[2010] O.J. No. 5502

2010 ONSC 6835

Ontario Superior Court of Justice

J.R.R. Jennings, A.M. Molloy and P.A. Daley JJ.

December 13, 2010

A City solicitor used his work email to send and receive messages pertaining to his volunteer position with the Children’s Aid Society ("Society"). The solicitor volunteered for the Society and this position had nothing to do with his work as a City solicitor. On October 23, 2007, the respondent, John Dunn, made a request under the Municipal Protection of Privacy Act seeking disclosure by the City of Ottawa of all emails, letters and faxes sent or received by the City solicitor to and from anyone at the Society since February 2007.

The Information and Privacy Commissioner held that the personal emails sent by the City employee were subject to freedom of information legislation and accordingly ordered the City solicitor to disclose the requested information to the respondent, as a member of the public. The Commissioner found it persuasive that the City had physical possession of the emails on its server, had authority to regulate the email system, and had control of all emails on the system.

The City applied for judicial review of the Commissioner's decision. The application was allowed and the decision denying the respondent’s request was confirmed. The court held that the Commissioner failed to consider whether disclosure of the information by the City employee, that was unrelated to City business, would advance the purpose of freedom of information legislation. The court concluded that the words “custody and control” did not extend to the circumstances of the present case. Further, the seizure by the City of such communications for the purpose of disclosing them to the public ran contrary to another goal of the same legislation - the protection of privacy.