The Issue

Are personal communications sent and received by municipal employees on a municipal email system subject to disclosure under the Municipal Freedom of Information and Protection of Privacy Act?

Answer

No. Personal emails, which are unrelated to the municipality’s business, are not subject to disclosure.

In Ottawa (City) v. Ontario (Information & Privacy Commissioner) (December 13, 2010), Doc. 201/10, the Ontario Divisional Court was asked to determine whether a government employee’s personal emails, which were sent and received on the employee’s workplace email address, were subject to disclosure under the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”).

The City of Ottawa permitted incidental personal use of its email system by its employees, subject to certain conditions. The City expressly retained the right to monitor its IT systems, including email, at any time and without notice “for security breaches and non-compliance with City policies and procedures, as well as for network management reasons.” The City’s policy also specified that electronic information and IT assets constituted municipal property. City employees were not required to retain personal emails sent and received by them and could delete them at any time.

The City Solicitor volunteered on the Board of Directors of the Children’s Aid Society (“CAS”). He sent and received emails relating to his CAS volunteer work from his workplace email system. He segregated such emails in a separate file folder, but they were stored on the City’s email server. A request was made pursuant to MFIPPA seeking disclosure by the City of all “emails, letters and faxes” sent or received by the City Solicitor to and from anyone at CAS.

The City took the position that the communications did not relate to the City Solicitor’s duties as City Solicitor, but rather to his role with CAS and that the documents were not within the City’s custody or control. The City indicated that it would not process the request for disclosure as the documents fell outside the scope of MFIPPA.

The requester appealed the decision to the Information & Privacy Commissioner (“IPC/Ont”). A hearing took place before an adjudicator who determined that the emails were subject to disclosure under s. 4(1) of MFIPPA which provides:

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

  1. the record or the part of the record falls within one of the exemptions under sections 6 to 15; or
  2. the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious.

The City brought a judicial review application challenging the decision. The City’s application was allowed and the decision of the IPC/Ont was set aside.

The Divisional Court determined that the IPC/Ont had erred in law in concluding that the personal emails of the City’s employees were within the “custody or control” of the City. Although the IPC/Ont recognized that the correct legal approach to determining the meaning of “custody or control” must be a purposive one, this approach was not actually applied by the IPC/Ont. The Divisional Court noted that the overarching purpose of access to information legislation is to “facilitate democracy.” The Divisional Court individually reviewed the IPC/Ont’s analysis based on the criteria set out in Order 120 and often reached different conclusions, holding that the private communications of municipal employees are unrelated to the business of the municipality and do not relate to a citizen’s right to fully participate in democracy. Private or personal correspondence fell outside the context of government business and was never intended to be used by the City for any governmental purpose. While the City had possession of such records, they were completely unrelated to the City’s business.

Furthermore, the City only had an incidental right to the emails, which could be destroyed by their creators (i.e. the City’s employees) at any time. While the City had the authority to regulate the use of the email server and the nature of the emails sent by employees, it had no authority over the retention and use of individual personal emails.

The Divisional Court also concluded that there was no basis or rationale for making a distinction between electronic/digital and paper documents with respect to the issue of custody. The Divisional Court’s decision is certainly correct. It appropriately applies the intent and purpose of MFIPPA and, as demonstrated by the Court, is in accordance with multiple other rulings and decisions. The decision also provides a noteworthy limitation on the scope of “custody” or “control” under s. 4 of MFIPPA.