On December 13th, the Ontario Superior Court of Justice – Divisional Court held that employee personal e-mails stored on government e-mail servers are not subject to provincial FOI legislation.
The Court read “custody or control” purposely and narrowly. It held that providing access to personal e-mails does not advance the purpose of FOI legislation – advancing public participation in the democratic process.
The Court’s reasoning is very broad. The only atypical fact that it relied upon was that the e-mails in question were stored in a separate folder rather than intermingled with e-mails related to governmental affairs. The Court minimized the significant of this fact as follows:
That said, it does not follow that personal emails not filed in a separate folder (as was the case here) are necessarily subject to the operation of the Act. Much will depend on the individual circumstances of each case, but generally speaking, I would expect very few employee emails that are personal in nature and unrelated to government affairs to be subject to legislation merely because they were sent or received on the email server of an institution subject to the Act.
Importantly, the decision does not recognize a privacy right in personal e-mails or preclude institutions from auditing or inspecting personal e-mails. The Court makes relatively clear that its decision does not rest on employees’ privacy interest in the content of their e-mails.
Copy below circulated by Heenan Blaikie. Congratulations to Priscilla Platt and Brad Elberg, who acted for the City. As the Court (remarkably) says, its decision has implications for public sector employees that are “staggering.” Look for an appeal.