Control of records

Table of contents

• Requirements: subsection 4(1)
• Framework 1: Factors used to determine control when an institution is in physical possession of the records
• Framework 2: PM’s Agenda test
  • 1. Do the contents of the record relate to an institutional matter?
  • 2. If so, should a senior official of the institution reasonably expect to obtain a copy of the record upon request, based on a consideration of all relevant factors?
• Factors to consider
  • Who created the record?
  • Do the contents of the records relate to an institutional matter?
  • Why was the record created or obtained?
  • Did the institution rely on the record when preparing government records?
  • Does the institution have a legally enforceable right of access to the record?
  • Does the institution have any authority to regulate or control the use or disposition of the record?
  • Does the communication of the content of the records require the authorization of an officer or employee of an institution?
  • Is the record integrated with other records held by the institution? If so, how closely has the record been integrated?
• References
  • Commissioner’s decisions

The right of access under the Access to Information Act only applies to records under the control of government institutions. Institutions must therefore determine whether records requested under the Act are under their control.

There are two frameworks of analysis for making such determinations, depending on who is in possession of the records. Both frameworks consider a number of factors and federal and provincial case law (examples of which are included below). 

Requirements: subsection 4(1)

Subsection 4(1) of the Act provides a right of access for Canadian citizens and permanent residents to records under the control of a government institution. Section 2 of Extension Order, No. 1, extends the right of access to all individuals and all corporations present in Canada. This means that a government institution must release to requesters information that is under its control, subject to any statutory exemptions and exclusions.

“Control” is not defined in the Act. However, the Supreme Court of Canada affirmed in the PM’s Agenda decision that the term should be interpreted broadly and liberally to provide a meaningful right of access.

Determining possession

Which framework of analysis is applied depends on who is in possession of the records.

“Possession” refers to what organization, institution or individual has physical custody of the relevant records. For example, the records could be paper copies stored in a facility controlled by an outside organization, electronic copies stored on a network controlled by a government institution or work-related notes stored at the home of an individual.

The evolution of the relevant case law has created two frameworks of analysis, depending who possesses the records:

• consideration of relevant factors when the government institution is in physical possession of the records; and
• the PM’s Agenda test, when the government institution is not in physical possession of the records.

Framework 1: Factors used to determine control when an institution is in physical possession of the records

The Courts have considered a number of factors to determine control when the institution is in physical possession of the records.

The applicability and the assessment of the factors depend on the specific factual circumstances. This means that the factors might not all be relevant to every requested record. Where a factor is not relevant, it need not be part of the analysis. Generally, no one factor is determinative. Records are under the control of the institution when, taken together, the factors support such a finding. A non-exhaustive list of relevant factors, recognized in the case law, is presented further below.

Framework 2: PM’s Agenda test

The PM’s Agenda test applies when the institution does not have physical possession of the records.

In its decision, the Supreme Court of Canada considered, among other things, whether records held by the Prime Minister’s Office and other ministerial offices were under the control of a “government institution” pursuant to the Act.

The Court found that the Prime Minister’s Office and ministerial offices were not considered “government institutions” under the Act. However, records under the control of  government institutions need not be restricted to records in the physical possession of a government institution. The Court approved a two-step test for determining control over records outside the physical possession of a government institution.

1. Do the contents of the record relate to an institutional matter?

The first step of this test is to ask whether the record relates to an institutional matter. (See “Do the contents of the records relate to an institutional matter?”.) The Act is not intended to capture records about non-institutional matters in the physical possession of non-governmental institutions. At this stage of the inquiry, the contents of the records and their relevance to the mandate, obligations, operations and functions of the institution must be considered. If the contents of the records are not related to an institutional matter, this ends the inquiry – the records would not be under the control of the government institution.

2. If so, should a senior official of the institution reasonably expect to obtain a copy of the record upon request, based on a consideration of all relevant factors?

The second step of this test considers all other relevant factors in order to determine whether an institutional senior official could reasonably expect to obtain a copy upon request. The reasonable expectation test is objective—that is, if a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is met and the record is subject to the Act.

The factors to be considered under this step are the same as those under Framework 1, except that the question of whether the contents relate to an institutional matter will have already been considered. These factors start below.

