On November 7th, the Information and Privacy Commissioner/Ontario issued a very significant order for Ontario universities. It held that the IPC has exclusive jurisdiction to decide whether a record is in the custody or control of a university in the context of an access request and created a principle-based framework to assess whether records possessed by faculty members are in the custody or control of a university.
The matter relates to a very broad access request that was made to the University of Ottawa immediately after universities came under FIPPA in 2006. The University made a broad collection request of faculty members that led to a grievance by the University’s faculty association (AUPO) that Arbitrator Philip Chodos upheld in 2008. Arbitrator Chodos held that the University violated its faculty agreement by sending the collection request. In May 2009, Arbitrator Chodos issued a second order in which he endorsed a proposal by the association that suggested only a limited number of faculty records were under the custody or control of the University. After this decision, the University denied the request with reference to the Chodos award and on the basis that it had no responsive records. The requester appealed to the IPC.
Adjudicator Smith of the IPC made two important findings.
First, Adjudicator Smith held that the IPC has exclusive jurisdiction to decide whether a record is in the custody or control of a university in the context of an access request. She said:
Applying the two-part test in Weber, it is clear that the legislature intended that issues arising from requests and appeals under the Act be determined by the head, and on appeal, by the Commissioner, and not by a labour arbitrator. Considering the governing legislation (that is, the Act) as applied to the dispute in the relevant factual matrix, as outlined in the foregoing analysis, and bearing in mind that the arbitrator’s authority only arises under the collective agreement, an instrument that is not determinative of the issue of custody or control, I find that, in the context of an access- to-information request made under the Act, the Commissioner has the exclusive jurisdiction to determine this issue.
Second, Adjudicator Smith created a principle-based framework to assess whether records possessed by faculty members are in the custody or control of a university. She said:
Accordingly, I conclude that the arbitral awards are not determinative with respect to the custody or control of records that may be responsive in this case. Rather, the determination is to be made based in the principles enunciated in this order. The significant conclusions I have reached in this regard are:
1. records or portions of records in the possession of an APUO member that relate to personal matters or activities that are wholly unrelated to the university’s mandate, are not in the university’s custody or control;
2. records relating to teaching or research are likely to be impacted by academic freedom, and would only be in the university’s custody and/or control if they would be accessible to it by custom or practice, taking academic freedom into account;
3. administrative records are prima facie in the university’s custody and control, but would not be if they are unavailable to the university by custom or practice, taking academic freedom into account.
Based on these findings, Adjudicator Smith ordered the University to request that association members produce responsive records that are in the University’s custody or control, taking into account the three stipulated criteria. She also suggested that the University require faculty members to create “lists or indices of records or portions of records for which the question of custody or control may be in dispute, including a brief explanation of why a record or records would not be in the university’s custody or control.”
This is complicated and requires further thought. One question I have is whether the recognition of academic freedom in the second “custody or control criterion” is likely to satisfy the faculty association and dissuade it from pursuing judicial review. Another is about the potential effect of the exclusive jurisdiction finding. What if a faculty member takes a position on custody or control and refuses to produce a record for processing? Under the IPC’s approach that dispute will seemingly raise an issue about custody or control under FIPPA, but how can it not arise out of the collective agreement? We might look to a labour arbitrator response to this question in time. And why does a university’s right of access – a right arising out of employment – have anything to do with the FIPPA custody or control standard anyway? Finally, this illustrates the high costs of mixed-use information systems. Consider the extreme cost of the indexing exercise proposed by Adjudicator Smith, all borne out of a need to protect academic freedom and faculty confidentiality because information of different kinds is intermingled on a single system. Is it really the case that academic freedom cannot coexist with a university right of access that’s necessary for a legitimate purpose?