In Order MO-3031, regarding the York Region District School Board, the Information and Privacy Commissioner of Ontario (IPC) ruled that certain records of School Board Trustees were not in the custody or under the control of the School Board and therefore were not governed by access to information provisions of the  Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).

Section 4(1) of MFIPPA 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…” If the records at issue are not in the custody or under the control of the school board, then the right of access cannot apply.

This decision, made on April 7, 2014, is the first time the IPC has ruled on whether certain records of School Board Trustees were accessible under MFIPPA. The IPC applied its past decisions regarding elected municipal Councillors to elected school board Trustees and reasoned that, with some exceptions, such records may not be accessed under MFIPPA.

In this case, the records involved communications between trustees regarding the selection of a new trustee to replace a departing one. The IPC found that these communications were not made by the trustees in a context where they were in effect acting as an officer or employee of the school board or discharging a special duty assigned to them by the school board. The IPC noted that the records of elected officials would not generally, subject to that exception, be governed by the access to information provisions of MFIPPA.

However, the IPC also noted that records of Trustees could become covered by the access to information provisions of MFIPPA if they are held by the school board and relate to a school board matter in circumstances where the record could be obtained by the school board on request. In this respect, the IPC applied the Supreme Court of Canada’sdecision in Canada (Information Commissioner) v. Canada (Minister of National Defence)2011 SCC 25, where this test was articulated in the federal government context. The Court had distinguished between the records of elected officials and those of the government department.

The IPC found that these particular communications between Trustees were not held by the school board and were not in respect of a school board matter. The IPC accepted the Board’s characterization of the email communications as “political discussions” and noted as well that these records were not integrated with the Board’s business records. In this latter respect, the IPC applied the Divisional Court’s ruling in City of Ottawa v. Ontario (Information and Privacy Commissioner), 2010 ONSC 6835, that the use of the City’s email system or server to store communications that are not related to the business of the institution cannot result in the application of the right of access.  

This decision is significant in that it is the first time the IPC has dealt with records of school board trustees in this manner. Ultimately, when a request is made for such records the content of the records and the context in which they were created will have to be assessed in order to determine whether the right of access under MFIPPA applies.