Because the Information and Privacy Commissioner of Ontario (IPC) decides matters of access to records held by municipalities, an issue often arises when the records requested are those belonging to a municipally-elected councillor, pursuant to the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”). Perhaps the “records” are emails that were sent by the councillor from a personal email account, from a home computer. The IPC has developed a body of case-law and taken a consistent approach, because the legislation does not provide any direction. Last week, the IPC released a fact-sheet that will provide even more insight to the considerations and analysis that will factor into a decision as to whether a councillor’s emails are subject to release, as being created by an “officer or employee” of the municipality, and as being under the “custody and control” of the municipality.

The first consideration, whether the councillor is an officer or employee of the municipality, can be contextual. For example, councillors, generally, are not considered agents or employees of the municipality. However, in IPC Order MO-1403, it was determined that the mayor, as CEO of the municipality, is an officer, and therefore any records produced in connection with his or her duties as mayor would be subject to MFIPPA.

The second consideration is whether the records are under the custody and control of the municipality. Even if the records belong to a person not found to be an officer or employee of the municipality, they can still be subject to release if they are in the custody OR control of the municipality. The IPC will consider a list of factors (below) within the framework of the Supreme Court of Canada’s two-part test from Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25:

1) Do the contents of the record relate to the institution’s business?
2) Could the institution reasonably expect to obtain a copy of the record upon request?

The analysis continues to be very fact-specific and contextual, but the IPC has released the following list of factors (non-exhaustive) that are consistently used as aiding in a determination as to whether a record is in the custody and control of the institution:

• Was the record created by an officer or employee of an institution?
• What use did the creator intend to make of the record?
• Does the institution have a statutory power or duty to carry out the activity that resulted in the creation of the record?
• Is the activity in question a “core”, “central”, or “basic” function of the institution?
• Does the content of the record relate to the institution’s mandate and functions?
• Does the institution have physical possession of the record, either because it has been voluntarily provided by the creator pursuant to a mandatory statutory or employment requirement?
• If the institution does have possession of the record, is it more than “bare possession?”
• If the institution does not have possession of the record, is it being held by an officer or employee of the institution for the purposes of his or her duties as an officer or employee?
• Does the institution have a right to possession of the record?
• Does the institution have the authority to regulate the record’s use, content and disposal?
• Are there any limits on the use to which the institution may put the record, what are those limits, and why do they apply to the record?
• To what extent has the institution relied upon the record?
• How closely is the record integrated with other records held by the institution?
• What is the customary practice of the institution and other similar institutions in relation to possession or control of records of this nature, in similar circumstances?