Records collected but not created for a study not covered by litigation privilege

Complaint: The National Research Council (NRC) refused to disclose records and 11 video files Marine Atlantic Inc. had sent to the NRC as part of a study of a marine accident. The NRC cited section 23 (litigation privilege), noting that there was to be a labour relations board hearing related to the collision.

Investigation: The OIC learned that some of the records and videos, such as the ship’s scheme, tidal charts, weather reports and CCTV videos, had been created before there was a reasonable prospect of litigation. Moreover, these documents would have been produced regardless of the collision.

Outcome: The NRC stated that it disagreed with the OIC’s analysis; however, it released the paper records that were collected but not created for the study. Five videos were also released (with the identities of some individuals obscured). Other exemptions were applied to the remaining videos to justify their being withheld.

Information Commissioner’s position

  • When determining whether litigation privilege applies, institutions must determine the dominant purpose for which the documents were produced.
  • In this case, the documents produced during or as a result of the study were privileged information. The records collected but not created for the study were not.
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