in the other provinces and territories in Canada. Nova Scotia’s lawmakers clearly intended to provide for the disclosure of all government information (subject to certain limited and specific exemptions) in order to facilitate informed public participation in policy formulation; ensure fairness in government decision making; and permit the airing and reconciliation of divergent views. No other province or territory has gone so far in expressing such objectives. [12] Thus, the uniqueness of the Nova Scotia Act is a factor to be considered and the FOIPOP Act ought to be “interpreted liberally so as to give clear expression to the Legislature’s intent that such positive obligations would enure to the benefit of good government and its citizens”. (O’Connor, supra, para 41) [13] As an aid to interpretation of the various documents which comprise the withheld record, the Province filed two Affidavits. The Affidavits identified a number of individuals, including government lawyers, whose names appear throughout the documents in the withheld record. The Province has filed these Affidavits to provide evidence identifying the official position and responsibilities of the persons communicating in the withheld records. [14] Throughout the requested records, there is reference to Treasury and Policy Board. The Province, in its submission explains: The Treasury and Policy Board is a Cabinet Committee pursuant to s. 9(1) and 10(2) of the Public Service Act, R.S., c. 376: 9(1) There shall be a committee of the Executive Council called the Treasury and Policy Board, charged with establishing plans and policies for the operation of the government of the Province and ensuring that they are implemented in a co-ordinated and fiscally responsible manner. 10(2) the Treasury and Policy Board shall act as a committee of the Executive Council on all matters relating to ... . [15] I now turn to a review of the principles that I ought to apply in determining whether or not the documents in the withheld record are exempt from disclosure, under ss. 13(1), 14(1) and 16 of the FOIPOP Act. Section 13 Exemption [16] Section 13 of the Freedom Of Information and Protection Of Privacy Act contains an exemption from disclosure for “information that would reveal the substance of deliberations of the Executive Council or any of its committees, including any advice, recommendations, policy considerations ... submitted or prepared for submission to the Executive Council or any of its committees”. [17] Thus, s.13(1) allows the Government to protect information that would otherwise reveal the substance of Cabinet deliberations. To do so, the Government must establish that it meets the requirements set out in s.13(1) and that it is not the type of information described in s.13(2). [18] In O’Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat),supra, the Nova Scotia Court of Appeal interpreted s. 13 of the Nova Scotia Freedom of Information and Protection of Privacy Act, and concluded at para. 82: ... I see s. 13(1) as exempting the whole concept of Cabinet confidentially, a discrete concept, limited and specific, from the general duty of disclosure. And then, at para 107: ... What s. 13 provides is a carefully worded exemption to preserve and protect the principle of Cabinet secrecy for the important reasons mentioned by Justice La Forest is Carey v. Ontario, supra. Thus in my view s. 13 is an example of the limited and specific, necessary exemptions referred to in s. 2(b) of the FOIPOP. Section 13(1) leaves a discretion to the head of a public body that will extend broadly to the whole substance of Cabinet and Cabinet committee deliberations but nevertheless is limited and specific in the sense that it is exempted from the rules of disclosure imposed on all other information in government hands. [19] The Court of Appeal in O’Connor, supra, discussed the phrase “substance of deliberations” as used in s. 13(1) and concluded at para 92 that the test respecting the phrase “substance of deliberations” is: ... Is it likely that the disclosure of the information would permit the reader to draw accurate inferences about Cabinet deliberations? If the question is answered in the affirmative, then the information is protected by the Cabinet confidentiality exemption under s. 13(1). [20] In respect of the phrase “including any advice, recommendations, policy considerations, or draft legislation or regulations” as used in s.13(1) the Nova Scotia Court of Appeal, in O’Connor, supra, at para 95 concluded: In my opinion the words “including any advice, recommendations, policy considerations, or draft legislation or regulations” following “substance of deliberations” in s. 13(1) are simply added so as to provide specific examples of “information”, thus removing any ambiguity as to whether such things are in fact included. [21] To determine whether a document is exempt from disclosure