Employment and Social Development Canada (Re), 2021 OIC 13

Date: 2021-05-04
OIC file number: 5819-03939
Institution file number: A-2019-02097/AB

Summary

The complainant alleged that Employment and Social Development Canada (ESDC) was incorrect in stating that it could not process an access request under the Access to Information Act. The access request is for emails to and from a named ESDC employee, containing certain keywords. Given the specific keywords, ESDC did not process the request because it claimed that the emails were not under its control. The emails are entirely personal in nature, and have no business value for ESDC. As a result, even though the emails are stored on ESDC servers, the Office of the Information Commissioner is satisfied that the requested records are not under ESDC’s control and therefore not subject to the Act. The complaint is not well founded.

Complaint

[1]      The complainant alleged that Employment and Social Development Canada (ESDC) was incorrect in stating that it could not process an access request under the Access to Information Act. The access request is for emails to and from a named ESDC employee, containing certain keywords where ESDC claimed that these emails were outside its control.

Investigation

Control of records

[2]      The Act provides requesters with a right of access to records that are “under the control” of government institutions. While the Act does not define “under the control,” the courts have affirmed that this phrase should be interpreted broadly and liberally in order to make the right of access meaningful. (See Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25).

[3]      Whether records are under the control of an institution must be assessed on a case-by-case. A range of factors must be considered when determining whether an institution has control over the records. The scope of what constitutes relevant factors, and the relative weight accorded to each, varies depending on the circumstances.

Are the records under the control of the institution?

[4]      During the investigation, the Office of the Information Commissioner (OIC) confirmed that the requested emails are in the physical possession of ESDC. In turn, the complainant argued that ESDC must process and disclose them under the Act, since the ESDC employee who sent and received the emails used a government email account.

[5]      In determining whether the emails were, in fact, under ESDC’s control, the OIC considered both of these points and weighed them against other relevant factors.

[6]      These included several factors that focus on whether there is any institutional requirement or purpose for the records, including:

• whether the contents of the emails relate to an institutional matter and involve ESDC’s mandate, obligations, functions and operations;
• whether the emails were created to fulfil any ESDC officer’s or employee’s duties or functions and/or were intended to be used for any employment-related purpose;
• whether the emails were created to fulfil a statutory requirement imposed on ESDC; and
• whether ESDC relied on the emails when preparing government records.

[7]      Based on a review of the contents of the emails, it is clear that they are entirely personal and, thus, that there is no institutional requirement or purpose for them.

[8]      The OIC also considered as factors whether ESDC has any authority with regard to the use or disposition of the emails and whether communicating the contents of the emails required the authorization of an ESDC officer or employee. Although ESDC may have a limited right of access to the emails, since they are located on its email server, ESDC has no apparent authority to regulate or control their use or disposition. At any time, the employee who sent and received the emails could have deleted, altered, forwarded or recalled them without authorization or oversight from ESDC.

[9]      Finally, the OIC examined as a factor whether the emails are integrated with other ESDC records and, if so, how closely. The OIC determined that there was no evidence of the emails having been integrated with ESDC’s information holdings.

[10]    Together, the factors assessed above, significantly weigh in favour of a finding that the emails are not under ESDC’s control. The OIC is satisfied that the requested records are not under ESDC’s control and therefore not subject to the Act.

Result

[11]    The complaint is not well founded.

Section 41 of the Act provides a right to the complainant who receives this report to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.