Factors to consider

Note: The examples of relevant factors below can help inform the analysis of control, but should not take the place of a thorough review of all the relevant factors relating to the requested record.

Who created the record?

The identity of the creator of the record can provide insight into whether the record is under the control of an institution. The relationship between the institution and the creator (e.g. employee versus contractor versus Governor in Council appointee) may also be relevant when determining control.

For example, in its Labour Relations Board decision, the Federal Court of Appeal found that notes taken by members of a tribunal were not under the control of an institution. The Court found that the notes were being taken, “not by employees of the [Canada Labour Relations] Board, but by Governor in Council’s appointees endowed with adjudicative functions which they must perform, not as agent[s] of the Board, but independently of other members of the Board including the chairperson of the Board or a government institution.”

In Lukits, the Federal Public Sector Labour Relations and Employment Board found that course notes created by a professor employed by the Royal Military College of Canada and requested under the Act were not under the control of the College. The evidence demonstrated that while Dr. Lukits used the notes in the course of his employment, the employer did not require the notes to be produced, did not impose any standard with respect to note making and had no control over the retention or destruction of the notes. Thus, while Dr. Lukits was an employee of the College, other circumstances existed such that his course notes were not in the control of the College.

Do the contents of the records relate to an institutional matter?

Another relevant factor is the contents of the records and their relevance to the mandate, obligations, operations and functions of the institution.

For example, while the case law indicates that emails of a personal nature of government employees are generally not under the control of an institution, if any information contained in the emails was used for purposes relating to the institution’s mandate, the finding on control might be different. This could be the case, for instance, if the requested emails related to an investigation conducted into possible misuses of government electronic resources or if the emails related to employment matters.  

Records related to employees’ participation in the activities of external organizations (for example, sitting on committees or volunteering), and therefore not related to institutional matters, are generally not under the control of an institution, even though the records are located on government servers. For example, in University of Alberta, the Court of Queen’s Bench of Alberta considered whether emails a professor sent using the university’s servers and relating to his volunteer activities on a research council were under the control of the university. Even though the university encouraged the professor’s participation on the research council, the Court held that these records were not under the university’s control.  

Why was the record created or obtained?

The purpose behind the creation of the records may provide insight into whether an institution is in control of the records. This includes the following:

• whether the record was created or obtained in fulfillment of an employment duty and/or intended to be used for an employment-related purpose; and
• whether the record was created or obtained for the purpose of fulfilling a statutory requirement imposed on an institution.

For example, in Lukits, the Federal Public Sector Labour Relations and Employment Board found that Dr. Lukits had created the course notes at issue as part of his employment as an instructor at the Royal Military College of Canada, but the notes were for his personal use in preparing for and delivering courses at the College. Thus, the records were found not to be in the College’s control.

In contrast, in the Ontario Information and Privacy Commissioner’s decision in Order P-120, the adjudicator considered whether notes made by a Human Resources Directorate employee during a hiring process were in the control of the institution. In that case, the employee had kept the records in her possession and had created them outside the hours of employment on both work and personal computers. However, the adjudicator found that the records were in the control of the institution. This was because the notes were, “created to document employment-related concerns identified by the third party in her capacity as an employee of the Directorate.”

Similarly, records that may appear to be outside the control of an institution may in fact be under its control, depending on statutory requirements. For example, in Hale, the Court of Appeal for Ontario considered an access request made for backup audio tapes created by a court reporter in order to prepare a transcript. The court reporter was an independent contractor, hired by the Ontario Criminal Code Review Board and there was no requirement that they create backup tapes. The Board took the position that the backup tapes were not under its control. The Court found that under the Criminal Code, the Board was required to keep a record of its proceedings, and the backup tape was among the materials created to ensure an accurate record. Consequently, the Court concluded that the records were under the Board’s control.

Did the institution rely on the record when preparing government records?