under s. 13, one must determine what information is being communicated in the document as well as to review the “periphery information”, including the identification of the parties to the communication, and the position they hold in Government, how the information is labelled, and the purpose of the communication. In addition, the uniqueness of the Nova Scotia Act and the fact that the Act is more open than any other provincial jurisdiction should be considered. Once this analysis is complete, the question then becomes whether its disclosure would reveal “the substance of deliberations of the Executive Council or any of its Committees” and therefore exempt from disclosure. The Court of Appeal in O’Connor, supra at para 94 explains this process: [94] Whenever an application for information is filed, the head of the public body, or the Review Officer, or a reviewing court, must examine the information to see if the test I have described, is satisfied. Among other questions, the examiner will want to know: how the information is labelled or characterized by government, what it purports to be or do, and what, in fact, it is or does. However, no government can hide behind labels. The description or heading attached to the document will not be determinative. The hyperbole accompanying speeches or press releases will not be decisive. There is no shortcut to inspecting the information for what it really is and then conducting the required analysis under s. 13 to see if its disclosure would enable the reader to infer the essential elements of Cabinet deliberations. The Review Officer must always be wary of such traps before embarking upon the necessary inquiry. [22] While s.13(1) confirms that the substance of deliberations of Cabinet or its Committees are exempt from disclosure, s.13(2) recognizes that Cabinet confidentiality is less significant if the relevant advice and/or recommendations have been acted upon. In this matter, s.13(2)(c) is particularly relevant as the decision to raise FOIPOP fees has been made public and implemented by way of regulations. Therefore, in each instance, I must apply the process as outlined above and additionally I must determine whether or not any of the withheld documents would be considered background material within the meaning of s.3(1)(a) of the FOIPOP Act. Section 14 Exemption [23] The Respondent refuses to disclose portions of the withheld record on the basis of s. 14 of the Freedom of Information and Protection of Privacy Act. [24] S. 14 of the Freedom of Information and Protection of Privacy Act is as follows: Advice to public body or minister 14 (1) The head of a public body may refuse to disclose to an applicant information that would reveal advice, recommendations or draft regulations developed by or for a public body or a minister. (2) The head of a public body shall not refuse pursuant to subsection(1) to disclose background information used by the public body. [25] The intent of s. 14 is to protect from disclosure advice and recommendations developed within government. [26] There does not appear to be any judicial interpretation of s. 14 of the FOIPOP Act in Nova Scotia. In John Weidlich v. Saskatchewan Power Corporation (1997) Q.D.G. No. 834, the Saskatchewan Court of Queens Bench adopted a practical definition of “advice” as follows: [10] I suggest that the meaning of ‘advice’ in ordinary parlance is to be adopted here, meaning ‘primarily the expression of counsel or opinion, favourable or unfavourable, as to action, but it may, chiefly in commercial usage, signify information or intelligence’, per Rand, J. , in Moodie (J.R.) Co. v. Minister of National Revenue. [1950] 2 D.L.R. 145 (S.C.C.), at p. 148. [27] In O’Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat), supra, MacDonald, A.C.J. of the Nova Scotia Supreme Court, sitting as a Chambers Judge considered the meaning of “advice” in interpreting s.13(1). [28] The Chambers Judge concluded that “advice is part of the deliberative process”, and accepted the views of Commissioner Linden, the Ontario Commissioner in Order 118 that “advice” generally pertains to the submission of a suggested course of action which will ultimately be accepted or rejected by the recipient during the deliberative process. [29] The question in this case is whether the severed record for which a s.14 exemption is claimed is “advice, recommendations or draft regulations” and whether this information was directed to assisting the Executive Council to decide on a course of action respecting FOIPOP fees. If the answer to this is in the affirmative, then the document is exempt from disclosure under s.14. Section 16 Exemption [30] S. 16 of the Freedom of Information and Protection of Privacy Act provides: 16 The head of a public body may refuse to disclose to an applicant information that is subject to solicitor-client privilege. [31] In College of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner) [2002] B.C.J. No. 2779 and 2002 BCCA 665, Levine, J.A. writing for the British Columbia Court of Appeal commented on the solicitor client privilege in s. 14 of the British Columbia Act (which is identical to s. 16 of the Nova Scotia Act). At paras. 