Privateness commissioner seeks change in entry to data legislation to permit assessment of authorized recommendation

Michael Harvey, Newfoundland and Labrador’s provincial data and privateness commissioner, is asking on the federal government to make clear laws to permit his workplace to assessment paperwork coated by the solicitor-client privilege. (Patrick Butler/Radio-Canada)

The Info and Privateness Commissioner for Newfoundland and Labrador has referred to as on the provincial authorities to vary the legislation to raised enable his workplace to assessment authorized paperwork.

“We do not need to assessment the paperwork for launch,” Commissioner Michael Harvey mentioned.

“We solely need to assessment them to verify they’re authorized recommendation. It’s our position, to confirm whether or not the federal government is ready to maintain these again below our legal guidelines.”

The problem centered round requests filed below the Entry to Info and Safety of Privateness Act, higher often called ATIPPA. The target of the Act is to offer entry to authorities paperwork and information to the general public.

Final month, Newfoundland and Labrador Supreme Courtroom Justice Alexander McDonald dominated that the commissioner doesn’t have the authority to compel the manufacturing of information when the federal government claims solicitor-client privilege.

Harvey mentioned the default response to requests is to easily launch paperwork, however there are exceptions when a doc is not going to be launched to the general public, and authorized recommendation to the province is a type of exceptions.

“These exceptions are actually essential as a result of they permit the federal government to do its enterprise,” he mentioned.

“Nobody thinks the federal government ought to make its authorized recommendation public. The query is, ‘Is the doc authorized recommendation?’ That is the place my workplace comes.”

Many paperwork not thought-about authorized recommendation

Nonetheless, Harvey mentioned that whereas the federal government has not reviewed these paperwork up to now, it later seems that many of the data ought to have been launched.

Within the early 2000s, Harvey mentioned, the federal government tried to rule the courts that the Info and Privateness Commissioner didn’t have the flexibility to assessment authorized paperwork. Nonetheless, after the Supreme Courtroom of Canada ruling in 2008, Harvey mentioned that his predecessor took the case to the Courtroom of Enchantment and gained.

“The court docket mentioned, ‘Okay, now these are all paperwork the federal government is withholding. Now check out them, as a result of you’ve gotten permission and see if they need to be preserved,'” he mentioned.

Harvey mentioned his workplace reviewed the paperwork that had been withheld and “discovered that 80 p.c of them didn’t truly qualify for authorized recommendation.”

He mentioned the incident raises issues that there’s an incentive for the federal government to broadly declare the authorized recommendation privilege in every kind of paperwork.

“It results in abuse and taking away stuff from the general public that should not be there. … That may be an enormous gap in the way in which we operate and my monitoring position.”

The province’s Supreme Courtroom lately dominated that the commissioner doesn’t have the authority to compel the manufacturing of information when the federal government claims solicitor-client privilege. (Paul Daly/CBC)

Harvey has introduced the federal government to court docket on the difficulty in relation to a 2016 Supreme Courtroom determination that discovered Alberta’s entry legislation doesn’t have the proper phrases to permit its commissioner to assessment paperwork thought-about authorized recommendation. Had been.

In 2019, the Newfoundland and Labrador authorities cited that 2016 ruling and stopped letting the commissioner assessment sure paperwork, which it says are coated by the solicitor-client privilege.

The matter has been in court docket ever since, resulting in a current Supreme Courtroom ruling by Justice Alexander MacDonald, towards which Harvey plans to attraction.

“Because of the Supreme Courtroom ruling in 2016, there may be some ambiguity about what our legislation means. I’ve to say meaning I can nonetheless assessment these paperwork. The federal government holds the alternative. . .. I like to recommend that the act be quite simple and clarified to guarantee that I’ve the flexibility to assessment this legislation,” Harvey mentioned.

“If the federal government thinks I should not have that functionality and we should depend on that, it could possibly do what the earlier administration did with Invoice 29 and put it into legislation.”

I do not know the way can I full my duties till it’s resolved.— Michael Harvey

Invoice 29 was a controversial piece of laws enacted in 2012 below the PC authorities of Kathy Dunderdale, which restricted public entry to paperwork and weakened the powers of the Info and Privateness Commissioner. The array of measures in Invoice 29 was to take away the flexibility of commissioners to assessment paperwork thought-about authorized recommendation.

“It is a easy coverage possibility that may be simple to enact,” Harvey mentioned. “And I am calling on the federal government to make that alternative and be accountable for it.”

Nonetheless, Harvey cautioned that if Invoice 29 had been enacted, the workplace of the Info and Privateness Commissioner could be “in an actual jam”.

He mentioned that normally the burden is on the federal government to show why a doc must be withheld from the general public.

“If they do not should show it, I do not know what to do. So, it is the actual jam. I do not know the way I will end my duties till it is solved.”

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