Practice Note – Providing Affidavits and Other Evidence

In a review or inquiry under the Freedom of Information and Protection of Privacy Act (FOIP Act), Access to Information Act (ATIA), Protection of Privacy Act (POPA), Personal information Protection Act (PIPA) or Health Information Act (HIA), evidence is often required to support factual and legal claims. In some cases, evidence must be provided in the form of a sworn affidavit. Affidavits should also be provided to support the application of exceptions or exclusions under the Acts where the public body/organization/custodian (respondent) is not required to provide the records for the Commissioner’s review.

Respondents are also encouraged to provide affidavit evidence in support of their efforts to search for records responsive to an access request. Parties may also consider providing affidavit evidence in situations where factual issues may be contentious.

This Practice Note sets out guidelines for providing affidavits and other evidence for an inquiry, including specific considerations when providing affidavits and other evidence in support of

• A respondent’s search for records in response to an access request
• A public body’s application of sections 4(1)(a), (s), (t) or (w) of the ATIA
• A public body’s application of section 27 of the ATIA (cabinet confidences)
• A public body’s/organization’s claim of solicitor-client privilege, litigation privilege, or informer privilege under the FOIP Act or PIPA, or legal privilege under the ATIA.

These guidelines also apply to affidavits provided as evidence in situations other than those listed above.

General Guidelines when providing affidavits

In an inquiry, affidavits are to be exchanged with the other parties to the inquiry.

An affidavit must contain information about the person swearing the affidavit, including the individual’s name and an explanation of how they have knowledge of the evidence being presented in the affidavit.

An affidavit should, wherever possible, be sworn by a person having personal knowledge of the facts being sworn to.

Affidavit evidence should be sufficiently detailed to allow the Commissioner and parties to an inquiry to fully understand its contents, and should, wherever possible, be confined to facts within the personal knowledge of the person swearing the affidavit.

Parties shall ensure that all affidavits provided to the Commissioner are truthful, complete, and accurate.

It is an offence under the Acts for anyone to willfully make a false statement to, mislead, or attempt to mislead the Commissioner in the performance of their functions.

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Affidavits in support of a Respondent’s search for records

The duty to assist under section 10 of the FOIP Act, section 12 of the ATIA, section 27 of PIPA and section 10 of the HIA includes a duty to conduct an adequate search for records.  The respondent has the burden of proving that it conducted an adequate search for records responsive to an access request.

In an inquiry addressing a respondent’s search for records, it is helpful for the respondent to provide the Commissioner with an affidavit regarding the search conducted for records responsive to the applicant’s access request. In addition to the elements set out in the general guidelines above, the respondent may wish to consider addressing the following:

 The specific steps taken by the respondent to identify and locate records responsive to the applicant’s access request.

• The scope of the search conducted, such as physical sites, program areas, specific databases, off-site storage areas, etc.
• The steps taken to identify and locate all possible repositories where there may be records relevant to the access request: keyword searches, records retention and disposition schedules, etc.
• Who did the search? (Note:  that person or persons is the best person to provide the direct evidence).
• Why the respondent believes no more responsive records exist other than what has been found or produced.
• Any other relevant information.

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Affidavits in support of an application of sections 4(1)(a), (s), (t), or (w) of the ATIA

Where a public body has refused access to records or information for the reason that the records or information are excluded from the scope of the ATIA under sections 4(1)(a), (s), (t), or (w) of that Act, the public body has the burden of proving that there is no right of access (section 63(1)).

In an inquiry addressing a public body’s claim that section 4(1)(a), (s), (t), or (w) of the ATIA applies, it is helpful for the respondent to provide the Commissioner with an affidavit setting out the relevant facts. In addition to the elements set out in the general guidelines above, the affidavit should include a schedule in which the public body lists the records to which it has applied sections 4(1)(a), (s), (t), or (w) of the ATIA, along with the description for each record. The description for each record should include sufficient detail to satisfy the public body’s burden of proof. Certain subsections may require specific information, for example:

• whether the public body has custody or control of the record and if not, why not (sections 4(1)(a), (s));
• who created the record (section 4(1)(t), (w));
• the position titles of the individuals involved in the communications (section 4(1)(w));
• Any other information relevant to the particular exclusion being claimed.

If the public body wishes to provide additional information regarding its application of these provisions in camera, it may request permission to do so following the process set out in Request to Provide an In Camera Submission form.

A public body is not precluded from providing the relevant records to the Commissioner as evidence.

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Affidavits and other evidence in support of a claim of cabinet confidences under section 27 of the ATIA

Where a public body withholds information under section 27 of the ATIA in response to an access request, the public body has the burden of proving that there is no right of access (section 63(1)).

If a public body does not provide records or information to the Commissioner on the basis that section 27 applies to that record or information, the Commissioner may require the public body to attest that this provision applies to the information or record over which it is claimed (section 50(7)). Section 11 of the ATIA Regulation states that a public body may provide this attestation by way of a letter:

• signed or approved by the head of the public body; and
• containing a description of the record or information explaining how section 27 applies to the record or information.

A description must be provided for each record containing information to which section 27 is applied. Therefore, an attestation should include a schedule in which the public body lists the records to which it has applied sections 27(1)( or (2) of the ATIA, along with the description for each record. The description for each record should include sufficient detail to satisfy the public body’s burden of proof. The public body should address the particular elements set out in the subsection being claimed.