24 and 25 the British Columbia Court of Appeal stated: Section 14 of the Act imports all of the principles of solicitor client privilege at common law: see Legal Services Society v. B.C. (Information and Privacy Commissioner) (1996), 140 D.L.R. (4th) 372 at paras. 25-6 (B.C.S.C.), where Lowry J. said: Certainly the purpose of the [Freedom of Information and Protection of Privacy] Act as a whole is to afford greater public access to information and the Commissioner is required to interpret the provisions of the statute in a manner that is consistent with its objectives. However, the question of whether information is the subject of solicitor-client privilege, and whether access to a record in the hands of a government agency will serve to disclose it, requires the same answer now as it did before the legislation was enacted. The objective of s.14 is one of preserving a fundamental right that has always been essential to the administration of justice and it must be applied accordingly. Thus, the issue of solicitor client privilege raised on this appeal does not involve balancing the interests of the parties in disclosure or confidentiality. ... The question is only whether the Documents are subject to solicitor client privilege as defined at common law. [32] Like the British Columbia Act, I find that the Nova Scotia FOIPOP Act incorporates in s. 16 common law principles of solicitor client privilege. The question then becomes whether the severed documents in the withheld record are subject to solicitor client privilege as defined at common law and therefore exempt from disclosure under s. 16. [33] In Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co. [2000] N.S. J. No. 258 and (2000) NSCA 96 , Roscoe, J.A. for the Court of Appeal set out the common law principles of solicitor client privilege at paras. 14, 15 and 16 as follows: Parties to an action may withhold from production and disclosure documents for which they claim privilege. There are two distinct types of privilege relevant here: solicitor client privilege and litigation privilege (Baker v. Commercial Union Assurance Company of Canada et al (1995), 138 N.S.R. (2d) 169). The Supreme Court of Canada in Solosky v. The Queen [1980] 1 S.C.R. 821, adopted Wigmore’s statement of the modern principle of solicitor client privilege at p. 835: Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to the purpose made in confidence by the client are at his instance permanently protected from disclosures by himself or by the legal adviser, except the protection be waived. At p. 837 in Solosky, supra, Justice Dickson (as he then was), stated that in order to be protected by solicitor client privilege, a document must meet the following criteria: (i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and, (iii) which is intended to be confidential by the parties. More recently in Descôteaux et al v. Mierzwinski, [1982] 1 S.C.R. 860, Justice Lamer (as he then was), summarized the court’s position as follows at p. 892: In summary, a lawyer’s client is entitled to have all communications made with a view to obtaining legal advice kept confidential. Whether communications are made to the lawyer himself or to the employees, and whether they deal with matters of an administrative nature such as financial means or with the actual nature of the legal problem, all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, and consequently even before the former retainer is established. [34] I adopt this statement of solicitor client privilege as the applicable principles to apply to a determination of solicitor client privilege under s. 16 of the Nova Scotia FOIPOP Act. In reviewing the withheld documents for which exemption has been claimed under s. 16, it is noted that several different lawyers were involved in the giving of advice respecting the changes to the FOIPOP Act. Counsel for the Respondent has explained the unique situation of government where more than one solicitor might be providing advice on any given issue, and I accept that submission. [35] However, only to the extent that a document reveals that legal advice was sought or given, from the named legal counsel, will that document be found to be privileged under s. 16 of the FOIPOP Act. Solicitor client privilege at common law as defined in Mitsui, supra, and for the purposes of s. 16 of the FOIPOP Act, includes the privilege that attaches to confidential communications between solicitor and client for the purpose of obtaining and giving legal advice. [36] As noted above, because legal advice privilege protects the relationship between