HR | Atlantic - Positive Change at Work

NS Freedom of Information decision requires parties to defend solicitor-client privilege

Jul 27, 2010

Most people have an understanding that communications between a solicitor and client is protected by solicitor-client privilege.  Not even a supreme court judge can demand that the contents of those conversations be revealed.  However, in a July 16 decision, a Nova Scotia Freedom of Information and Protection of Privacy Review Officer ruled that it is not sufficient to cite solicitor-client priviledge in exempting material from a Freedom of Information access request.  The officer indicated that the party refusing access must not only cite the solicitor-client exemption, but also give reasons as to how it exercised its discretion in not waiving the exemption.

Such an approach would throw a considerable chill on communications between organizations and their lawyers.  With the possibility that their correspondence could be accessed by a third party, clients and their lawyers would be less likely to have complete and detailed records of their communications, and indeed may not even have a full and frank sharing of information lest one party or the other make notes to a file. 

This decision is so out of sync with the general understanding and application of solicitor-client privilege that we assume that the decision will be challenged through judicial review.   We’ll all stay tuned…

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