Judicial Review – Access to Information and
Protection of Privacy under the Municipal Freedom of
Information and Protection of Privacy Act
This case addresses the question of whether a government
employee's personal e-mails are subject to freedom of
information legislation when those e-mails are sent from a
workplace e-mail address.
The City of Ottawa initially took the position that personal
e-mails of its employees were not subject to section 4(1) of the
Municipal Freedom & Protection of Privacy Act
("MFIPPA") as the e-mails were not "in the custody
or under the control of" the city. On appeal, the Information
and Privacy Commissioner concluded that private e-mails that are
sent via a government e-mail account were subject to the
legislation and ordered the City to provide the requested
disclosure. The City of Ottawa sought judicial review of the
Writing for a unanimous court, Justice Molloy concluded that the
impugned e-mail correspondence was not subject to MFIPPA and was
therefore not accessible by members of the public. In applying a
purposive approach to the analysis, Justice Molloy determined the
intent of the legislation was to enhance democratic values by
providing its citizens with access to information. Justice Molloy
then concluded that expanding the terms "custody and
care" to include personal e-mails of an employee that are
unrelated to government business would not advance the purpose of
the legislation. Further, a citizen's right to participate in
the democratic process would not be impinged by prohibiting access
to private e-mails of government employees. In coming to this
conclusion, Justice Molloy likened personal e-mails to personal
documents that are physically kept in a government employee's
workspace. Just as personal physical documents in a government
employee's workspace are not susceptible to freedom of
information legislation, personal e-mails are similarly
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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