Case Report – Strong deference to search process demonstrated in “e-FOI” case

On March 30th, the Information and Privacy Commissioner/Ontario upheld the reasonableness of an institution’s search for responsive e-mails. The IPC held that searching for e-mails held by a key custodian alone was reasonable and sufficient: “…it is not unreasonable that the University’s search for records, both in electronic and hardcopy format, would begin and end in the Office of the Dean, for which responsive records were either sent and received.” It made this finding despite a request to “retrieve and search for any emails which may have been deleted” and and a finding based on the institution’s backup e-mail backup policy that deleted e-mails would not likely exist.

As with this recent Alberta Court of Queen’s bench decision, this order demonstrates a significant degree of deference to a process chosen to search for electronic records. These two decisions and others could be evidence of a general approach, though I’m yet to read any dicta in Canadian FOI jurisprudence that expressly addresses the need to maintain balance in light of the inflationary potential associated with the search and retrieval of electronic records.

Order PO-2880, 2010 CanLII 15935 (ON I.P.C.).

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