Commissioner does not issue report to individual seeking access to her personal information being withheld for reasons of solicitor-client privilege

PIPEDA Case Summary #2010-001

[Principle 4.9; Paragraphs 9(3)(a) and 13(2)(b)]

Lessons Learned

  • The Commissioner is not required to prepare a report of findings or of recommendations if the Commissioner is satisfied that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under the laws of Canada (other than this Part of PIPEDA) or else under the laws of a province.
  • Individuals involved in ongoing civil litigation who have been denied access to their personal information for reasons of solicitor-client privilege can use civil court procedures to address the matter of the claimed privilege.
  • In such cases, individuals can bring a motion to the Court to obtain a binding ruling on the appropriateness of the privilege being asserted on their personal information.

The following is an overview of the investigation and the Assistant Commissioner’s findings.

Summary of Investigation

After being involved in an accident, the complainant began civil litigation proceedings in provincial court against several of the other parties also involved in the accident.  Early in her litigation (i.e. at the discovery stage), she requested access to her information from the insurer of one of the defendants.  She was specifically seeking information contained in documents over which the defendant’s lawyer had claimed solicitor-client privilege.  The privilege was claimed in an executed, sworn affidavit of documents signed by the defendant and effectively barred the woman from accessing her information from those documents.

The insurance company refused the woman access to the information she sought, stating that since it was subject to solicitor-client privilege under paragraph 9(3)(a), the insurer was not obliged to allow her access.  The woman then filed an access complaint with our Office, under Principle 4.9, which prompted our investigation into the matter.

Findings

Issued March 23, 2010

Application: Principle 4.9 stipulates in part that an individual shall be informed of the existence, use and disclosure of their personal information and shall be given access to that information. Paragraph 9(3)(a) states that despite the note that accompanies clause 4.9 of Schedule 1, an organization is not required to give access to personal information only if the information is protected by solicitor-client privilege. Paragraph 13(2)(b) states that the Commissioner is not required to prepare a report if the Commissioner is satisfied that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under the laws of Canada, other than this Part, or the laws of a province.

In making her determinations, the Assistant Commissioner deliberated as follows:

  • The essence of the complaint was that the insurer did not provide the woman with access to documents containing her personal information that were named as privileged in an affidavit of documents executed in an ongoing civil litigation.
  • After reviewing the evidence and the representations of the parties, the Assistant Commissioner was satisfied that other court procedures available to the woman were more appropriate in the circumstances to at least initially, if not completely, address the access issues raised in her complaint.  The Assistant Commissioner cited specifically the woman’s option of bringing a motion to the Court in order to obtain a binding ruling on the validity of the privilege that was being asserted.
  • In this way, there would be no duplication of access-to-information efforts, thereby ensuring the judicious use of public resources.

Conclusion 

The Assistant Commissioner concluded that, pursuant to paragraph 13(2)(b), this Office would not be issuing a report of findings or recommendations for the complaint.

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