solicitor and client, the key question to consider is whether the communications is made for the purpose of seeking or providing legal advice, opinion or analysis. Legal advice type privilege arises only where a solicitor is acting as a lawyer, and giving legal advice to a client. Therefore, in each instance where such privilege is claimed herein, the question should be “was the named government lawyer acting as a lawyer and providing legal advice when he/she received, commented on or initiated a document or correspondence?” [37] In R. v. Campbell, [1999] 1 S.C.R. 565 the Supreme Court of Canada at para 50 commented: “it is, of course, not everything done by a government (or other) lawyer that attracts solicitor client privilege.” [38] The Court went on to state: Whether or not solicitor client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered. DECISION [39] The Respondent provided to the Court two Binders, Binder A consisting of the entire record, severed, as released to the Appellant, and Binder B, consisting of tabs “D” and “E”. Tab “D” contained all records released to the Review Officer and constitute all records sought by the Applicant. Tab “E” contains a copy of the entire record requested by the Appellant with highlights in yellow marker of the severed portions of the record not released to the Applicant. The record in Tab “E” also identifies the specific exemptions claimed by the Respondent for each severed portion of the requested record and includes a notation of either a s. 13(1), 14(1), or 16 exemption or a combination thereof. Tab “E” also contains at the top of the left hand side of the page a numerical number running from 1 through 95. It is this number that I will refer to identify the withheld document. [40] What follows is a review of each document from the withheld record based on the principles of interpretation set out earlier in this decision. The question for determination is simply one of whether access to a withheld record can be denied because a record is within one or more of the exempt sections. I have analyzed the contents of each document and the context in which the document was prepared, presented and delivered. As the disputed documents that have been filed by the Respondent have been sealed in Court records, this Court can only describe the records at issue in general terms without reference to their specific contents. Because the documents are sealed, it is difficult for the Court to give specific reasons for its decision on each document, as reference cannot be made to the contents of these documents. [41] I will now consider the position of the parties as they apply to each of the documents in question using the document number as supplied by the Respondent at Tab “E” of Binder “B”. Document at Page 1 [42] Exemption is claimed under s.13(1). This is an e-mail dated February 20th, 2002. As argued by the Respondent, this communication is an instruction from Cabinet. This communication summarizes the “substances of deliberations” of the Executive Council and is therefore exempt under s.13. Document at Page 2 [43] This document originates the day after the document at p. 1. Exemption is claimed under s.13. This document clearly outlines the actual deliberations of a Cabinet Committee and would reveal the substance of deliberations and is therefore exempt from disclosure. Documents at Page 3 - 8 [44] This document is a First draft of a Memorandum to Executive Council (Cabinet). [45] On the document at p. 3 the information under the words “Summary” was withheld. This information summarizes the information which follows in the Memorandum and exemption is claimed under s. 13. The document is exempt from disclosure under s. 13. As the Respondent argues, the information is more than a request but rather is a summary of the entire Memorandum to Cabinet. The withheld information reveals what Cabinet is being asked to discuss and decide upon and is likely that the disclosure of the information would allow the reader to draw accurate inferences about Cabinet deliberations. [46] At p. 5 the information is likewise exempt from disclosure under s.13 except for the last paragraph which is exempt under s.14. [47] At p. 6 the document is exempt from release pursuant to s.14 except for the last two paragraphs which are exempt under s.13. [48] At p. 7 the withheld record is exempt from disclosure under s.13. I am of the opinion that a s.16 exemption is not appropriate for a portion of the record as claimed. [49] At p. 8 the exemption claimed for s.13 is allowed, but for the last paragraph which is exempt under s.14. Document at Page 9 [50] This is an e-mail written by Vickie Harnish, the Executive Officer of Treasury and Policy Board, which is a Cabinet Committee. The document references “re your Memo on FOIPOP costs”. The first portion of the document has been released, but the last seven lines have been