As the public body bears the burden of proof, a public body may also consider providing an affidavit in support of its claim.

If the public body wishes to provide additional information regarding its application of section 27 in camera, it may request permission to do so following the process set out in the Request to Provide an In Camera Submission form.

A public body is not precluded from providing the relevant records to the Commissioner as evidence.

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Affidavits in support of a claim of legal privilege

A respondent is not required to provide the Commissioner with records or information over which solicitor-client privilege, litigation privilege, or informer privilege is being claimed under the FOIP Act or PIPA, or to which section 32(1)(a) or (2) of the ATIA has been applied[1]. This part of the Practice Note applies to legal privilege under the ATIA, and solicitor-client, litigation and informer privilege under the FOIP Act and PIPA.

Where a respondent withholds information in response to an access request claiming a relevant privilege, the respondent has the burden of proving that there is no right of access[2]. The respondent is not precluded from providing the relevant records to the Commissioner as evidence.

As stated in Edmonton (City) Police Service v Alberta (Information and Privacy Commissioner, 2020 ABQB 10 (EPS), when a respondent does not provide records that it asserts are subject to privilege for review, it is required to establish its claim by meeting the civil litigation standard for refusing to produce such records, set out in Canadian Natural Resources Ltd v ShawCor Ltd, 2014 ABCA 289 (CanLII), 580 A.R. 265 (ShawCor).

Following Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (CanLII) and ShawCor, affidavits of records provided in support of claims of legal privilege must comply with Rules 5.7 and 5.8 of the Alberta Rules of Court (producible records, and records for which there is an objection to produce). In ShawCor, the Alberta Court of Appeal discussed the application of Rules 5.7 and 5.8 of the Rules of Court (producible records, and records for which there is an objection to produce). The Court stated (at para. 42-43):

… Therefore, in explaining the grounds for claiming privilege over a specific record, a party will necessarily need to provide sufficient information about that record that, short of disclosing privileged information, shows why the claimed privilege is applicable to it. Depending on the circumstances, this may require more or less than the “brief description” contemplated under Rule 5.7(1)(b) although we expect that oftentimes the brief description will suffice.

Accordingly, under either interpretation of the relevant Rules, a party must provide a sufficient description of a record claimed to be privileged to assist other parties in assessing the validity of that claim. From this, it follows that all relevant and material records must be numbered and, at a minimum, briefly described, including those records for which privilege is claimed. As noted, though, this is subject to the proviso that the description need not reveal any information that is privileged.

In addition to the elements set out in the general guidelines above, the affidavit should include a schedule in which the respondent lists the records (or bundle of records) for which privilege is claimed, along with the description for each record or bundle. A group of records may be numbered and treated as a single record if the records are all of the same nature, and the bundle is described in sufficient detail to enable the Commissioner to understand what it contains. The description for each record (or each bundle) must be sufficient to meet that test, without revealing the privileged information.

For claims of solicitor-client privilege, the Respondent should provide:

• Information about the relationship between the Respondent and the lawyer in the context of the relevant communication
• Information about the circumstances to establish that the record was created in the course of requesting or providing legal advice or is a record revealing such a request or advice
• Information about the confidentiality of the communication

For claims of litigation privilege, the Respondent should provide:

• Information establishing that the record was created for the dominant purpose of litigation
• Information establishing that the litigation has not ended

In Pritchard v. Ontario (Human Rights Commission) [2004] 1 SCR 809, the SCC determined that more evidence to support the application of solicitor-client privilege is required when advice sought from or given by an in-house or government lawyer is at issue. This is because such lawyers may be called upon to give policy advice, which is not legal advice. The Court said:

Owing to the nature of the work of in-house counsel, often having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if the circumstances were such that the privilege arose. Whether or not the privilege will attach depends on the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered.

Therefore, a respondent that is claiming solicitor-client privilege over the advice of an in-house or government lawyer must provide sufficient information about the relationship between the lawyer and the respondent and about the circumstances in which the advice is being requested and provided, to establish that the subject-matter is legal advice rather than policy or other advice.

If the respondent wishes to provide additional information regarding its claim of privilege in camera, it may request permission to do so following the process set out in the Request to Provide an In Camera Submission form.

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Sample Affidavit

OIPC File Number  _____________________

Applicant  __________________________________________

Respondent Public Body/Organization/Custodian __________________________________________

Affidavit of (name and status) Sworn (or Affirmed) by _____________________ on _______________, 20__

I, ______________________ of (municipality, province), have personal knowledge of the following (or, where applicable, I am informed and do believe that):

I am an authorized representative of (name of Respondent).

I have reviewed the records.

The records listed in Schedule 1 are in the custody or under the control of (name of Respondent).

(Name of Respondent) objects to produce the records listed in Schedule 1 on the grounds of privilege identified in that Schedule.

SWORN (OR AFFIRMED) BEFORE ME

at ___________________________, Alberta, this _____ day of _______________, 20___.

Commissioner for Oaths in and for the Province of Alberta

____________________________________

(Signature of Representative)

_____________________________________

Schedule 1

Records in the custody or under the control of (name of Respondent) for which there is an objection to produce on the ground of [cite relevant exception or legal privilege]:

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[1] Sections 27(1)(a) of the FOIP Act, 32(1)(a) and (2) of the ATIA, 24(2)(a) of PIPA

[2] Section 63(1) of ATIA, section 71(1) of the FOIP Act, and section 51 of PIPA