[author: Tim Banks]
When a government employee uses workplace email to send and receive personal email, are those emails subject to disclosure under access to information laws?
What about when a government employee uses a personal email account to send and receive emails relating to government business?
Two recent cases – one in Alberta and one in Ontario, answer the first question in the negative.
A recent case in England answers the second question in the affirmative – and a similar result might be expected in Canada based on recent Supreme Court of Canada jurisprudence.
1. Personal email may not be in the custody or control of the public authority
In City of Ottawa v. Ontario, the information requester sought production of communications between an employee of the City and an organization where the employee volunteered. Subsection 4(1) of the Municipal Freedom and Protection of Privacy Act (“MFIPPA”) provides that a requester is entitled to access to records if it is in the custody or under the control of the City, unless an exemption applies or the request for access is frivolous or vexatious.
The employee used his work email address to receive emails related to his volunteer work. This was permitted by the City. However, the City reserved the right to monitor email without notice. All email was property of the City, but employees were not required to retain personal email under any record-keeping policy.
Initially, the adjudicator concluded that the email was in the custody or control of the City. After all, the City had physical possession of the emails on its server and had the authority to regulate them. On judicial review, however, the Ontario Divisional Court concluded that the documents were not in the custody or control of the City. In order to be in the custody or control of the City, two criteria must be satisfied. The City must be entitled to obtain a copy of the emails and the emails had to concern a City matter. However, if personal email was sufficiently intermingled with email relating to City matters, then it would have to be produced.
In University of Alberta v. Alberta (Information and Privacy Commissioner), the requester sought access to emails between an academic at the University and a government grant agency relating to the review of a grant application. Like the Ontario case, the adjudicator had taken a straight-forward approach: the emails passed through the University’s servers and the University had some right to deal with the emails; therefore, the University must have had custody or control.
The Alberta Court of Queen’s Bench rejected the adjudicator’s approach and adopted the Ontario Divisional Court’s interpretation of the meaning of “custody or control”. Analogizing the emails to the situation of paper records, the court held that employees may keep private items at an employer’s place of work but that does not bring them within the meaning of custody or control for the purpose of access to information legislation. The emails in this case were only remotely related to the University’s business and need not be disclosed.
2. Personal email may be producible under access to information requests if related to government business
In order to understand the next two cases, a bit of legislative background is required. The scope of the Freedom of Information Act 2000 (UK) is somewhat different from federal Canadian access to information legislation. In the UK, it seems that there is no specific exemption from production for records in a Minister’s Office. Under the federal Access to Information Act (Canada), the Minister’s Office is not a government institution that is subject to the Act.
In a recent UK decision of the Information Commissioner’s Office (FS50422276), the issue was whether email sent from the Secretary of Education’s personal email address to two special advisors were subject to production under the UK Act. One of the emails was characterized by the Information Commissioner’s Office as “essentially an action plan and a list of key events or issues in the work of the department for the month of January 2011.” This characterization was “supported by the fact that much of what was discussed in the email subsequently resulted in official departmental announcements.”
The Information Commissioner’s Office concluded the fact that the email was sent from the Secretary of Education’s personal email address was not determinative of the requirement to produce the email (although this practice was frowned upon for record-keeping purposes). The relevant question was whether the majority of the email had to do with the business of the department. In analysing this question, it would be relevant to consider who the sender and recipients were and their roles, if any, within the civil service or the party machine, as well as the substance of the email and how it was used.
Last year, the Supreme Court of Canada considered whether records held by Minister’s Offices were required to be disclosed under the federal Access to Information Act. The fact that a Minister’s Office was not a governmental institution for the purposes of the federal Access to Information Act did preclude documents held there from being in the “control” of the department and, therefore, producible. The court held that consideration had to be given as to whether the record related to a departmental matter and, if so, whether there are factors that suggest that the government institution could reasonably expect to obtain a copy of the record. The court held that some of the factors to consider include the substance of the record, the circumstances in which it was created and the legal relationship between the government institution and the record holder.