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Newfoundland and Labrador, Canada: Courts Impose Excessive Limits on Power of Information Commissioner to Review Legal Documents

8 April 2022.

The Centre for Law and Democracy (CLD) expresses deep disappointment in the recent decision of the Newfoundland and Labrador Supreme Court to deny the province’s information commissioner the authority to review documents which the government claims are protected by solicitor client privilege. This effectively deprives the commissioner of the power to review such claims so that the only real recourse available to requesters where such claims are made is to go to court.

When the provincial Access to Information and Protection of Privacy Act was adopted in 2015, the government made it clear that the intention was to enable the commissioner to review all documents claimed to be exempt, including claims based on solicitor client privilege. Historically, this exception has often been abused, for example when officials rely on it when lawyers are simply present or included on communications.

“It is surprising that the Supreme Court would interpret the Act in this fashion when this was clearly not the legislative intent behind it, which seems to reflect an overly secretive approach within the legal profession” said Toby Mendel, CLD’s Executive Director. “Hopefully this decision will get overturned on appeal since, otherwise, the only option will be to amend the Act.”

Newfoundland and Labrador has the strongest right to information law in Canada, as shown by CLD’s RTI Rating. This is the result of a comprehensive reform of the law in 2015. At the time, the government made a clear commitment to craft a strong law that would empower transparency in the province. The Supreme Court’s decision, along with the government’s reliance on solicitor-client privilege to avoid oversight, represents an unfortunate backsliding on government transparency in the province.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
twitter: @law_democracy

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