Court of Appeal affirms robust interpretation of academic freedom exclusion in Alberta

On October 28, 2025, the Court of Appeal of Alberta affirmed that the Alberta Office of the Information and Privacy Commissioner (the OIPC) acted unreasonably in narrowly construing the teaching and research records exclusion in the Alberta Freedom of Information and Protection of Privacy Act (FIPPA).

The request and OIPC decision

The request was for information pertaining to a complaint made by two University of Calgary law professors to the Canadian Judicial Council regarding Justice Robin Camp, who resigned from the bench in 2017 after the CJC recommended his removal for comments made in hearing a sexual assault case.

The OIPC construed the teaching and research records exclusion narrowly, and expressly stated, “There is no indication in the Act that these categories are determined via balancing interests in disclosure versus academic freedom.” The disputed records included e-mail discussions among professors about what might be taught in a particular course, which the OIPC held were not “teaching materials,” which it defined as “materials the substance of which imparts knowledge, skill, or instruction.” The OIPC also held that the disputed records were not comprised of “research information” when weighed against the “systematic investigation” definition of research adopted by the Ontario IPC.

The Court of Appeal decision

The Court of Appeal identified fundamental flaws in the IPC reasoning.

First, it held that the OIPC’S reasons “simply repeat[ed] statutory language, summariz[ed] arguments made, and then stat[ed] a peremptory conclusion.” The OIPC defined the terms as capturing mostly finished products ultimately presented in classrooms or publicly shared through publications. This, it said, “renders ss 4(1)(h) and (i) largely redundant, as a FOIPPA request would serve little purpose with respect to materials already in the public domain.”

Second, it held that the OIPC “arbitrarily chose definitions of ‘teaching materials’ and ‘research information’ without engaging in the necessary statutory interpretation,” failing to explain why restrictive interpretations were preferable and failing to reckon with legislative intent. Regarding this intent, the Court drew from the important Supreme Court of Canada “Mandate Letters Case” from 2024 in stating that freedom of information statutes “engage significant competing public interests and strike an important balance between the public’s need for transparency and visibility in the conduct of public agencies and the need for confidentiality and/or privacy protection for some of those very same institutions to perform their important public functions effectively.”

Discussion about the scope of research

The parties were joined by intervenors from the Faculty Association of the University of Calgary, the Canadian Association of University Teachers, and the Canadian Association of Law Teachers, all of whom took issue with certain obiter comments made by the chambers judge that suggested a distinction between academic study of social activism and direct participation in social activism, with participation falling outside the statutory exclusion.

The Court of Appeal rejected this approach, stating:

We agree that academic freedom exists to protect all scholarship, including that which may be unpopular or politically targeted. A distinction between participation in activism and study of activism may lead to definitions of “teaching materials” and “research information” which exclude novel teaching methodologies, teaching and research activities on particular topics involving what might be construed as participation in activism, and other direct engagement in the community outside the traditional classroom setting, as well as an academic’s participation relating to responsibilities or duties at their post-secondary institution.

This is a critical clarification. The exclusion protects the process of academic work, broadly defined.

Conclusion

The Court of Appeal’s decision is a decisive affirmation that academic freedom exclusions must be interpreted purposively, not formalistically. The OIPC’s narrow approach – treating these as mere carve-outs rather than affirmative protections for the academy’s core function – was fundamentally unreasonable. This approach is grounded in first principles and the Mandate Letters Case, in which Justice Karakatsanis wrote:

Freedom of information (FOI) legislation strikes a balance between the public’s need to know and the confidentiality the executive requires to govern effectively. Both are crucial to the proper functioning of our democracy.

It is therefore applicable beyond Alberta’s borders, notwithstanding the narrower view taken by Ontario IPC.

As a procedural matter, the University identified the records as teaching or research materials, so neither the University’s right of access to the records nor the question of custody and control were at issue. The matter of exclusion and a university’s entitlement to handle records and determine whether they are excluded are distinct. This case, by illustration, underscores the university entitlement.