Reliance on the record by the institution may affect whether the record is under the control of the institution. In the CIBC case the Federal Court of Appeal considered whether certain information was under the control of the Canadian Human Rights Commission. The Canadian Imperial Bank of Commerce (CIBC) had provided the information to the Commission, which then incorporated it into a report. CIBC argued that the Employment Equity Act restricted the dissemination of information collected pursuant to it, with the effect that this information could not be said to be under the control of the Commission. The Court held that the fact that the Employment Equity Act imposed some limitations on the Commission’s ability to disseminate the information in the record was not a reason for concluding that the record itself was not under the Commission’s control.

Does the institution have a legally enforceable right of access to the record?

A legally enforceable right of access to the record may come from legislation or a contract.

For example, the Ontario Court of Appeal held in Hale that the Ontario Criminal Code Review Board had a right to the court reporter’s backup tapes in light of the Board’s statutory duty to maintain an accurate record of proceedings.

In Labour Relations Board the Federal Court of Appeal reviewed the legislation that empowered the Canada Labour Relations Board and found that no statutory power gave the Board a legally enforceable right of access to the notes of its tribunal members.

Does the institution have any authority to regulate or control the use or disposition of the record?

Whether the institution has the authority to regulate the use or disposition of the record speaks to the relationship between the institution and the records. For example, in Labour Relations Board, the Federal Court of Appeal found that the Board did not have the authority to regulate or control the notes tribunal members made. This indicated a lack of control over the records.

Another example to consider is storage of personal information on government property/networks. While an institution has some measure of control over a filing cabinet that contains personal records belonging to its employees, it does not have the authority to regulate or control the use or disposition of these records. Similarly, while the storage of electronic files comes with a higher need for monitoring, the Ontario Superior Court of Justice in City of Ottawa found that that fact, “does not change the nature of the documents, nor the nature of the [government institution’s] conduct in relation to them”.

Does the communication of the content of the records require the authorization of an officer or employee of an institution?

Circumstances in which the communication of the record would require the authorization of an officer or employee of the institution would tend to indicate a greater degree of control by the institution.

For example, an employee would not require formal authorization of an officer or employee to send or receive emails of a personal nature using government networks when the emails have no connection to the employee’s employment duties and functions or to the institution’s mandate or operations. This would suggest a lack of control.

Is the record integrated with other records held by the institution? If so, how closely has the record been integrated?

In Ministry of the Attorney General, the Ontario Superior Court of Justice considered whether records prepared for the Chief Justice of the Ontario Court of Justice, and later shared with the Ontario Ministry of the Attorney General, were in the custody and/or control of the Ministry. While the principle of judicial independence favoured the records not being in the Ministry’s control, the Court found that the degree of integration of the records with the Ministry’s work meant that the records were in its custody and therefore subject to the Freedom of Information and Protection of Privacy Act. The Court relied, in part, on the fact that the Ministry had posted the information contained in the records on its intranet, thereby integrating the records with their own information holdings.

Conversely, in City of Ottawa, the Ontario Superior Court found that routine, system-wide monitoring and analysis to ensure networks are operating efficiently and to isolate and resolve problems or other general enquiries do not turn emails of a personal nature into government information under the control of an institution.

References

• Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (PM’s Agenda)
• Canada (Privacy Commissioner) v Canada (Labour Relations Board), 2000 CanLII 15487 (FCA) (Labour Relations Board)
• Canadian Imperial Bank of Commerce v Canada (Chief Commissioner, Human Rights Commission), 2007 FCA 272 (CIBC)
• City of Ottawa v Ontario, 2010 ONSC 6835 (City of Ottawa)
• Lukits v. Treasury Board (Department of National Defence), 2019 FPSLREB 32 (Lukits)
• Neilson v. Office of the Information and Privacy Commissioner, [1998] B.C.J. No. 1640 (Neilson)
• Ontario Criminal Code Review Board v. Hale, 1999 CanLII 3805 (ON CA) (Hale)
• Ontario (Ministry of the Attorney General) v. Ontario (Information and Privacy Commissioner), 2011 ONSC 172 (Minister of the Attorney General)
• Order P-120, Ontario Information and Privacy Commissioner (P-120)
• University of Alberta v Alberta (Information and Privacy Commissioner), 2012 ABQB 247 (University of Alberta)

Commissioner’s decisions

• Consult the Commissioner’s decisions on the OIC website.