On June 18th the Court of Appeal for Ontario held that the Ministry of the Attorney General is not in custody or control of records in a Children’s Lawyer litigation file even though the Children’s Lawyer, for administrative purposes, is part of MAG. The finding turns on the Children’s Lawyer’s independence and the privacy interests of the children it represents. These kind of contextual factors are important to the custody or control analysis. As stated by the Court, “an organization’s administrative structure is not determinative of custody or control for purposes of FIPPA.”
This decision is consistent with other law that suggests records within an institution are not always in custody or control of an institution – e.g., certain faculty records and personal e-mails. Custody or control is therefore no simple concept to administer and is prone to dispute. At least for now IPC decisions will be subject to judicial review on the correctness standard, another (surprising) finding the Court of Appeal made in rendering its decision.
Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 (CanLII).
I’ve been preparing a case digest for an upcoming universities conference we’re hosting and summarized these two Ontario FOI cases, both of significance.
April 9th – IPC finds personal e-mails under City’s custody or control
In this order, the IPC held that the City of Ottawa was in custody or control of e-mails its solicitor sent and received in his personal capacity, as a board member of a local Children’s Aid Society. Though acknowledging that the e-mails had nothing to do with City business, it held:
- The City was in physical possessions of the records, which were stored on its e-mail server.
- The City had the authority to regulate the use of the e-mail system upon the records were kept even though personal e-mails were excluded from the definition of “business record” under the City’s retention by-law.
- The City reserved a right to monitor its system for unauthorized use.
The factual basis for this decision is not unique, so it has broad significance for FIPPA and MFIPPA institutions.
The City has filed an application for judicial review.
Order MO-2408, 2009 CanLII 16569 (ON I.P.C.).
August 21st – IPC orders municipality to sue third-party record holder
The IPC issued a compliance order that required a municipality to take “all steps necessary,” including legal action, to obtain records that it decided earlier were under the municipality’s custody or control.
The request was for a model and input data that was in the custody of a third-party consultant who was retained by the municipality to evaluate a proposed landfill site. There was no formal retainer, and after an analyzing the IPC’s traditional “custody or control” factors, in May 2009 the IPC ordered the municipality to “issue a written direction to Jagger Hims to provide the County with the records responsive to the appellant’s request.” The municipality did exactly what the IPC ordered, but the third-party did not cooperate and deliver up the records at issue.
The IPC re-initiated its proceeding. Its compliance order was based in part on a finding that the municipality had a “potent legal basis” for causing the third-party to turn over the records.
Order MO-2449, 2009 CanLII 47235 (ON I.P.C.).