Library and Archives Canada (Re), 2026 OIC 47
Date: 2026-05-13
OIC file number: 5825-03354
Access request number: A-2022-09240
Summary
The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under section 23 (solicitor client privilege) of the Access to Information Act in response to an access request. The request was for specific documents pertaining to the appointment of administrator to execute the office and functions of Lieutenant Governor during his absence, illness or other inability. The allegation falls under paragraph 30(1)(a) of the Act.
LAC showed that the withheld information met all the requirements of the exemption. However, LAC could not show that it considered all relevant factors in its exercise of discretion not to release the information. The records at issue are 93 years old. LAC argued that, based on an internal policy, it routinely exercises its discretion to release records covered by solicitor-client privilege, which are more than a hundred years old, as disclosure of these records bears no risk of causing harm to living individuals directly or indirectly involved. The Office of the Information Commissioner was of the view that the strict adherence to the hundred-year-old threshold in LAC’s internal policy, without regard to the contents or the context of the record, did not constitute a reasonable exercise of discretion. During the investigation, LAC agreed to re-exercise its discretion and consider relevant factors such as the age, the context, and the contents of the record. LAC ultimately decided to release all the information.
The complaint is well founded as LAC did not reasonably exercise its discretion at the outset. However, an order was not necessary since discretion was re-exercised and the information was released.
Complaint
[1]The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under section 23 (solicitor client and litigation privilege) of the Access to Information Act in response to an access request. The request was for specific documents pertaining to the appointment of administrator to execute the office and functions of Lieutenant Governor during his absence, illness or other inability. The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
[2]When an institution withholds information under an exemption. It bears the burden of showing that refusing to grant access is justified.
[3]On May 4, 2026, LAC disclosed the information it had withheld under section 23 when it responded to the access request.
Section 23: solicitor-client and litigation privilege
[4]Section 23 allows institutions to refuse to disclose information subject to solicitor-client privilege or the professional secrecy of advocates and notaries when the information relates to legal advice given to a client. Section 23 also allows institutions to refuse to disclose information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.
[5]To claim this exemption with regard to solicitor-client privilege, institutions must show the following:
- The information consists of communication between a lawyer or notary and his or her client.
- That communication relates directly to the seeking or giving of legal advice, including all the exchanges of information needed to give legal advice.
- The parties intend the communication and advice to remain confidential.
[6]To claim this exemption with regard to litigation, institutions must show the following:
- The information was prepared or gathered for the dominant purpose of litigation.
- The litigation either is in progress or is reasonably expected to occur.
[7]Litigation privilege generally expires when the litigation ends, except when related litigation is pending or is reasonably expected to occur.
[8]When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to disclose the information.
Does the information meet the requirements of the exemption?
[9]LAC applied section 23 to withhold information on page 50 of the records. The information consists of the content of a letter dated December 7, 1933, addressed to the Premier of Prince Edward Island and signed by the Acting Deputy Minister of Justice.
[10]During the investigation, LAC explained that, while the Provincial and Federal Governments of Canada are separate entities, the concept of Common Interest Privilege applies to the information at issue. Premiers, Lieutenant Governors as wells as their federal counterparts are representatives whose authority is delegated under the Constitution Act 1867, a federal statute outlining both Provincial and Federal responsibilities and powers. This demonstrates that there was a practical, common interest between the two levels of government to share this advice confidentially. Advice was conveyed on a piece of federal legislation with provincial implications that was of relevance to both levels of government at the time.
[11]The Office of the Information Commissioner (OIC) concludes that the information falls under solicitor-client privilege and therefore meets the requirements of section 23.
Did the institution reasonably exercise its discretion to decide whether to disclose the information?
[12]Since the information meets the requirements of section 23, LAC was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, LAC had to consider all the relevant factors for and against disclosure.
[13]In its representations provided to the OIC, LAC explained having implemented an internal policy which encourages disclosure of older records covered by solicitor-client privilege. According to said policy, LAC routinely exercises its discretion to release records covered by solicitor-client privilege, which are more than a hundred years old, as disclosure of these records bears no risk of causing harm to living individuals directly or indirectly involved.
[14]However, in regard to the record at issue, which is 93 years old, LAC indicated refusing disclosure as the release of the record could reasonably inflict harm by breaking solicitor-client privilege for implicated individuals who may still be alive. LAC further stated that no further considerations were made regarding the relevance of the record’s contents.
[15]The OIC requested further representations from LAC, pointing out that the individuals involved in the record at issue had been deceased for over 50 years. The OIC expressed that that the strict adherence to the hundred-year-old threshold in LAC’s internal policy, without regard to the contents or the context of the record, does not constitute a reasonable exercise of discretion.
[16]LAC agreed to re-exercise discretion and ultimately decided to release the information.
[17]The OIC concludes that LAC did not consider all relevant factors when it initially decided not to disclose the information. The exercise of discretion by LAC was not reasonable.
Outcome
[18]The complaint is well founded as LAC did not reasonably exercise its discretion for information withheld under section 23. However, an order is not necessary since LAC re-exercised its discretion during the course of the investigation and released the information to the complainant on May 4, 2026.
Review by Federal Court
When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.