Case Report – More e-mail skirmishes in Canadian FOI law

On October 16th, the Alberta Court of Queen’s bench partially affirmed an Alberta OIPC order that dealt with access to e-mails. It is notable for its consideration of e-mails that were alleged to be “personal” and therefore not accessible to the public and its consideration of the process for searching and retrieving e-mails.

There have been a number of recent Ontario cases in which public institutions have argued that “personal” e-mails are not subject to public access because they are not under institutional “custody or control.” In this case, the Edmonton Police Service searched and retrieved three e-mails but made redactions on the basis that full disclosure would constitute an “unjustified invasion of privacy.” In support of this position, it argued that the e-mails were communicated by members of the Edmonton Police Association in the course of association business and with a reasonable expectation of privacy. The Court affirmed the Commissioner’s finding that the e-mails were, in fact, not sent in the course of association business. Although this finding was determinative, it also made the following comment about the Service’s computer use policy:

The EPS also submitted that the EPS Policy 5-E-7 – Electronic Communications does not “allow personal use of its email system” as stated by the Commissioner. While this may be true, the Policy does warn users of the network that communications may be monitored and accessed by system administrators, and there was nothing improper in the Commissioner’s reference to the Policy in considering whether the authors of the Emails would have had an expectation of confidentiality.

The Court also affirmed a finding that the Service did not conduct a reasonable search and set aside an order to restore and search backup tapes.

On the search itself, the requester had argued that the Service ought to have conducted an “electronic search” for responsive records instead of the “field filtering” process it actually employed – i.e. one in which custodians were asked to search, retrieve and deliver up records. (See here for an Ontario case in which the same argument was made.) The OPIC held that field filtering is reasonable, but that “the head, or the head’s delegate, should take a supervisory role and be aware of exactly what steps have been taken to locate record, as the head is accountable for the quality of the search under section 10.” The Court agreed with this, and affirmed the OIPC”s finding that the Service did not engage in proper supervision of its field search.

Finally, the Court held the OIPC erred by ordering the Service to restore and search backup tapes without considering the restriction on the obligation to create records that require an institution to use more than its normal “computer hardware and software and technical expertise” or cause “unreasonable interference” with its operation. The Court seemed to assume that restoring compressed e-mails from a backup tape involves “creating” a record. While taking no position on the issue, I note that this is a point that may be disputed.

Hat tip to Linda MacKay-Panos, who summarizes the decision here.

Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2009 ABQB 593.