City Councillors May Be Required to Disclose Emails from Personal Accounts in FOI Requests

It is well established that city councillors may be required to disclose emails sent from councillors’ personal email accounts in some circumstances. Such a circumstance was found in a recent order decided by the Information and Privacy Commissioner in Ontario. Under this order, the City of Oshawa was ordered to disclose an email sent by a city councillor from her personal email account because the email was a record related to a city matter and therefore “under the control” of the City. The city councillor sent the email in question to a lawyer containing a draft motion to appoint the lawyer to conduct an investigation for the City and under what terms. Only a few hours later at a council meeting, the City passed a motion to hire the lawyer to conduct the investigation.

In deciding whether the email was disclosable as a city record, the adjudicator determined that the record was under the control of the municipality. First, the record related to a city matter because the record related to hiring an investigator to examine allegations made against a city employee and city departments. Second, the creation and use of the record indicated that the City could reasonably obtain a copy of the email if requested since the content of the email directly concerned the city’s mandate and functions to negotiate with an investigator to examine a city matter. Of particular significance was that the email played a crucial role in the City Council’s decision to hire the investigator and the resulting negotiations to determine the terms of the agreement.

No issue appears to have been raised by the City regarding the protection of solicitor-client communications in this appeal.

A similar result can be expected in BC since the Freedom of Information and Protection of Privacy Act (“FIPPA”) contains similar disclosure requirements. Under FIPPA, municipalities have a duty to comprehensively search for all potential records related to a request, including records that may be stored in personal email accounts. To ensure it is meeting the requirements of FIPPA, the Office of the Information and Privacy Commissioner for British Columbia recommends that municipalities should consider creating a policy regarding the use of personal email accounts for work-related purposes or require strict use of the work email system.

Rosie Jacobs