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The freedom of information law does not require disclosure to the public of personal emails, unrelated to work, even though sent and received by government employees on their workplace email accounts.
In October 2007, an individual named Dunn requested disclosure by the City of Ottawa of all emails, letters and faxes sent or received by Rick O’Connor, a City Solicitor, to the Children’s Aid Society (CAS), a third-party volunteer organization since February 2007, under the Municipal Freedom & Protection of Privacy Act (MFIPPA) (paras. 3, 8). The City clerk denied the request, stating that the communications did not relate to O’Connor’s duties as a City employee (para. 9). Dunn appealed to the Information and Privacy Commissioner to compel the release of six pages of withheld documents having nothing to do with the business of the City of Ottawa (para. 10). The Arbitrator assigned the case adopted the purposive approach of the law, but found that the emails were within the custody and/or control of the City because of its physical possession of the emails, and its authority to regulate and monitor its email system (paras. 12, 15). The City appealed the decision.
The Superior Court of Justice ruled that the emails were outside the scope of the MFIPPA (para. 4). In so ruling, the Court criticized the Arbitrator’s analysis, noting that the purposive approach to legislation requires an analysis of the reasons for that legislation, which in this case includes accountability, public participation, fairness and personal privacy (paras. 21-23, 25). The “overarching purpose” of access to information is to “facilitate democracy,” and the Court applied former Information Commissioner Sidney Linden’s 10-item test to determine whether the requirements of custody or control of the emails were met (paras. 27, 30). In particular, the email communications between O’Connor and CAS had “no connection whatsoever” to the business affairs of the City, and disclosure would violate O’Connor’s privacy rights (para. 35). As an example, the Court noted that it could hardly distinguish between “personal communications and documents of employees that are stored in paper form in their government-owned filing cabinets and desks and those that are stored in electronic form in their government-owned computer systems” (para. 35).
Judgment of the Court.
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