Records stored on legacy system not “records” for FOI purposes

On January 27th, the IPC/Ontario held that records stored only on a legacy backup system were not “records” accessible under Ontario’s public sector access statute.

The requester asked for all records that showed access by a named employee to their own and their spouse’s service department records at a municipality.

The institution provided a fee estimate of $130 for data going back 28 months. For older data, the institution needed to restore data from tapes from a backup system that it had discontinued. It produced estimates (of $19,000 and $13,000) that included work to purchase a new tape drive and software, but on appeal argued the backup records were not accessible because they were not capable of being produced “by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution.” The IPC agreed.

Sudbury (City of Greater) (Re), 2020 CanLII 8240 (ON IPC).

Case Report – Ireland Supreme Court on creating records and proportionality

On December 5th, a 2-1 majority of the Supreme Court of Ireland held that it was not improper to order a defendant to create and produce a special report from a database. However, a separately constituted majority held that, in the circumstances, the costs of such an order would be disproportionate to its benefit until and unless the plaintiff proved the defendant was liable.

The impugned order was made in the context of a competition law dispute. The plaintiff was a domestic seller of calling cards who claimed that the defendant network owner engaged in a discriminatory pricing practice that favoured foreign providers. It requested production of records of specific calls from one or more archived database files in order to prove liability and damages.

The parties argued the merits of the production request in light of another set of records that was also ordered to be produced. When it became apparent that the disclosure of the other set of records would not provide evidence the plaintiff felt it needed to meet its burden of proof, it pressed for production of the call records. The defendant only then strongly raised its proportionality concerns and made a factual admission which it claimed would render production unnecessary. It also claimed that the impugned order would require it to compile, analyze and present information in a form in which it never existed.

The defendant ultimately prevailed at the Supreme Court based on its proportionality argument. Fennelly J. and Kearns J.’s reasoning arguably turned on the plaintiff’s factual admission, which they held made production unnecessary to proof of liability and disproportionate in light of the cost of production (claimed to require the purchase of hardware costing approximately of 150,000 and significant other cost outlays to be made over a six month period). Both recognized the potential necessity of production to proof of damages, and held that the plaintiff may file a fresh application for discovery should it first prove liability. In reaching his finding Fennelly J. said:

I have come to the conclusion that the very unusual burden and heavy cost of the discovery in this case requires the Court to have a clear view of the litigious benefit to the plaintiff from obtaining the extremely detailed breakdown of information which is the only remaining issue.

Geoghegan J., dissenting on the proportionality issue, took the opposite view on the burden of proof, making comments that favoured a strict burden of proving disproportionate costs once evidence is shown to be relevant and necessary. He noted that the defendant had raised cost as a barrier to production well into the dispute and then had argued cost in its submissions without adducing supportive evidence. He said:

My overall impression is that essentially, the appellant was trying unsuccessfully to frighten the court by the mention of what superficially at least would be large figures but figures unsupported by solid evidence.

While the bifurcation of production in response to cost is novel and the dispute on burden of proof significant, the Court’s treatment of the “creating records” issue was dealt with on a more broadly-reasoned basis. Fennelly J. endorsed Geoghegan J.’s reasoning, and Kearns J. did not make comment. Geoghegan J. reasoned that the form in which data is stored is not relevant to the form in which its produced. He said:

It is common knowledge that a vast amount of stored information in the business world which formerly would have been in a documentary form in the traditional sense is now computerised. As a matter of fairness and common sense the courts must adapt themselves to this situation and fashion appropriate analogous orders of discovery. In order to achieve a reasonable parity with traditional documentary discovery it may well be necessary to direct a party “to create documents” within the meaning of the notice of appeal. It may indeed also be necessary to direct a party “to create documents” within the meaning of the notice of appeal even if such “documents” “do not exist at the time the order is made”. I am deliberately using quotation marks because I do not intend to adjudicate on the quasi-metaphysical argument of Mr. Paul Anthony McDermott, counsel for the respondent, that the “documents” do in fact “exist”. At any rate that matter can probably be argued both ways but I would be firmly of opinion that an order of discovery can be made which involves the creation of documents which do not exist, made in the kind of context in which it is sought in this case. Otherwise, potential litigants could operate their business computers in such a way that they would be able to evade any worthwhile discovery. In expressing the above views, I accept that superficially I am perhaps going a step further than the English authorities have done in so far as their rule of court can apparently be interpreted to cover computer discovery. I have no hesitation, however, in making that extension.

Dome Telecom v. Eircom, [2007] IESC 59.