Case Report – Personal e-mails not subject to FOI legislation

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.

City of Ottawa v. Ontario (Information and Privacy Commissioner) (13 December 2010, Ont Div. Ct.).

2 thoughts on “Case Report – Personal e-mails not subject to FOI legislation

  1. I wanted to let the authors know, because it was not referenced in this case, that the e-mails in question (three of them after 400 were narrowed down during mediation to e-mails which only pertain to me, the requester) are e-mails which are held on a government server, and which pertain directly to myself, the private citizen who requested them under MFIPPA.

    This decision also has the effect of preventing regular citizens who might know of a City employee who is engaged in illegal conduct to obtain evidence of such conduct for the purpose of engaging in either a private prosecution against the offending party, or even from reporting such illegal conduct to City Officials in order to support the complaint.

    This has the effect of preventing citizens from participating in the democratic process in that they can not hold government staff accountable for illegal conduct when police will not investigate due to various reasons such as personal or political connections or consequences or even as simple as police stating (as was the case in this case) that they will not investigate provincial offence matters.

    If the particular e-mails were to be obtained, it could reveal Mr O’Connor’s involvement as a Board member of the particular Society he was Vice President of at the time in the commission of a provincial offence, of which charges had been laid at the time.

    John Dunn
    M0-2408 / 09-DV-1513 Requester/Respondent
    Foster Care Council of Canada

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