Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
Closed Expands Expression
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The Ontario Superior Court of Justice in Canada held that the freedom of information law does not require disclosure to the public of personal emails, unrelated to work, even though sent and received by government employees on their workplace email accounts. The Court focused on the purpose of access to information legislation as being to facilitate democracy, and noted that disclosure of information contained in unofficial communications is not necessary to “support the democratic purpose” (para. 32).
This case analysis was contributed by Right2Info.org.
Rick O’Connor was a city solicitor at the City of Ottawa, but also volunteered at the Children’s Aid Society (CAS) and used his official City email address for CAS business. In October 2007, John Dunn, a Canadian citizen, requested from the City of Ottawa the disclosure under the Municipal Freedom and Protection of Privacy Act (MFIPPA) of “all ’emails, letters and faxes’ sent or received by Mr. O’Connor to and from anyone at CAS since February, 2007” (para. 8).
The City clerk denied the request, stating that the communications did not relate to O’Connor’s duties as a City employee (para. 9). Dunn appealed to the Information and Privacy Commissioner (IPC) to compel the disclosure of the documents. The Arbitrator assigned to the case within the IPC noted that “a purposive approach must be taken to ‘custody or control’ questions” under s. 4(1) of the Act” (para. 12), and held that any emails on the City’s system were within the control of the City (para. 15). Accordingly, the IPC ordered that the Dunn be given access to the requested documents.
The City appealed the decision to the Superior Court of Justice.
The central issue before the Superior Court of Justice was whether the MFIPPA was applicable to the documents requested by Dunn (para. 20). The Court noted that the case “turns on the interpretation of s. 4(1)” of the MFIPPA and the interpretation of what “control” and “custody” of documents entail (para. 3). Section 4(1) states that “every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless, (a) the record or the part of the record falls within one of the exemptions under sections 6 to 15; or (b) the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious”.
The Court examined the purpose of the MFIPPA, and criticized the manner in which the Arbitrator had applied a “purposive interpretation”. The Court described the Arbitrator as committing a “fundamental legal error” as she “gave no consideration to the intent and purpose of the legislation as part of her analysis in determining what “custody or control” means in relation to the subject documents” (para. 21).
With reference to section 1 of the MFIPPA, the Court stated that the purpose of the legislation is to “provide a right of access to information under the control of institutions” and that this is in accordance with the principles that “information should be available to the public” and that any exemptions to this principle should be “limited and specific” (para. 23). The Court referred to the 1980 Williams Commission Report which had identified accountability, public participation, fairness in decision making and personal privacy as rationales for public sector access to information legislation (para. 25).
With reference to the Canadian case of Dagg v. Canada (Minister of Finance) the Court acknowledged that “the ‘overarching purpose’ of access to information is to ‘facilitate democracy’,” and that it assists in making government “more effective, responsive and accountable” (para. 27).
The Court held that “interpreting the term ‘custody or control’ as including private communications of employees unrelated to government business” would not do anything to advance the legislation’s purpose, and that “interpreting the language of the Act as not applying to the private communications of employees” would not interfere with the right to participate in democracy (para. 28). The Court stated that the Arbitrator had not considered whether her interpretation of “custody or control” would “enhance participation in the democratic process (para. 29).
The Court applied a ten-part test created by Commissioner Sydney Linden to determine whether the requirements for custody or control had been met. In particular, it found that the email communications between O’Connor and CAS had “no connection whatsoever” to the business affairs of the City, and disclosure would violate O’Connor’s privacy rights (para. 30). Accordingly, the Court held that the documents sought by Dunn “cannot be said to be in the control of the City” (para. 31). The Court noted that CAS “is not an agency subject to freedom of information legislation” and that O’Connor “in his personal capacity, is also not subject to having his personal documents seized and passed over to any member of the public who requests them” (para. 35). There was therefore no right of access to information of the documents.
The Court repeatedly emphasized that the purpose of the legislation was to facilitate democracy, and that determinations of whether documents should be disclosed must be guided by the question of whether such disclosure “would support the democratic purpose” (para. 32).
The Court also analyzed whether there should be a distinction drawn between personal paper documents and personal emails. The Court noted that an employee of an entity “governed by public freedom of information legislation” would, ordinarily, have paper documents of a personal nature stored in their office and that these documents would not be subject to access to information requests (para. 37). It concluded that there was no rational basis for treating personal electronic information any differently (para. 38). In addition, and in contrast to the Arbitrator’s findings, the Court noted that the fact that a company may implement a security policy that requires it to search paper and electronic documents stored on the premises or on the IT services does not imply that the company has control over those documents (para. 42).
The Court referred to the Canadian cases of David v. Ontario (Information and Privacy Commissioner), Canada (Information Commissioner) v. Canada (Minister of National Defence), Walmsley v. Ontario (Attorney General) and various other cases decided by the IPC and held that its decision in the present case was consistent with the findings in all of those cases (para. 45).
The Court also noted that even if it applied a reasonableness test – whether it was reasonable for private emails to be subject to access from private individuals – it would not be reasonable to allow Dunn’s access to O’Connor’s CAS emails (para. 53).
The Court therefore overturned the Arbitrator’s finding, and confirmed the City of Ottawa’s decision refusing Dunn access to the requested documents (para. 54).
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