Canada: The Alberta Court Of Appeal Considers Confidential Information, Settlement Privilege And The Freedom Of Information And Protection Of Privacy Act

The Alberta Court of Appeal in its recent decision Imperial Oil Limited et al. v (Alberta) Information and Privacy Commissioner, 2014 ABCA 231 (found here), reaffirmed the significance of settlement privilege and did so specifically in the context of the Freedom of Information and Protection of Privacy Act, which governs the release of public documents in Alberta.

Imperial Oil Limited ("IOL") operated a refinery in the Lynnview Ridge area of Calgary between 1923 and 1975.  Subsequently, this site was developed for residential use. Sometime after the development was completed, petroleum and lead contamination was discovered.  Beginning in 2001, Alberta Environment ("AE") issued environmental protection orders ("EPOs") against IOL relating to cleanup of the lands. 

Through a mediation process prescribed under the Environmental Appeal Board Regulation, AE and IOL entered into a remediation agreement (the "Agreement").  The City of Calgary (the "City"), which was also involved in litigation with IOL with respect to the same environmental contamination, made a request under the Freedom of Information and Protection of Privacy Act ("FOIPP") for disclosure of the Agreement.  The City was provided certain parts of the Agreement, but AE objected to producing the majority of the Agreement on the basis that it was privileged, contained confidential information and was, accordingly, exempt from production.

The City then successfully applied to the Privacy Commissioner (the "Commissioner") for full disclosure of the Agreement.  On judicial review by IOL, the Commissioner's order for disclosure of the Agreement was overturned.  The chambers judge determined that the Agreement was confidential and privileged and, accordingly, not producible pursuant to sections 16 and 27 of FOIPP.

The Court of Appeal dismissed the Commissioner's appeal of this decision on the threshold issue of whether the Commissioner had standing to bring such an appeal.  The Court of Appeal determined that it was inappropriate for the Commissioner, who had previously acted as an arbiter between the City and IOL, to take a position with respect to the production of the Agreement.  The Court of Appeal found the Commissioner is required to be fair and neutral with respect to discharging his obligations under FOIPP and therefore had no standing to advance an appeal of this nature.

Notwithstanding the appeal was dismissed at that stage, the Court of Appeal provided additional commentary on whether the Agreement was producible under FOIPP. 

Settlement Privilege and FOIPP

The Court of Appeal considered whether the Agreement was privileged and, therefore, not producible pursuant to section 27 of FOIPP, which allows a public body to refuse disclose of documents on this basis. The Court of Appeal determined that settlement privilege is an important public policy doctrine, irrespective of the public or private nature of the dispute at issue, and that the common law doctrine of settlement privilege prevents disclosure under section 27 of FOIPP.  The Court of Appeal further held that the principles behind settlement privilege in private disputes are as important and relevant as those in regulatory matters.  One particularly salient fact was that the City admitted that it wanted to examine the Agreement in the context that it may assist the City's ongoing litigation with IOL.  The Court of Appeal determined that settlement privilege was designed to prevent exactly that situation and that disclosure of potentially damaging admissions by IOL would discourage other companies from entering into mediations in the future.

The Court of Appeal ultimately determined that section 27 of FOIPP expressly prohibited production of the Agreement, since it was determined to be privileged (para. 64).

Confidential Information and FOIPP

The Court of Appeal also found that the Agreement could not be produced as a result of section 16 of FOIPP, which states that disclosure of records will be refused if the information provided would reveal trade secrets, commercial, financial, labour relations, scientific or technical information of a third party that was supplied, explicitly or implicitly, in confidence and would result in some harm or loss to that third party (para. 73).

Appended to the Agreement were several reports commissioned by IOL that contained scientific and commercial information, which was not a matter of public record.  Throughout the Agreement, several clauses were carefully crafted to indicate that the Agreement and its contents were provided on a confidential basis and were to remain as such.  It was IOL's position, and the Court of Appeal agreed, that the release of IOL's information appended to the Agreement would cause IOL harm, particularly due to its ongoing litigation with the City.

The Commissioner had argued that since much of the information provided by IOL in the Agreement was authored by consultants commissioned by IOL, it was not IOL's information to attempt to protect.  The Court of Appeal rejected this argument on the basis that the strict ownership of the material is not the dominant consideration in meeting the criteria for section 16 of FOIPP but, rather it is the nexus between the party supplying the information and the information itself that is determinative.  As the information in this case dealt directly with IOL's business affairs, the nexus was sufficient to consider it  belonging  to IOL (para. 70). 

The Court of Appeal noted that while parties cannot "contract out" of FOIPP, they are free to "contract in" by closely tailoring any disclaiming language with that of the statute.  In this case, AE and IOL were careful to mimic the language in section 16 of FOIPP, to expressly indicate that the information in the Agreement was provided on a confidential basis, on the express understanding it was to remain so and not be disclosed by AE (paras. 75-76).  

Commentary

The Court of Appeal has affirmed the value and importance of settlement privilege.  Any notion that public policy may trump the common law doctrine of settlement privilege is now likely not in question in Alberta.

It is also important to note that the public body, AE, insisted on the privilege and confidentiality of the Agreement as strongly as IOL did.  Many regulatory bodies enter into settlement discussions and agreements on the strict condition that any agreement reached will be disclosed to the public.  Parties entering into sensitive discussions with regulatory or public bodies are wise to make their position on privilege and confidentiality expressly known at the outset.

This decision deals specifically with the provisions of FOIPP, which include specific provisions for when records will be produced.  Other statutes that contain similar disclosure should be carefully analyzed to determine whether they contain similar protections for confidential or privileged materials.

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