For Elected Officials, Few Communications Are Private

The electronic records of elected officials have been a recent subject of interest both in Canada and in the United States. Most recently, Democratic Presidential nominee hopeful, Hillary Clinton, started her campaign amid controversy in relation to a private email server she had used during her time as US Secretary of State. The implications led to an FBI investigation and to hearings before the United States House Select Committee on Benghazi. Closer to home, in 2013 a member of the media requested from the City of Toronto information in relation to then Mayor Rob Ford’s correspondence with an outside party about bringing an NFL team to the city. The request was declined as the adjudicator in that matter determined that the records related to the councillor’s role as an individual constituent.

Determining what constitutes an institutional record as opposed to a political or personal record will make the difference on whether the public can review such record. Earlier this year, the Office of the Information and Privacy Commissioner of Ontario (“IPC”) in The Corporation of the City of Oshawa (January 22, 2016), Order MO-3281 [MO-3281] rightfully decided to extend public disclosure to personal email account correspondence of elected officials under certain circumstances. A step in the right direction in holding elected officials accountable.

Facts

At a City of Oshawa (“City”) council meeting in May of 2013, council passed a motion to appoint a lawyer to investigate allegations of misconduct in relation to the City’s acquisition of a property. Before the vote, one of the councillors held an unofficial meeting with two other councillors where she suggested hiring a particular lawyer to conduct the investigation. She then sent an email from her personal address to the lawyer who was later to be appointed to ask him for feedback on the motion and to check his availability. The motion passed and the lawyer was eventually appointed. Later, an outside request was made under the Municipal Freedom of Information and Privacy Protection Act, RSO 1990, c M56 [MFIPPA] for all records between the councillor in question in relation to the matter under investigation.

Following receipt of the request for information, the City requested from the named councillor all records potentially responsive to the application. The councillor submitted records, including a hard copy of the email from her personal account. The City reviewed the record and determined that it was not subject to the MFIPPA because it was not “in the custody” or “under the control” of the City (MO-3281, para 27). The City denied the request on the personal email correspondence because it was “generated by the councillor in their personal capacity or as an elected official and not as an officer or employee of the City of Oshawa” (MO-3281, para 3).

An appeal was made before the IPC in which the adjudicator ruled that the record at issue was under the City’s control and ordered the City to make an access decision in response to the request (MO-3281, para 7).

Analysis

Section 4(1) of the MFIPPA reads as follows:

Every person has a right of access to a record or a part of a record in the custody or under the control of an institution ….

The terms “custody” or “control” are not defined in the MFIPPA. The term “institution” is defined in section 2(1) of the MFIPPA to include municipalities but does not refer to elected offices such as a councillor (MO-3281, para 13).

Usually councillors would not fall within the definition of “institution” as they are not an agent or employee of the municipal corporation. However, in an earlier order of the IPC, the adjudicator found that records held by municipal councillors may be subject to an access request under MFIPPA in two situations:

Where a councillor is acting as an “officer” or “employee” of the municipality, or is discharging a special duty assigned by council, such that they may be considered part of the “institution”; or

Where, even if the above circumstances do not apply, the councillor’s records are in the custody or under the control of the municipality on the basis of established principles (MO-3281, para 15).

The test for control has been considered by the Supreme Court of Canada (“SCC”) in Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25 [National Defence]. The SCC established a two-part test to determine whether an institution has control of records that are not in its physical possession. The questions to be asked are:

1. Do the contents of the document relate to a departmental matter?
2. Could the government institution reasonably expect to obtain a copy of the document  upon request (National Defence, paras 6 & 50)?

The adjudicator in the present case concluded that the content of the personal email related to the hiring of an investigator to review allegations made about individual city employees. The creation of the record at issue played an integral part in the council’s decision to retain the investigator in this case and, as such, it relates to a city matter (MO-3281, paras 71-72). Further, the email contains negotiations between the city councillor and the investigator relating to the City’s potential hiring. These negotiations  relate directly to the City’s mandate and functions (para 75).

Further, because the City relied on the groundwork that the councillor laid out in order to secure the engagement of the investigator, it could reasonably expect to obtain a copy of the record from the councillor (para 79). As such, the IPC’s office rightfully determined that the record should have been released.

Why Councillors Should Not Get Away With It

The present order marks a significant departure from previous cases where the IPC had refused to hold that councillor records were under the control of the municipality. In particular, the adjudicator goes to great lengths in distinguishing MO-3281 from the case related to the Rob Ford NFL complaint. The adjudicator determined that in the Rob Ford complaint, “the records (if they existed) related to a city matter that was speculative or hypothetical” (para 84). In reality, however, it really should not be dependant on whether the matter is hypothetical or speculative. The application of the test means that if it relates to an institutional matter and it is within the control of the institution, then the record should be released.

MO-3281 goes a long way in holding councillors accountable and making sure that no backroom deals are made. Specifically, it sends the message that elected officials should not be using their personal addresses do get away from Freedom of Information Requests. This judgement also ensures accountability and sends a signal that backroom deals from elected officials are not acceptable. The public will be watching.