In a decision that may set a precedent for municipalities across the province, Ontario’s Information and Privacy Commissioner (IPC) has ruled that the City of Oshawa must consider an email sent by a sitting councillor from her personal email address an official city record. As part of its ruling, the IPC stated that any records that emanate from a councillor’s official responsibilities as a member of council are subject to information access laws.
The city argues that it could not legally compel the councillor to provide the record. The parties did not refer me to any contracts, codes of conduct or policies that expressly or by implication give the city the legal right to possess or otherwise control the record, which was sent from the councillor’s personal iPad. The Supreme Court has stated, however, that de facto (as opposed to de jure) control is recognized as control. Although a councillor is not considered to be part of the city for the purposes of the Act, neither is a councillor a stranger to the city; both are governed by the Municipal Act.… I acknowledge that, as discussed above, many previous orders of this office have found that records created by city councillors are not in the control of the city. However, determining custody and control is a contextual exercise. None of the orders involved facts similar to those before me…
-Information and Privacy Commissioner Ontario, ORDER MO-3281, The Corporation of the City of Oshawa, January 22 2016