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In December 2010, the Ontario Superior Court of Justice, Divisional Court, issued its Reason for Decision in the case of City of Ottawa v. Ontario (Information and Privacy Commissioner) and John Dunn (City of Ottawa v. Ontario, 2010 ONSC 6835). This case dealt with an access request made to the City of Ottawa under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) by Dunn, requesting all e-mails sent or received by a City of Ottawa employee to and from anyone at a volunteer organization (the city employee used his work e-mail to send and receive e-mails relating to volunteer work not connected to his work for the city).
Use of personal e-mail
In its policies, the city permitted incidental personal use of its e-mail system by employees, subject to certain conditions (i.e the city retained the right to monitor its IT systems, including e-mail, at any time and without notice, and electronic information and IT assets remained the property of the city). Employees were not required to retain personal e-mails sent and received by them and could delete them whenever they saw fit.
City’s response and complaint to the information and privacy commissioner
The city responded to the access request by informing the applicant that the requested communications did not relate to the employee's work duties, but rather his volunteer work, and as such they were not within the city's custody or control and fell outside the scope of MFIPPA. The applicant appealed to the information and privacy commissioner, who found that personal e-mails sent by government employees are in the custody and control of the government employer; therefore, the city was ordered to a decision regarding whether the e-mails should be provided to the individual. The city sought a judicial review of the commissioner’s decision.
The court’s ruling
The court found that the commissioner, when determining the meaning of “custody or control,” had not considered the intent and purpose of the legislation, which includes that the right of access to documents under the control of institutions is in accordance with the principle of making information available to the public. Some factors the court considered in determining if the records were within the institution’s custody and control include:
- whether the record was created by an office or employee of the institution
o In this case, most were created by someone at the volunteer agency.
- what use the creator of the record intended to make of the record
o They were never intended to be used by the city or for any municipal-related purpose.
- whether the institution had possession of the record
o In this case, the city’s possession was by happenstance, as the employee had chosen to use the city’s e-mail server for convenience.
- whether the content of the records related to the institution’s mandate or functions
o In this case, they clearly had no bearing on the processes of the city government and could not provide any information to citizens about the functioning of the municipal government.
It was determined that personal e-mails sent and received by the government employee from his workplace e-mail address did not fall within the scope of MFIPPA. The court applied a two-part test for determining whether a document was within the control of the government institution: (1) whether the contents of the document related to a departmental matter, and (2) whether the relevant government institution could reasonably expect to obtain a copy of the document upon request. By applying the two-part test in this case, the e-mails would not be in control of the city—the contents did not relate to a city matter and the city could not expect to be given such documents merely by requesting them since they did not fall within the scope of employment.
The court set aside the commissioner’s decision, stating that it is not reasonable for e-mails belonging to a private individual to be subject to access by members of the public merely because they are sent or received on a government owned e-mail server (the implications for the thousands of government employees would be staggering).
This case potentially raises implications for private-sector businesses involved in litigation or on the receiving end of a request for documents, as personal e-mail communications sent or received by employees may be outside the custody or control of the business in circumstances outlined above.