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.