In Order MO-3031, regarding the York Region District School
Board, (the "School Board") the IPC ruled that certain
records of School Board trustees were not in the custody or under
the control of the School Board and therefore were not governed by
access to information provisions of Municipal Freedom of
Information and Protection of Privacy Act ("MFIPPA").
Section 4(1) of MFIPPA states that "every person has a
right of access to a record or a part of a record in the custody or
under the control of an institution..." If the records at
issue are not in the custody or under the control of the school
board, then the right of access cannot apply.
This decision, made on April 7, 2014, is the first time the IPC
has ruled on whether certain records of school board trustees were
accessible under MFIPPA. The IPC applied its past decisions
regarding elected municipal councillors to elected school board
trustees and reasoned that, with some exceptions, such records may
not be accessed under MFIPPA.
In this case, the records involved communications between
trustees regarding the selection of a new trustee to replace a
departing one. The IPC found that these communications were not
made by the trustees in a context where they were in effect acting
as an officer or employee of the school board or discharging a
special duty assigned to them by the school board. The IPC noted
that the records of elected officials would not generally, subject
to that exception, be governed by the access to information
provisions of MFIPPA.
However, the IPC also noted that records of trustees could
become covered by the access to information provisions of MFIPPA if
they are held by the school board and relate to a school board
matter in circumstances where the record could be obtained by the
school board on request. In this respect, the IPC applied the
Supreme Court of Canada's decision in Canada (Information
Commissioner) v. Canada (Minister of National Defence) 2011 SCC 25,
where this test was articulated in the federal government context.
The Court had distinguished between the records of elected
officials and those of the government department.
The IPC found that these particular communications between
trustees were not held by the school board and were not in respect
of a school board matter. The IPC accepted the Board's
characterization of the email communications as "political
discussions" and noted as well that these records were not
integrated with the Board's business records. In this latter
respect, the IPC applied the Divisional Court's ruling in City
of Ottawa v. Ontario (Information and Privacy Commissioner), 2010
ONSC 6835, that the use of the City's email system or server to
store communications that are not related to the business of the
institution cannot result in the application of the right of
This decision is significant in that it is the first time the
IPC has dealt with records of school board trustees in this manner.
Ultimately, when a request is made for such records the content of
the records and the context in which they were created will have to
be assessed in order to determine whether the right of access under
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