withheld under s.13. I am satisfied this document is exempt from disclosure under s.13. Document at Page 10, 11 and 12 [51] This is an e-mail dated February 25, 2002 and the subject is listed as “FOIPOP - Executive Council discussions”. Two paragraphs on document 10 were severed with an exemption claimed under s.14. After reviewing the two withheld paragraphs, I am satisfied that these constitute advice concerning the content of a Memorandum to Cabinet, as later presented in final form, in these documents. As a result these paragraphs are exempt from disclosure under s.14. [52] At p. 11 the last two paragraphs are severed with an exemption claimed under s.13 and 14. [53] These latter two paragraphs are exempt under s.14 as it is clearly advice to the Treasury and Policy Board. [54] At p. 12 there is a s.14 exemption claimed for the first five paragraphs and a portion of the sixth. These paragraphs are a continuation from the document at p. 11 and are likewise exempt under s.14 as being “advice”. [55] At the bottom of document at p. 12 is an e-mail which is the same e-mail as set out in document at p. 9 for which exemption is claimed. The withheld portions herein contained are exempt under s.13 as previously determined. Documents at Page 13 and 14 [56] These documents are identical and were released by the Respondent. Documents at Page 15, 16 and 17 [57] These documents are the same as documents at pp. 10, 11 and 12 except for the words “Thanks Bob” at the top of document at p. 15. These documents are exempt under s.14. Document at Page 18 [58] This is an e-mail dated February 26th, 2002 which has been released. Document at Page 19 [59] Exemption is claimed under s.13. The evidence satisfies me that this document is exempt from disclosure under s.13. Document at Page 20 [60] This is an e-mail dated February 28th, 2002. This document has been released. Document at Page 20A - 20F [61] Documents at pp. 20A - 20F were attached to the document at p. 20 and are a Draft Memorandum to Cabinet regarding FOIPOP. The documents were released to the Applicant with certain information severed and are similar but not identical to documents at pp. 3-8. In the latter documents at pp. 20A - 20F, there appears to be a difference in the section being claimed for exemption. For example, at the document at p. 5 in the second last paragraph, the exemption is claimed under s. 13. Whereas in the second last paragraph on document at p. 20C, an exemption is claimed under s.13 and 14. [62] As a result, while these documents are similar to those at pp. 3-8, I will review the documents at pp. 20A-20F and provide specific comments. I am satisfied, on the evidence, that the portion severed at p. 20A is exempt under s.13. [63] I am likewise satisfied beginning at the bottom of p. 20B and extending to the first four paragraphs on the top of p. 20C down to “consultation” is exempt under s.13. The second last paragraph at p. 20C is exempt under s.13 and I am satisfied the last paragraph comes within the exemption created by s. 14. [64] At p. 20D, the evidence satisfies me that the severed portions come within the exemption created by s.13, except for the last two paragraphs which is exempt under s.14. Document at Page 21 [65] The whole of this document was released except for one paragraph for which the Respondent claims exemption under s.13. From a review of the severed paragraph and applying the test as explained earlier, I am not satisfied that this severed portion falls within a s.13(1) exemption as claimed and I therefore order its release. Document at Page 22 [66] I order the severed portion of this document released as it clearly does not fall within an exemption under s.13 or 14 as claimed. Document at Page 23 [67] This is an e-mail dated March 2nd, 2002 and has been released. Document at Page 24 [68] The Respondent claims exemption under s.13 or 14. A review of the document and the communication therein does not satisfy me that the document is exempt either under s.13 or 14 and I order its release. Document at Page 25 [69] The Respondent claims an exemption under s.13 and 14 based on the fact that this document at p. 25 is “part of the interwoven communication involving a Cabinet Committee and reveals part of the play of events before the Cabinet Committee”. This argument is made by the Respondent throughout its brief. As noted in the Appellant’s brief, it is not enough for a s. 13 or 14 exemption to be merely part of a “continuum of communications”, but rather, in my opinion, the document must be viewed as a whole including the periphery information and what is being communicated and then the test applied, as discussed earlier, for a s.13 and 14 exemption. A review of this document as a whole, indicates to me that there is little, if any, communication to bring it within s.13 or 14 and I therefore order the release of this document. Document at Page 26 [70] This appears to be an e-mail dated March 4th, 2002. The body of the e-mail is blank. This document has been released. Documents at Page 27 and 28 [71] Exemption is claimed under s.13 and 14. The severed portions of the document are advice and therefore within the exemption provided for in s.14. I am not persuaded, by the arguments of the Respondent, that the document properly fits within the exemption in s.13. Document at Page 29 [72] Exemption is claimed under s. 13 and 14 for this document. This document is exempt from disclosure under s.14. Documents at Page 29A - 29I [73] This is the second draft of a Memorandum to Cabinet. The Respondent rightly points out that the only difference between the draft documents at p. 29A to 29I and the final Memorandum to Cabinet at documents at pp. 32-40 is that the draft is not signed by the Minister. The same, if not similar, documents were reviewed at document at pp. 3-8 and these documents are exempt from disclosure as noted for the documents at pp. 3-8. [74] As to the briefing note at document p. 29G, I am satisfied that the first paragraph severed on this page is exempt under s.13 and in respect of the remainder of the document, I find that these severed portions are exempt under s.14. [75] As to the documents at pp. 29H and 29I, these documents are exempt under s.14. Document at Page 30 [76] The Respondent indicates that there were attachments to this document identical to the final March 5th Memorandum forwarded to Cabinet which included the Communication Plan and briefing note. The Respondent argues that with the attachments to this document at p. 30, the document would be exempt under s.13 and s.14. [77] With respect, a complete review of this document would reveal only periphery information. Because there being no body of communication in this document, I am not satisfied that a s.13 or 14 exemption is appropriate and, therefore, I order the document released. Document at Page 31 [78] Exemption was claimed for this document under s.13. The evidence satisfies me that this document is exempt under s.13 as the disclosure would reveal the substance of Cabinet deliberations. Document at Pages 32-37 [79] These documents are the final Memorandum to Cabinet dated March 5th, 2002, referred to previously at pp. 29A -29F. The exemptions for the documents at pp. 32-37 would be the same as for pp. 29A-29F. Document at Page 38 [80] Exemption is claimed under s.13 and 14. The first severed paragraph at p. 38 is exempt under s.13. The remainder of the severed portion of the document is exempt under s.14. Documents at Pages 39 and 40 [81] Documents at pp. 39 and 40 are a Communications Plan already considered under documents at pp. 27 and 28. These documents are exempt from disclosure under s.14. Document at Page 41 [82] The Respondent claims exemption under s.16. This document is exempt as there is communication between a client and solicitor which entails the seeking of legal advice and solicitor client privilege applies. Document at Page 42 [83] The Respondent claims exemptions under s. 13 and 16. The document is exempt under s.16. The severed communication is being forwarded to a departmental solicitor seeking legal advice and, therefore, this document is subject to solicitor client privilege. Documents at Pages 43 and 44 [84] Both these documents appear to be identical. For the document at p. 44, the Respondent claims s.16 exemption and for the document at p. 43, the Respondent claims both s.13 and 16 exemptions. I find that both documents are exempt under s.16. The documents are clearly between departmental solicitors and communication concerns the seeking and giving of legal advice. Document at Pages 45 and 46 [85] The documents at pp. 45 and 46 are identical and exemption is claimed under s.13 and 16 on document at p. 45 and s. 16 on document at p. 46. Both these identical documents are exempt under s.16 as legal advice is given in a communication from a departmental solicitor to the Agent of the Minister of Justice. Document at Pages 47, 48 and 49 [86] Document at p. 47 is an e-mail forwarding a draft of a solicitor’s advice seeking input from another departmental person and is therefore protected by s.16. The attached advice at pp. 48 and 49 is likewise protected because this is the legal advice attached to document at p. 47. Document at Page 50 [87] Exemption is claimed under s.13 and 14 for document at p. 50. At the top of the document, there is handwritten notations which indicates comments are being provided in respect of this document. This document is exempt under s. 14 as it is advice to a public body. Document at Page 51 [88] Exemption is claimed under s.13 and 14. A review of this document satisfies me that the handwritten notations on the document at p. 51 is advice to a department and therefore exempt under s.14. Document at Page 52 [89] Exemption is claimed again under