The first part of this document provides orders, involving municipalities, that deal with issues specific to municipalities under the Freedom of Information and Protection of Privacy Act (FOIP or FOIP Act).
Municipality issue: Disclosure to a municipal inspector under the Municipal Government Act is a limited waiver of solicitor-client privilege that does not amount to a waiver to the world
Order F2021-02: Town of Athabasca (PDF)
An individual (the Applicant) made an access request under the FOIP Act to the Town of Athabasca (the Public Body) for a legal opinion that was given to the Town Council by a particular lawyer with a named law firm, about a specific matter (the Requested Record).
The Public Body denied the Applicant access to the Requested Record under section 27(1)(a) of the FOIP Act on the basis of solicitor-client privilege. The Applicant sought a review of that decision by this Office. Subsequently, the Applicant requested, and the Commissioner agreed to conduct, an inquiry into the Public Body’s response.
The Adjudicator found that the Public Body had established on a balance of probabilities that solicitor-client privilege applied to the Requested Record. The Adjudicator further found that the disclosure of the Requested Record by the Public Body to the municipal inspector under the Municipal Government Act, was a limited waiver of solicitor-client privilege to the municipal inspector for a limited purpose and did not amount to a waiver of the privilege to the Applicant or to the world at large. The Adjudicator found that none of the other circumstances identified by the Applicant amounted to a waiver or loss of solicitor-client privilege by the Public Body. Finally, the Adjudicator found that if it was appropriate to review the Public Body’s exercise of discretion in withholding the Requested Record, the Public Body had properly exercised its discretion in deciding to withhold the Requested Record.
Municipality issue: This order deals with a municipality’s policy respecting whistleblower complaints. However, it is decided on the basis of the adjudicator’s factual conclusions as to what occurred, rather than on the basis of interpretation of the policy
Order F2020-05: Regional Municipality of Wood Buffalo (PDF)
The Complainant made a complaint to the Commissioner that the former chief administrative officer (CAO) of the Regional Municipality of Wood Buffalo (the Public Body) had disclosed details of a whistleblower complaint he had made to the councillor who was the subject of the complaint.
The Adjudicator found that there was insufficient evidence in the inquiry to support the Complainant’s allegations and dismissed the complaint.
Municipality issue: This case determines that investigation for the purposes of potentially enforcing a by-law fell within “law enforcement” under the FOIP Act, hence the information collection at issue was authorized by section 33)b) of the Act (collection for the purposes of law enforcement); it was also authorized by section 33(c) – collection necessary for an operating program or activity of the public body.
Order F2019-42: City of Edmonton (PDF)
An individual made a complaint to this Office that the City of Edmonton (the Public Body) collected her personal information in contravention of the FOIP Act. The Complainant alleged that a bylaw officer employed by the Public Body peered into her home, in the course of responding to an animal control complaint regarding the Complainant. The Complainant also alleged that the Public Body disclosed her personal information during the prosecution process, and to other departments in the Public Body, in contravention of the Act.
The Adjudicator found that the Public Body did not collect the Complainant’s personal information when the peace officer recorded the number of dogs she observed in a front window. The Adjudicator determined that this was not personal information of the Complainant. The Adjudicator also determined that if the information was personal information, the Public Body was authorized to collect it under sections 33(b) and (c).
The Public Body did record personal information of the Complainant during the investigation of the bylaw complaint. The Adjudicator found that the information disclosed by the Public Body to the Municipal Prosecutor in relation to the contravention of the Animal Licensing and Control Bylaw was the Complainant’s personal information. The Adjudicator determined that this disclosure was authorized under the Act.
The Adjudicator found that the Complainant did not substantiate her claim that her personal information was disclosed to other areas of the Public Body.
Municipality issue: This case decides that a by-law that provides that specific fees may be charged (in this case, those set out in the FOIP Regulation fee schedule) cannot override the FOIP Act restriction that only actual costs may be charged
Order F2019-21: County of Two Hills No. 21 (PDF)
An individual (the Applicant) made a request to the County of Two Hills No. 21 (the Public Body) under the FOIP Act for “all records related to expense claims made by members of the County of Two Hills council”. The Applicant requested supporting documentation for each claim. The time period for the requested records was October 1, 2007 to March 15, 2013.
The Public Body provided the Applicant with a fee estimate in the amount of $1,000.00. The Applicant requested that the Public Body waive the fee on the basis that the records were in the public interest. The Public Body declined to waive the fee.
The Adjudicator found the Public Body failed to substantiate that the $0.25 per page that it charged to the Applicant for photocopying did not exceed the Public Body’s actual costs as required by the FOIP Act. The Public Body also did not provide sufficient information or evidence on how it calculated the estimated or actual cost of any of the additional items it charged the Applicant for. As a result, the Adjudicator ordered the Public Body to refund all fees that were paid by the Applicant.
Given the foregoing findings, it was not necessary for the Adjudicator to determine whether payment of any of the fee should be refunded on the basis that the records related to a matter of public interest.
Municipality issue: This case emphasizes that the exception to disclosure set out in section 23(1)(b) (in camera deliberations) applies only to the substance of the discussions in the in camera meeting, and not to their subject-matter.
Order F2018-14: City of Calgary (PDF)
The Applicant made a request under the FOIP Act to the City of Calgary (the Public Body) for copies of two reports created for the Public Body by an outside consultant in.
The Public Body responded to the Applicant, refusing to disclose the requested information, initially citing sections 17(1) (invasion of third party privacy), 20(1)(d) (confidential source of law enforcement information), and 27 (privileged information). The records at issue consist of a document described by the Public Body as a legal opinion (pages 1-22) and a Whistleblower Investigative Report (pages 23-32, the Report).
Later (at inquiry) the Public Body also applied sections 23(1)(b) (local public body confidences) and 24(1)(a) (advice from officials) to information in the Report.
The Adjudicator upheld the Public Body’s claim of solicitor-client privilege (section 27(1)(a)) over the entire record comprising pages 1-22 of the records at issue. The Adjudicator did not accept the Public Body’s claim of “public interest privilege” (section 27(1)(a)) over any of the information in the Report comprising pages 23-32 of the records at issue.
The Adjudicator determined that section 23(1)(b) (local public body confidences) did not apply to any of the information in the records at issue, as it did not reveal the substance of in camera deliberations of the Calgary City Council. While the Report appears to have been discussed by Council, revealing only the subject-matter of a discussion is not the same as revealing the substance of the discussion.
The Adjudicator found that the Public Body properly withheld some information under section 24(1)(a) (advice from officials) but that this provision did not apply to information that consisted of mere background facts.
The Adjudicator determined that section 17(1) required the Public Body to withhold personal information of the unnamed individuals (including complainants and witnesses) who participated in the whistleblower investigation that resulted in the Report. The Adjudicator also found that the personal information of the named individuals who were the subjects of the investigation must be withheld under section 17(1), in part because revealing the identity of the named individuals could also reveal the identity of the unnamed individuals.
The Adjudicator determined that the information that could reveal a confidential source of law enforcement information (section 20(1)(d)) was properly withheld under section 17(1). Information that did not identify an individual (and therefore to which section 17(1) could not apply) could not be withheld under section 20(1)(d).
The Adjudicator ordered the Public Body to disclose some additional information in the Report to the Applicant.