Governors of the University of Calgary v Alberta (Information and Privacy Commissioner), 2025 ABCA 350 (CanLII), <https://canlii.ca/t/kg5f3>, retrieved on 2025-11-17

Mandate letters decision applied to give full force to academic freedom exclusion in Alberta

The Supreme Court of Canada issued its “Mandate Letters” decision in February of this year. It was an obscure case for day-to-day freedom of information practice, addressing whether written mandates by a premier to their ministers are accessible to the public under freedom of information legislation. Mandate Letters was nonetheless signficant for its re-framing of statutory purposes: access legislation does not just support transparency, but is meant to “strike a balance.” In the very first line of her judgement Justice Karatkanis said:

Freedom of information (FOI) legislation strikes a balance between the public’s need to know and the confidentiality the executive requires to govern effectively. Both are crucial to the proper functioning of our democracy.

She then held that the IPC/Ontario erred by failing to engage meaningfully with the legal and factual context underlying the cabinet confidences exemption in Ontario FIPPA.

On September 30, 2024, the Court of King’s Bench of Alberta applied Mandate Letters in finding that the Alberta OIPC erred in failing to adequately engage with the teaching and research records exclusion in Alberta FIPPA.

The OPIC construed the teaching and research records exclusion narrowly, and expressly stated, “There is no indication in the Act that these categories are determined via balancing interests in disclosure versus academic freedom.” One can plainly see the conflict between this statement and Mandate Letters.

Teaching records. The disputed teaching records included e-mail discussions among professors about what might be taught in a particular course. The Court held the OPIC erred in treating these records as within the Act because they do not themselves impart knowledge, skill or instruction. It said that the exclusion extends to all “materials arising from activities reasonably necessary to facilitate and/or related to the act of teaching.”

Research records. The Court also held that the OPIC erred in constraining research to “systematic investigation,” explaining:

Whatever the field, research is rarely a siloed activity. Breakthroughs and progress often occur in the crucible of conversation, contention and controversy. Accordingly, to encourage research and innovation, it may be necessary to protect discussions among academic colleagues.

It further commented that the question is not about the quality or social utility of the research in question, nor does a link to “ideological precepts” diminish a claim to academic freedom – judgement on such matters being within the exclusive domain of the academy. The exclusion, however, does not extend to (pure) social activism

Academics who personally involve themselves in social actions/causes do so with the advantage of time, resources, and status afforded to them by virtue of their affiliation with, and funding by, public institutions. It is appropriate, and in line with the fundamental purposes of freedom of information legislation, that their activities in this realm be subject to scrutiny and oversight.

These findings are at odds with the more constrained view of Ontario’s teaching and research records exclusion taken by the Ontario/IPC, though are principled and threfore applicable outside of Alberta.

Note that this decision is about the substantive scope of the exclusion, and not a University’s entitlement to access teaching and research records. These are distinct issues per City of Ottawa. The Court noted, “The University of Calgary identified and categorized the records at issue as either teaching materials or research materials.”

Governors of the University of Calgary v Alberta Information and Privacy Commissioner, 2024 ABKB 522 (CanLII).

BCSC addresses university possession and control of research records

On November 6th, the Supreme Court of British Columbia affirmed a British Columbia OIPC finding that a university was in possession and control of e-mails sent and received by a faculty member that the University claimed related to research. The Court nonetheless quashed the OIPC’s order to issue a decision in respect of the e-mails on the basis that they were not excluded from the public right of access.

The request was for e-mail correspondence between a faculty member and his research collaborator in Japan over a lengthy time period. The University denied the request based on the statutory exclusion for “research information” in British Columbia FIPPA – an exclusion meant to safeguard academic freedom.

On appeal to the OIPC, the University relied on an affidavit from the targeted professor that stated all of the requested communications were related to ongoing research. The affidavit also described the general nature of the communciations, but did not include an index.

The requester responded that the faculty member and his colleague from Japan “have collaborated on numerous formal complaints to TRU about Dr. Pyne’s professional work and behavior” and indicated that they were seeking correspondence that established an improper leak of related information by the faculty member to the colleague – an act of “professional activism.” The OPIC held that the records were under the University’s possession and control and that the University failed to meet its onus of establishing that they were excluded. It ordered it to make a decision as to their release under FIPPA.

