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Privacy commissioner e-mail ruling sets new precedent

Decision will be used in crafting future decisions: lawyer
|Written By Neil Etienne

In order by the Information and Privacy Commissioner is being called precedent-setting by legal professionals, after it led the City of Oshawa to release a councillor’s e-mail sent from her personal device and her private account.

John Mascarin says recent ruling related to an Oshawa councillor using her personal account and personal device ‘flies in the face’ of similar matters.

“The historical position of the IPC with respect to records of a council member have been quite honestly a little bizarre,” says John Mascarin, a partner with Aird & Berlis LLP and member of the firm’s municipal and land use planning group, who has written a number of articles on the disclosure of councillor records in the past.

“I’ve lamented the fact the IPC was proceeding from a very flawed analysis on how it would look at these things. Under Section 1, it states the purpose of the Municipal Freedom of Information [and Protection of Privacy] Act is to provide a right of access to information held under the control or custody of a municipality,” he explains.

“There is no specific exemption that says the records of a councillor shall not be subject to disclosure, and yet the IPC rulings have been consistent throughout time, but they’ve all been wrong, in saying a councillor’s records are not subject to disclosure.”

Mascarin says the Oshawa ruling “flies in the face” of similar matters ruled on by the IPC and comes much closer to the spirit of the access to information rules.

“How can you divorce the elected official from the actual institution? To me, it’s a complete legal fiction that has been perpetuated by a whole series of decisions that, if anything, were consistent until you get to the Oshawa decision,” says Mascarin.

About two years ago, the City of Oshawa found itself dealing with a public debate with its auditor general, Ron Foster, over allegations of wrongdoing related to the acquisition of a $5.9-million parcel of land by the city. In 2013, Foster released portions of a report that suggested the city paid almost $2 million too much for the property.

In May 2013, a motion to appoint a municipal lawyer to investigate the allegations of misconduct on the part of city employees and departments was passed.

Just hours before that meeting, Coun. Nancy Diamond had e-mailed the lawyer from her own personal account, using her iPad, asking for feedback on a draft motion to appoint him as the investigator.

A resident of the city subsequently made a request under the Municipal Freedom of Information and Protection of Privacy Act for all communication between the councillor and the lawyer, but the city refused the request on the grounds those records were not in its custody or control.

The city also argued that the councillor was not an officer or employee of the city and interactions between individual councillors and members of the public “are not core, central or basic functions of the city as an institution.”

That led to an appeal to the Information and Privacy Commissioner of Ontario, which ruled that despite the communication coming from a personal device and personal account, the e-mail is under the city’s custody and control.

According to the Information and Privacy Commissioner’s ruling, written by adjudicator Gillian Shaw: “The city submits that the record does not relate to its mandate and functions but rather to the independent and personal actions of the councillor in the context of her personal or political activities. It submits that the councillor’s interaction with the investigator was a personal matter and not a core function of the city.

“I disagree,” Shaw continued. “The record contains, in effect, negotiations between the councillor and the investigator relating to the city’s potential hiring of him. This relates directly to the city’s mandate and functions.”

Shaw also pointed to a highly publicized 2013 ruling by the privacy commissioner that dismissed an access to information request to similarly sent communications by Toronto city councillor Doug Ford, related to bringing a National Football League team to the city. The IPC found the records were in the possession of the councillor and were not records within custody or control of the city and also ruled Ford was not to be categorized as an employee of the city.

Shaw differentiated the two matters when she wrote the Toronto NFL matter was “speculative or hypothetical.”

“In the present appeal, while the hiring of the investigator was contingent on a vote of council members, that vote was imminent,” Shaw wrote.

“Moreover, the councillor’s email played a crucial role in the negotiations resulting [in] the hiring of the investigator.”

Marvin Huberman, a certified specialist in civil litigation, barrister, mediator, and arbitrator, says he, too, sees the ruling as precedent-setting and one that will be used in crafting decisions on similar matters in the future.

“It offers clarity and an appropriate application of the relevant principles of law and statutory provisions to the facts and circumstances in that case,” he says. “To me, the system worked as it was supposed to work and how it was intended to work.”

Mascarin says that while the ruling is a better one than previous decisions by the IPC, he takes issue with differentiating the two matters and still believes access should have been granted to Ford’s communications.

“What difference should that make; why does it matter if a council member is or is not an employee?” he says. “It created this sort of historical legal fiction and they continued to perpetuate it. They [previous IPC rulings] were, in my view, wrong, but at least they were consistent when they kept saying a council member is not an employee and a councillor’s records, therefore, do not fall in to the scope of the custody or control of [the municipality].”

Mascarin says with the Oshawa ruling, “it seems to say if something is really linked to a matter at council or is to be considered by the municipality as part of their business, then that is a record that should be available to the public and there should be no exceptions that apply.

“It is precedent-setting; it goes against the grain of other IPC rulings,” he says. “This is such an about-face from what it was before, so I think it’s really surprised a lot of people. I think many council members before felt they could properly have their records withheld from disclosure; now they have to worry about any e-mails they send from their personal accounts on city business could possibly be required to be disclosed, so that’s a huge change from before.”

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