A lawyer with the City of Ottawa was active in community activities, and with permission of his employer spent some time on those activities at the office. His email to and from one of the charities became the subject of an access to information request under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA). He resisted disclosure of the emails on the ground that they had nothing to do with government business, the disclosure of which was the purpose of the Act.
The Information and Privacy Commissioner held in April 2009 that the emails must be disclosed: Order MO-2408 [PDF] dated April 9, 2009.
The Divisional Court has now reversed that decision, holding that MFIPPA did not extend to personal communications just because they were stored on a government computer. City of Ottawa v. Ontario, 2010 ONSC 6835. The court held that the documents were not in the custody or control of the City, even though they were on its computer. Further, subjecting personal documents (electronic or paper-based) to access requests would hurt the privacy rights of the employees.
This seems right to me. Otherwise community organizations and charities would not want public-sector directors or even volunteers if their private communications were subject to disclosure by what I think is a collateral attack through access to public information laws.
Do you agree? What’s the other side?
If you wanted it to be private, ie not subject to access and privacy legislation, you should have sent it from your gmail address.
I think this ruling makes perfect sense when you look at the converse. What about a work email sent from a gmail address? That should not be enough to circumvent the access legislation [although clearly there will be roadblocks, but it shouldn't forestall it, at least]. The subject-matter of the email is what brings it under the purpose of access legislation, not the location.
The test for access in the Ontario legislation (not different in purpose from most equivalent laws elsewhere) is that the record sought must be in the custody or control of the body subject to the legislation. So the question in the City of Ottawa case was whether the personal records of the City Solicitor were in the custody or control of the City – being on its computer server.
Not all institutional employers allow employees to use webmail services like hotmail or gmail – the govt of Ontario did not until relatively recently – for security reasons.
In any event, a number of senior employees of bodies subject to access to information laws no doubt do volunteer work for charities not subject to such laws, and have records of those charities in their offices (on paper or electronically). It is not realistic to expect all the charitable work to be done after work and from home. So long as the employers do not object, this seems to be acceptable as a use of the employees' time – no doubt whatever they make up the time after hours, on weekends etc.
Overturning this decision could deal a serious blow to having such people engaged in senior roles in charities.
The IPC has said it has appealed the decision to the Ontario Court of Appeal. SO the question is not settled yet.