Information must be consistently held in confidence to qualify for section 23

Complaint: Library and Archives Canada (LAC) refused access to historical memoranda and telegrams between counsel and the Deputy Minister of Justice related to an individual’s 1918 legal action against the federal government, claiming legal advice privilege under section 23.

Investigation: The OIC disagreed that most of the information qualified as legal advice and found that the institution had not shown it had held the information consistently in confidence, as section 23 requires. In addition, the OIC found that LAC had not shown it had properly exercised its discretion when applying the exemption, because it had not considered certain relevant factors that favoured release.

Outcome: In response to the OIC’s formal request for evidence on these points, LAC released all of the records.

Information Commissioner’s position

  • Institutions must show that they have consistently held legal advice in confidence over time.
  • In addition, institutions must demonstrate that they considered factors such as the age of the records and their historical value when exercising their discretion to refuse disclosure.
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