Not everything a lawyer drafts is legal advice

Complaint: The Canadian Human Rights Commission and the Immigration and Refugee Board refused access to training manuals and guidelines, exempting them as legal advice under section 23.

Investigation: The OIC found that while some of the information was legal advice, the majority was not.

Outcome: Both institutions released most of the information. The Immigration and Refugee Board also waived its privilege over some records that did contain legal advice and released them.

Information Commissioner’s position

  • Not everything drafted by a lawyer is legal advice.
  • When records do qualify for exemption under section 23, institutions must also consider whether there would be benefits to the public in waiving privilege and releasing the information.
  • For example, the Canadian Human Rights Commission has a public education mandate, and the public would benefit from understanding how it conducts investigations, which was the subject of the records in question.
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