Solicitor-client privilege (April 8, 2007)

An Open Letter to Capital Health

To Chris Power,

CEO,

Capital District Health Authority

Dear Ms Power:

As you may be aware, the Capital District Health Authority turned down my recent freedom-of-information request for the names of all private law firms providing advice to the authority in the Gabrielle Horne case “and the amounts billed by each.”

I’m sure I don’t need to remind you that Dr. Horne — in the feel-good language the CDHA favoured back in the day when Dr. Horne was still in favour — is a “globally pioneering” heart researcher whose multi-million dollar research program was effectively shut down in October 2002. That was when CDHA officials varied her hospital privileges on an “emergency” basis, ostensibly to protect patient safety. Four years — and many legal delays, and even more legal bills later — the CDHA’s board finally acknowledged last fall it had no legitimate cause to vary her privileges. Horne — as you also can’t help but know — is currently suing the CDHA over all this.

Given that the health authority is a public — and supposedly publicly accountable — body providing health care services to 40 per cent of the province’s population, I thought it would be useful to look at whether our scarce health care tax dollars were well spent fighting the Horne case.

The first step, of course, was to find out just how much the authority spent.

Which is where I ran into the first roadblock.

CDHA’s official rationale for refusing my request is that the information is protected by solicitor-client privilege. Under Section 16 of Nova Scotia’s Freedom of Information and Protection of Privacy Act, “the head of a public body” (which is to say you) “may

” (the italics are mine; we’ll come back to “may” later) “refuse to disclose to an applicant information that is subject to solicitor-client privilege.”

The courts have ruled that “all communications made within the framework of the solicitor-client relationship” are confidential. I don’t quibble with the intent of that. Solicitor-client privilege is designed to protect clients —note clients, not lawyers and not publicly accountable institutions — from being forced to disclose confidential information they tell their lawyer or legal advice their lawyer gives them.

Lawyers, of course, being lawyers, have done their best to stretch this legitimate privilege into an unfettered right to conceal everything and anything — from actual legal advice, to stock tips, to… well, the legal bills incurred by otherwise accountable public agencies such as yours.

I’m confident the courts would ultimately rule — as they have in other cases — that un-itemized legal bills incurred by a public body don’t by themselves constitute “a communication between solicitor and client given in confidence.”

But taking the CDHA to court will cost me more money than I have — and the taxpayers, through the CDHA, more than we’ve already spent on this fiasco.

I’m guessing you didn’t spend a lot of time — perhaps you weren’t even consulted — considering whether the Horne case is truly a legitimate exercise of the solicitor-client privilege claim. But I’d urge you to do so now. Because the reality is that you are the client. You can choose to waive this privilege and release the information I asked for — at no additional legal cost to the taxpayer.

I’d ask you to ask yourself — and not your lawyers — precisely what it is about the total dollar amount of these private legal bills that make them a state secret. The answer is common sense.

Do you honestly believe knowing how much you spent on private lawyers — no one is asking what you told them, or what they advised you — will give Dr. Horne’s lawyers some nefarious advantage in her upcoming court case?

Or is invoking this privilege more about protecting the Capital District Health Authority from legitimate public scrutiny — and perhaps embarrassment — over how it has spent public money?

In a recent speech to members of Halifax Regional Council, you made the point that CDHA spends each day “about one-and-a-half-million dollars on behalf of taxpayers

.” That’s a lot of money. Public money. Spent, as you say, on behalf of taxpayers. Which means we should have the right to judge for ourselves whether you’re spending it wisely.

That’s why I’m asking you to waive this spurious claim of solicitor-client privilege and release the legitimate public information I’ve asked for.

I look forward to a public response to this public request.

Sincerely,

Stephen Kimber

Stephen Kimber, the Rogers Communications Chair in Journalism at the University of King’s College, is an award-winning author of five nonfiction books and a novel, Reparations.