Ministry must disclose disputed information to privacy commissioner after B.C. Supreme Court justice sides with IndigiNews

IndigiNews reporter Anna McKenzie holds her daughter in a moss bag she had made. Photo by Captured Memories Photography

First Peoples Law Report: Indiginews – A B.C. Supreme Court judge has sided with IndigiNews in a case involving birth alert records held by the province’s Ministry of Children and Family Development (MCFD). 

In a decision released Tuesday, Justice Nitya Iyer ruled that the MCFD must disclose records that it was trying to keep under wraps to the privacy commissioner’s office for review.

This case pits the public’s right to access information against the ministry’s right to private communication with their lawyer — also known as solicitor-client privilege. It has relevance for hundreds of parents who were subjected to birth alerts before the practice was banned in 2019. As previously reported by IndigiNews, the practice has disproportionately impacted Indigenous families in “B.C.”

The decision could also inform how provincial privacy law is interpreted in future cases. 

And although, as of yet, there is no requirement for the MCFD to make the redacted records public, this decision brings full disclosure a step closer.  “To have a win is very uplifting,” says IndigiNews reporter Anna McKenzie, who’s been investigating birth alerts for several years.

“As a mom, I still can’t wrap my head around the practice of birth alerts, and I truly believe in seeking justice for families who may have had their little ones apprehended without any answers or justice.”

The IndigiNews team attended a two-day hearing on the matter in June, represented by our lawyer David Sutherland who made arguments along with representatives for the other two parties involved in the dispute: B.C.’s Office of the Information and Privacy Commissioner (OIPC) and the MCFD.

How did this case end up in B.C. Supreme Court?

The documents at the heart of this case were acquired by IndigiNews through a freedom of information request. They revealed a government memo calling birth alerts “illegal and unconstitutional” four months before the practice was formally stopped, as previously reported — but other sections of those documents were redacted.

The reason offered for the redactions was solicitor-client privilege, which is an exception to full disclosure under provincial privacy law.

When IndigiNews received these incomplete records in 2020, we asked the OIPC to review them. 

In its capacity as an oversight body, the OIPC ordered the MCFD to show them an unredacted copy of the records, so it could determine whether the information is in the public interest. But the ministry refused to share the unredacted records with the OIPC. 

The ministry argued that it couldn’t share any more without disclosing legal advice, and it took the position that public interest cannot override solicitor-client privilege.

The ministry then petitioned the B.C. Supreme Court for a judicial review. In other words, it asked the court to examine the OIPC’s order and consider tossing it out. 

The court’s decision

In June, B.C. Supreme Court Justice Iyer heard arguments from the MCFD, the OIPC and IndigiNews.  Her task, as she described it, was to decide whether section 25 of B.C.’s Freedom of Information and Protection of Privacy Act (FIPPA) compels “disclosure of information protected by solicitor-client privilege.” 

Section 25 is the public interest override. It requires “the head of a public body” to disclose without delay any information “about a risk of significant harm to the environment or to the health or safety of the public or a group of people” or any information “which is, for any other reason, clearly in the public interest.”

It adds that information in the public interest must be disclosed “despite any other provision of this Act”.

Lawyers for MCFD argued that the language in FIPPA’s section 25 is not “sufficiently clear, explicit and unequivocal” enough to override solicitor-client privilege — which is protected under section 14 of the Act.

But Iyer wasn’t persuaded by the MCFD’s argument. “There is no dispute that solicitor-client privilege is fundamental and nearly absolute,” she wrote in her decision released on July 11. 

“While the MCFD is correct that an exception to solicitor-client privilege must be clear, explicit and unequivocal, the words of s. 25(2) satisfy that requirement,” she wrote. “Where s. 25 requires disclosure, all disclosure exceptions, including the solicitor-client privilege in s. 14, must give way.”

Iyer further concluded that B.C.’s privacy commissioner — or one of the adjudicator’s acting on his behalf — has the power to order a public body to produce records protected by solicitor-client privilege. 

And if the MCFD doesn’t comply with the records order, the OIPC can apply to the B.C. Supreme Court to enforce it, she added.

According to IndigiNews’ lawyer, the ministry has 30 days to appeal Iyer’s decision.

An ‘opportunity to shape’ section 25

Justice Iyer pointed out that her decision “in no way foreshadows the outcome” of the OIPC’s review of IndigiNews’ section 25 request. 

In other words, just because she found that the MCFD must share the unredacted records with the OIPC, it doesn’t mean the OIPC will in turn require MCFD to share them with IndigiNews — and by extension, the public. 

The OIPC could find that the records don’t meet the public interest threshold. 

Since 1995, the OIPC has issued more than 100 orders addressing section 25 and IndigiNews couldn’t find any examples where the adjudicator made an order for information to be released under this section. IndigiNews tried to confirm this with the OIPC and was told by a spokesperson via email that the office isn’t able to disclose information about specific files, as per section 47 of FIPPA. 

But according to a 2013 report by BC’s then-privacy-commissioner, “there has not been a single instance where my office has ordered a public body to disclose information under this section” despite the fact that “many applicants seeking access to records frequently cite the section.”

“This is not surprising,” she added, given that disclosure under section 25 must be “both in the public interest and urgent.” She recommended the urgency requirement be dropped. 

Spencer Izen is a legal researcher with the BC Freedom of Information and Privacy Association (FIPA), a non-profit society.  “If [section 25 is] not working everytime someone tries it, it probably isn’t working,” he says, adding that this case marks “a real opportunity to shape how we use [section 25] going forward.”

Sometimes people treat section 25 “as a bit of a dart,” he says. “They just throw it at a board as a last attempt to see if they can get a redaction removed.” “This strikes me as a case that has a lot more intention behind the use of section 25,” he says. “There’s this trifecta between the content, section 25 and section 14 that is at issue here that makes this a very interesting case to pay attention to.” 

For McKenzie and the team at IndigiNews, the decision offers hope.

“Justice Iyer looked at the facts of the case, ruling in our favour,” says McKenzie. “We are celebrating our collective efforts to hold the ministry to account.”

Author

BRIELLE MORGAN

Brielle is a white, cisgender woman, a mama and a journalist who’s passionate about sharing power and working with community members to report on the so-called child-welfare system. She lives on the unceded lands of the xʷməθkwəy̓əm, Skwxwú7mesh, and Səl̓ílwətaɬ nations.