E-mail access denial challenged by IPC

For the London Free Press - January 24, 2011 Read this on Canoe

When a government employee uses his or her workplace e-mail address to send and receive personal e-mails unrelated to their work, are those e-mails subject to disclosure to members of the public who request them under freedom of information legislation?

Despite that these e-mails are generated on government computers, stored on government servers and often composed on government time, a Ontario court decision (the City of Ottawa versus the Information and Privacy Commissioner and John Dunn) held that such e-mails are not subject to freedom of information legislation.

Like many employers, the City of Ottawa permits incidental personal use of its e-mail system by its employees.

In 2007, Rick O'Connor worked for the City of Ottawa as in house counsel. He also volunteered on the board of directors of the Children's Aid Society (CAS).

O'Connor took advantage of the City of Ottawa's policy and often used his work e-mail to send and receive CAS related correspondence. These were saved in a separate personal folder stored on the City's e-mail server.

John Dunn made a request under the Municipal Freedom of Information & Protection of Privacy Act (the "Act") for disclosure by the city of all correspondence sent or received by Mr. O'Connor to and from anyone at CAS. The city refused, arguing the emails were not within its custody or control.

Mr. Dunn appealed the City's decision to the Information and Privacy Commissioner (IPC).

Although the e-mails in question all pertained to CAS matters and did not relate to City of Ottawa business, the IPC arbitrator held that the communications were within the custody or control of the City and subject to the Act.

This decision did not require the City of Ottawa to disclose Mr. O'Connor's personal e-mails per se, but did require the City to process the freedom of information request.

Under the Act, disclosure requests may be refused based on a number of exemptions, such as personal privacy. The IPC ruling essentially would have required the City to go through each e-mail and exempt them one by one.

With the thousands of civil servants who work in government offices, this decision had the potential to divert a great deal of public resources into the processing of access requests that had little to do with government transparency.

The City of Ottawa successfully appealed the IPC's decision to the Ontario Superior Court. The Court held providing access to communications between the CAS, an agency not subject to the Act, and Mr. O'Connor, an individual acting in his own personal capacity, would not advance public participation in the democratic process.

The Court also said the fact Mr. O'Connor's e-mails were segregated in a separate folder was not determinative. Private e-mails comingled with work e-mails will most likely not be subject to the Act either. The IPC has appealed the decision .