Freedom of information requests filed by the Brandon Sun for details of the legal opinion on whether Mayor Shari Decter Hirst breached conflict of interest law have been rejected by the City of Brandon.
In a letter dated June 28, city officials used the solicitor-client privilege clause of the province’s Freedom of Information and Protection of Privacy Act to deny access to all briefing notes, paper documents and electronic files on the case, including any documents or files involving members of city council or Decter Hirst.
The Sun had also filed a request for all documents on how much the conflict of interest legal opinion cost the city, which was also rejected. In another letter, dated June 28, the city invoked its solicitor-client privilege once again.
Under Section 27 of the Freedom of Information and Protection of Privacy Act, “the head of a public body may refuse to disclose to an applicant information that is subject to solicitor-client privilege.”
In his letter replying to the Sun’s request, city records manager Ian Richards said the legal opinion request was denied as:
“The records requested relate to a formal request for advice from a legal practitioner in the practitioner’s professional capacity, by the practitioner’s client, the City Clerk’s office. As such, the records are subject to legal privilege.”
The city also invoked the local public body confidences provision of the act, noting that the city can decline a freedom of information request if it reveals details discussed in a meeting authorized to take place “in the absence of the public” or in camera.
“The advice provided by legal counsel was presented during a closed meeting of City Council,” the letter reads:
“The closed meeting was authorized by 152(2) of the Municipal Act, therefore access to records related to said meeting is denied.”
The city declined to state how much the legal opinion cost citing the following:
“The records requested constitute lawyers bills of account and, accordingly, are presumptively subject to solicitor-client privilege. This presumption flows from the connection between lawyers’ bills and the nature of the relationship between lawyers and clients; the account reflects work done on behalf of the client (City), which involves communications that are privileged. As such, access is denied.”
It remains unclear how making public the total legal fees charged by a lawyer for a legal opinion could directly or indirectly reveal the privileged content of confidential solicitor-client communications.
The Sun made the requests after city councillors met and received a verbal report from its lawyer on whether Decter Hirst breached conflict of interest legislation relating to the Strand Theatre restoration project.
On Thursday, City Clerk Con Arvisais was asked who at the city invoked the solicitor-client exemption in the Freedom of Information and Protection of Privacy Act with regards to the Sun’s request.
“I’m not involved with those requests when they come in as they are dealt with solely by Ian Richards, who is formally designated as our access to information officer,” Arvisais said.
“Ian is part of (the City Clerk’s) department, but that designation is done by resolution so he basically operates independently and when it comes to the Freedom of Information and Protection of Privacy Act, the head of the public body is in this case the city manager (Scott Hildebrand).”
Richards was then contacted and asked the same question, as well as, who he consulted with when the freedom of information request was processed.
“I did consult with the city clerk on that,” Richards said. “The inquiry about the conflict of interest was handled by the city clerk’s office. I did not get into specifics about who was asking. But I did talk to (the city clerk).”
Richards declined to answer why the city would not reveal the cost of securing the legal opinion, first citing a need to consult other city officials before releasing any information, then later adding the only comment he could provide had been printed in the letters.
Republished from the Brandon Sun print edition July 14, 2012