Alberta environment ministry ordered to release six pages after privilege evidence falls short

Alberta’s information and privacy adjudicator has ordered Environment and Protected Areas to disclose six pages of records after finding that the ministry failed to substantiate its solicitor-client privilege claim.

The October 9 order, FOIP2026-31, concerns a request for correspondence relating to a dam-safety assessment and risk-mitigation study about induced seismicity at Brazeau Dam. Adjudicator Amanda Swanek found that two sworn statements asserted the requirements of privilege without supplying the facts needed to assess whether those requirements were met.

The outcome has an important limit: Swanek expressly said the ministry’s failure to prove the access exception was not a finding that the records were unprivileged. She had not reviewed the six withheld pages and said only a court could make that determination.

From 443 withheld pages to six

The access request was received in June 2021 by what was then Environment and Parks. The ministry initially withheld all 443 responsive pages under section 27(1)(a) of the Freedom of Information and Protection of Privacy Act, which permits public bodies to refuse access to legally privileged information.

During the review’s settlement phase, the ministry withdrew its privilege claim over pages 7 through 443 and provided those 437 pages to the applicant. The inquiry was confined to the remaining six pages.

The ministry did not provide unredacted copies of those six pages to the adjudicator. It relied instead on submissions and affidavit evidence describing the records as communications seeking or providing legal advice, or as related communications within the solicitor-client relationship.

Under section 71 of the Act, the ministry bore the burden of proving the applicant had no right of access. Swanek assessed whether the evidence established the privilege exception on a balance of probabilities.

Assertions without a factual foundation

The first affidavit came from a senior freedom-of-information adviser. It described five pages as email correspondence from corporate counsel providing legal advice and one page as correspondence requesting it. The affidavit said the communications involved no external parties and were intended to remain confidential.

Swanek accepted that the adviser believed the records were privileged, but found that the affidavit did not explain the basis for that belief. In July, she asked for additional evidence about the relationship between the people involved and the circumstances in which advice had been sought or given, without requiring disclosure of the legal advice itself.

That context mattered because government and in-house lawyers may provide policy or business advice as well as legal advice. Identifying a lawyer’s involvement does not, by itself, explain the nature of a particular communication.

The ministry responded that its evidence already established the relevant solicitor-client relationship. It said further details about the participants, their roles or the subject of the advice could reveal the communications’ nature and risk waiving privilege. It was not prepared to waive that protection.

A second affidavit, from an assistant deputy minister who was also the delegated head for access requests, did not resolve the problem. Swanek found it substantially repeated the first affidavit, adding that the employees who sought advice were authorized to do so, but still supplying no factual basis for the conclusion that the records involved legal advice.

Neither affiant claimed specific knowledge of the records or knowledge of the program area that created or maintained them. Nor did either explain how they distinguished legal advice from policy or business advice. The adjudicator’s concern was the missing foundation for their conclusions, not simply the existence or number of affidavits.

The surrounding records did not fill that gap. Swanek had reviewed the 437 pages released during settlement and described them as numerical data without narrative or explanatory text. She found nothing in them establishing a legal issue that could provide context for the privilege claim, and did not know how the data related to the six withheld pages.

Privilege can extend beyond direct legal advice

The order did not narrow solicitor-client privilege to documents containing an express legal opinion. Swanek recognized that confidential communications forming the necessary exchange of information for legal advice can also be protected, as can internal discussions of advice received.

But the affidavits’ reference to records reflecting internal discussions about legal advice was not sufficiently clear. Swanek distinguished information that reveals such discussions from a document that merely reflects their influence. A public statement prepared after legal advice, for example, does not become privileged simply for that reason.

Reviewing Alberta and British Columbia authorities, Swanek emphasized that the detail needed to support a claim depends on the circumstances and the particular records. Public bodies must avoid revealing the very information they seek to protect, but they must still provide enough evidence to substantiate the exception. The ruling did not impose a universal affidavit template or require the legal advice itself to be disclosed as proof of privilege.

On this record, accepting the claim solely because the affiants recited the test and swore they believed it was met would substitute their assessment for the adjudicator’s independent review. Swanek therefore declined to uphold the ministry’s reliance on section 27(1)(a).

Disclosure ordered, not another round of evidence

Swanek considered an approach used in earlier orders that allowed a public body to provide better submissions after failing to establish its claim. She declined to offer another opportunity here because the ministry had expressly said it could provide no further supporting information.

With no other access exception applied to the six pages, she ordered their disclosure to the applicant under section 72. The order leaves the parties able to pursue the next procedural step, including court review; it does not establish that a review application was filed or that the remaining records have been released.