The Court affirmed the OIPC’s possession and control finding, dismissing the University’s argument that academic freedom rendered the e-mails beyond its possession and control. The Court said:

[49] Much of TRU’s argument on both arms of the custody and control issue is an attempt to characterize the academic university setting as one in which ordinary analysis does not apply. The argument is that academic faculty members are special: they have academic freedom, which is to say, a protected sphere of individual autonomy, within which they are free from oversight and direction by the university, and their email correspondence within that sphere should be no more subject to disclosure under FIPPA than would be purely personal correspondence.

[50] Counsel for OIPC submits that both arms of TRU’s argument are analytically misplaced because, while FIPPA recognizes the importance of academic freedom, it does so under the aegis of the research information (or research materials) exception in s. 3(1)(e) (now s. 3(3)(i)). I agree with this submission. The research information exception makes room for TRU’s argument. It is unhelpful to have to deal with it separately as an argument about custody or control.

The suggestion in the last sentence above is that the existence of the statutory exclusion lends support to institutional possession and control – i.e., that academic freedom is protected by the exclusion but does not restrict a University’s ability to handle faculty records in processing requests.

The Court nonetheless quashed the OIPC’s order. It held that the University’s evidence established that at least some of the responsive e-mails were excluded, and that the resulting order to issue a decision in respect of all responsive records was over-broad. In making this finding, it held that the OPIC had a reasonable basis for doubting the faculty member’s “blanket assertion” given the competing evidence about “professional activism.”

IMHO the University’s affidavit ought to have carried the day. It may make sense to require better, more particular evidence to support an exclusion claim when the claimant’s evidence is rebutted, but I don’t believe it was rebutted in this case. The only assertion by the requester is that the set of responsive e-mails likely contained information about a research misconduct matter, and research misconduct is typically treated as within the scope of academic freedom and subject to academic self governance and freedom.

Thompson Rivers University v British Columbia (Information and Privacy Commissioner), 2023 BCSC 1933 (CanLII).

Alberta court issues important e-FOI decisions – faculty e-mails not in custody or control

The Alberta Court of Queen’s Bench issued a pair of judgements about access to faculty e-mails on April 23rd, ultimately deciding that the Alberta OIPC erred in finding that faculty member e-mails relating to participation on a Social Sciences and Humanities Research Council of Canada committee were in the custody or control of the University of Alberta.

Here are the four points of significance.

First, the Court held that the standard of review for custody or control decisions is reasonableness based on the strong presumption established by the Supreme Court of Canada last December in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association. This is a change, albeit a predictable one in light of Alberta Teachers’ Association. Despite the outcome in this case, custody or control decisions will generally be harder to challenge on judicial review than in the past.

Second, the Court held that the Association of Academic Staff of the University of Alberta did not have a right to notice of standing in the OPIC’s hearing as an affected party or as a matter of fairness. It held that the AASUA interest in the precedential effect of the OIPC’s finding did not give it an interest in the request under appeal sufficient to justify a right to notice and standing.

Third, the Court held that the OIPC erred in finding that the records at issue were under the university’s custody or control.

In part, the Court’s reasoning highlights the growing importance of assessing the purpose of access to information legislation in deciding custody or control issues. It held the OPIC erred by failing to recognize that the faculty member’s e-mails related to a grant funding process in which the university had no role. They therefore shed no light on the university’s own operation in furtherance of the statutory aims. Rather, the records at issue shed much more light on another public institution’s operations, something the Court said the OIPC also ought to have considered.

The Court’s reasoning also suggests that standard technical processes used in the management of business e-mail systems will not govern whether e-mails are in the custody or control of a public institution. It held that the OIPC erred by inferring too much from the routine backup of e-mails and the right to monitor. The Court said, “It was unreasonable to focus on the general computer use policy, rather than considering the particular records in question.”

Finally, the Court declined to address a bold argument by the AASUA that all records produced by faculty members in the course of participating in external committee work and in the context of their internal research and other academic work are not subject to a university’s custody or control. The Court said, “Academic freedom may be one relevant factor in considering whether a university has custody or control of records, but until the Commissioner considers that question in a hearing that raises the issue at first instance, this Court need not address it here.”

University of Alberta v. Alberta (Information and Privacy Commissioner), 2012 ABQB 247 (CanLII) (standard of review, custody or control).

Association of Academic Staff of the University of Alberta v University of Alberta, 2012 ABQB 248 (CanLII) (notice and standing).