s.13 and 14. This document is exempt under s.13. Document at Page 53 [90] An exemption under s.16 is claimed. This document is exempt under s. 16 as this is an e-mail from a solicitor to the agent of the Minister of Justice providing legal advice. Document at Page 54 [91] Exemption is claimed under s.16. This document is exempt under s. 16 as the solicitor is providing advice to an Agent of the Minister of Justice. The advice is attached as document at pp. 55-57. Documents at Page 55 and 59 [92] These documents are the Report and Recommendations to the Executive Council dated March 7th, 2002. Portions of the documents have already been released to the Applicant. The summary severed at p. 55 is exempt under s.13, as to release the severed portion would reveal the substance of deliberations of Cabinet. [93] At p. 56 the last paragraph has been severed with a request for exemption under s.13. To release this information would likewise reveal the substance of Cabinet deliberations and it is therefore exempt under s.13. [94] At p. 57, for the severed portions, the Respondent claims exemption under s.13 and 14. The first two paragraphs on p. 57 are exempt under s.13 and the remainder of the document is exempt under s.14. [95] As to the documents at pp. 58 and 59, these were already reviewed and commented upon previously and the same exemption applies. Document at Page 60 [96] The Respondent claims exemption under s.16. The document is clearly advice from a solicitor to the client’s agent and therefore exempt under s.16. Document at Page 61 [97] The Respondent claims an exemption under s.16. A review of this document satisfies me that this document comes within the exemption created by s.16. The document contains drafting instructions between departmental solicitors. Documents at Pages 62-73 [98] No exemption has been claimed and these documents have been released. Document at Page 74 [99] An exemption is claimed under s.14 and 16 of the FOIPOP Act by the Respondent. [100] A review of the severed portions of this document does not satisfy me that the document is from or to a solicitor nor am I satisfied that legal advice is being communicated therein. [101] Respecting the s. 14 claim for exemption and reviewing the document as a whole, I am not satisfied that this document falls within the provisions of s.14. [102] As a result, I order the document be released. Document at Page 75 [103] Exemption is claimed under s. 13 and 16. I am not satisfied that there is solicitor client privilege under s.16, however, the document is exempt under s. 13. Documents at Page 76 and 77 [104] These two documents are identical. Exemption is claimed under s.16 for these identical documents. This document is clearly privileged and exempt under s.16. Documents at Page 78 and 79 [105] The Respondent claims exemption under s.16 for these identical documents. [106] The subject e-mail is clearly legal advice between an agent of the client and a solicitor respecting the drafting of regulations. [107] This document is exempt under s.16 as solicitor and client privilege. Documents at Pages 80-85 [108] These documents have been released. Document at Page 86 [109] The information on this document has been released except two lines at the bottom for which an exemption is claimed under s. 14. Reading the document as a whole, there is no indication who prepared the information, whether it has been communicated, what the communication means, if anything. Taken as a whole, I am not satisfied that the severed portion of this document fits within the exemption in s.14 and I order the release. Documents at Pages 87-93 [110] These documents have been released. Document at Page 94 and 95 [111] The Respondent claims exemption under s.16 and suggests that these documents are irrelevant to the subject application for disclosure. The date of the document at p. 94 does indicate a date of March 7th, 2001, which pre-dates the first documents which were initiated in the matter under review. I agree. The documents clearly pre-date the matter and, in any event, were they relevant, would be in the nature of legal advice and would be exempt under the solicitor and client privilege under s.16. [112] I allow the appeal in part and order the release of the severed portions of documents at pp. 21, 22, 24, 25, 30, 74 and 86. [113] Because the Respondent has a right to appeal this decision, pursuant to s.42(5)(b), I direct that these documents remain sealed for a period of 30 days after my Order is issued, pending any further Order of this Court or the Court of Appeal. [114] In respect of Costs, under the circumstances, it would be my inclination to have each party bear its own costs. In the event either party seeks costs, then I would invite written submissions, by the Respondent on or before the 25th day of March, 2003 and in reply by the Appellant on or before the 2nd day of April, 2003. J.