Practical Analysis

Calling a Record Privileged Doesn't End the Duty to Account for It

An institution may have a legitimate reason to protect privileged legal advice. It still has to know what records it has and which legal basis actually justifies withholding them. In Report A 2026 031,

An institution may have a legitimate reason to protect privileged legal advice. It still has to know what records it has and which legal basis actually justifies withholding them. In Report A 2026 031, Newfoundland and Labrador's Information and Privacy Commissioner reviewed the College of the North Atlantic's response to requests for internal records and aggregate legal fees concerning court matters. The college withheld responsive records under the legal advice exception and declined to provide records to the Commissioner's office even after a summons.

The Commissioner reported that the college had not conducted a reasonable search and had not established its claimed solicitor client or litigation privilege. Release of the responsive records was recommended. That is the Commissioner's reported conclusion, not a court judgment abolishing legal privilege. The distinction matters because privilege protects particular confidential legal communications and litigation preparation where the legal tests are satisfied. It shouldn't become a general description attached to everything about a dispute.

Public institutions and their counsel need a disciplined process for identifying responsive records, assessing confidentiality and preserving the basis for each asserted exception. A document containing legal advice may properly remain protected, while a standalone fact or aggregate amount raises a different question. Records systems should let an institution separate those issues before it answers an access request, rather than trying to reconstruct the file after a complaint reaches the regulator.

Businesses facing disclosure or litigation can draw a narrower lesson. Define the record sought, identify who holds it, distinguish the question of existence from the claim of privilege and be ready to explain the legal basis for nonproduction. Different statutes and court procedures govern different contexts, and this report should not be treated as a universal discovery ruling.

Official source Newfoundland and Labrador OIPC, Report A 2026 031.

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Calling a Record Privileged Doesn't End the Duty to Account for It