Electronic Records and Freedom of Information

In a decision released earlier this month a strong panel of the Ontario Court of Appeal took a look at one aspect of the issue of what constitutes a “record,” in this case for the purposes of applying the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56. Toronto Police Services Board v. (Ontario) Information and Privacy Commissioner 2009 ONCA 20 entailed a request by a journalist for information stored in Toronto police databases in a format different from the one used by the police. The data could have been produced in the requested format, but it would have required the creation of an “algorithm” to accomplish the desired result.

The pertinent section of the legislation gives a broad definition of “record”:

2. (1) In this Act,

“record” means any record of information however recorded, whether in printed form, on film, by electronic means or otherwise, and includes,

(a) correspondence, a memorandum, a book, a plan, a map, a drawing, a diagram, a pictorial or graphic work, a photograph, a film, a microfilm, a sound recording, a videotape, a machine readable record, any other documentary material, regardless of physical form or characteristics, and any copy thereof, and

(b) subject to the regulations, any record that is capable of being produced from a machine readable record under the control of an institution by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution; (“document”)

The initial refusal was overturned by an adjudicator, and the administrative law issue, of course, was whether this decision was unreasonable. The Divisional Court so found, and the Court of Appeal reversed that decision. In the course of its judgment, the court took careful note of the public’s right to know and the fact that technological change continues and ought not to nullify this right.

It is indeed an interesting question as to when disparate or disassociated facts in a database should be considered a record for this and a host of other legislative purposes. In one sense, there is no humanly intelligible record — merely a collection of facts — but in another sense, there exist all possible interrelations among the data, which is to say, potentially, a great many records. Under this legislation, at least, the record keepers can’t “suppress” a record if it can be produced with available expertise (paid for by the requester, typically). But this result is in part a function of particular wording that isn’t generally present in other legislation dealing with “records” and the obligation to produce them.

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Comments

  1. This seems to me a pretty radical decision, though the edge of the wedge this time may be thin. From saying ‘you have to produce any record you have’ (subject to the various exceptions), it says ‘you have to create a record of the kind the requester wants, if you have the data that could be assembled into that record.’

    In other words, a government institution (which includes universities and hospitals these days, does it not, at least in Ontario) has to take the information it has collected and organized for its own purposes and reorganize it to suit the purposes of the requester.

    The Act says ‘by software usually used by the institution’. The Court of Appeal says ‘well, you wouldn’t have much trouble developing the software, so that’s the same thing.’

    Is there a point where this is not a reasonable request to make of the government, even if it can impose a fee for developing the software to make these searches and produce these records?