Library and Archives Canada released a legal-advice letter from 1933 after the Information Commissioner found that relying on a 100-year internal threshold, without examining the document’s circumstances, was an unreasonable exercise of disclosure discretion.
In Library and Archives Canada (Re), 2026 OIC 47, dated May 13, the commissioner upheld the letter’s solicitor-client privilege but found the access complaint well founded. No disclosure order was needed because the institution had released the withheld information on May 4.
The request concerned documents about appointing an administrator to perform a lieutenant-governor’s functions during absence, illness or another inability to act. The disputed information appeared in a Dec. 7, 1933 letter from the acting deputy minister of justice to Prince Edward Island’s premier.
Privilege remained, but discretion still mattered
Section 23 of the Access to Information Act permits an institution to withhold material protected by solicitor-client privilege. Even where that protection applies, the institution must reasonably consider whether to disclose it.
Library and Archives explained that the federal and provincial governments had a common interest in the advice. It concerned federal legislation with implications for provincial responsibilities and had been shared confidentially. The commissioner accepted that the information qualified for solicitor-client privilege.
The problem arose at the next stage: deciding whether to maintain confidentiality in the particular circumstances.
The institution had a policy encouraging disclosure of privileged records more than a century old, reasoning that release would not harm living people involved. It withheld this letter, described in the report as 93 years old, on the possibility that affected individuals might still be alive. It said it had not considered the relevance of the document’s contents further.
An internal threshold could not replace a case-specific assessment
The commissioner pointed out that the people involved had been dead for more than 50 years. Applying the age threshold rigidly, without considering the document’s contents or context, did not adequately exercise the statutory discretion.
Library and Archives agreed to reconsider and ultimately released the information. The complaint remained well founded because its original decision had omitted relevant factors.
The ruling did not extinguish privilege merely because a document was old or establish a universal disclosure date. It addressed the institution’s obligation to assess whether to release a privileged record, rather than treating its internal age policy as conclusive.
