Canada: IPC Orders The Release Of Email Sent From City Councillor's Personal Account

Municipalities and their councillors are advised to pay close attention to a recent decision of the Information and Privacy Commissioner of Ontario ("IPC") which has ordered the release of an email sent from a city council member's private email account.


Two years ago, the City of Oshawa was mired in a very controversial and public dispute with its Auditor General respecting allegations of wrongdoing related to the acquisition of land by the city. At a meeting of the council on May 21, 2013, a motion to appoint a well-known municipal lawyer to investigate the allegations of misconduct on the part of city employees and departments was passed. A few hours prior to the meeting, a city councillor had emailed the lawyer from the councillor's own personal email account, asking for the lawyer's feedback on a draft motion to appoint him as investigator.

A subsequent request was made under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 ("MFIPPA") for "all communication" between the councillor in question and the lawyer between March 1 and October 1, 2013.

The city refused the request on the grounds that:

all records responsive to [the] request, should they exist, would have been generated by the Councillor in their personal capacity as an elected official and not as an officer or employee of the City of Oshawa. Accordingly, access cannot be granted as the records are not within the custody and control of the City.

The requestor appealed the city's decision to the IPC.


Subsection 4(1) of MFIPPA provides 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 a municipality unless one of the statute's exceptions apply.

The issue considered by the IPC in this decision was whether the email was "in the custody" or "under the control" of the city under subsection 4(1) of MFIPPA.


In Order MO-3281, the IPC determined that records held by municipal councillors may be subject to an access request under MFIPPA in two situations:

  • where a councillor is acting as an "officer" or "employee" of the municipality, or is discharging a special duty assigned by council, such that they may be considered part of the institution; or
  • where, even if the above circumstances do not apply, the councillor's records are in the custody or under the control of the municipality on the basis of established principles.

Previous decisions and orders from the IPC have consistently determined that some records to or from municipal councillors are not records that are necessarily subject to disclosure. These determinations, while consistent, have attempted to justify the refusal to disclose on various disparate grounds. Despite the principles underlying the right to disclosure of information which provides that municipal records should be available to the public and that any exceptions should be limited and specific, the IPC has enunciated that "personal," "constituency" and "political" records are not subject to disclosure (none of these types of records are expressly set out in any exemptions under MFIPPA).

Many decisions have held that councillor records are not in the custody and under the control of the municipality because municipal councillors are not considered employees or officers of the municipality. Where a councillor may be acting as an officer or employee of the municipality, however, related records may become subject to disclosure.

In this case, the IPC found the councillor was not acting as an employee or officer of the city at the time in question and could not, therefore, be considered to be part of the city. As such, the IPC turned its analysis to whether the email was in the custody or under the control of the city on the basis of established principles.

In conducting this analysis, the IPC considered the test for "custody or control" set out in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306:

(1) Do the contents of the document relate to a city matter?

The IPC found that the record related to a city matter. In making this determination, the IPC determined that the creation of the record at issue played an integral part in council's decision to retain the investigator.

(2) Could the city reasonably expect to obtain a copy of the document upon request?

The IPC placed considerable weight on the circumstances surrounding the use and creation of the record. The IPC noted that the records contained, in effect, negotiations between the councillor and the investigator relating to the city's potential hiring of him and that this related directly to the city's mandate and functions. The IPC further found that the city relied on the record in order to secure the engagement of the investigator. Given those circumstances, the IPC found that the city could reasonably expect to obtain a copy of the email from the councillor upon request. As such, the IPC found the email record was under the city's control within the meaning of subsection 4(1) of MFIPPA.

The IPC specifically distinguished this case from Order MO- 28421 in which it refused to order the disclosure of councillor communications exploring the possibility of bringing an NFL team to Toronto. The IPC noted that in that case the records in question related to a city matter that was speculative or hypothetical whereas here, the hiring of the investigator was contingent on a vote of council members that was imminent. The IPC found that another significant difference was the fact that the record in the present case related to an agreement that materialized, noting that mere hours after the councillor sent the email, council made the decision to hire the investigator. The logic of both determinations can be certainly questioned.

Based on the above, the IPC ordered the release of the email.

The determination in Order MO-3281 marks a significant departure from past decisions of the IPC which have, to date, refused to treat councillor emails as records within the custody and control of the municipality. Whether this decision signals a shift in IPC policy is yet to be seen but councillors should be advised that emails relating to municipal business, whether sent from a municipal account or a private account, may no longer be protected from disclosure.


1 This problematic decision was analyzed by John Mascarin in "Sheltering Council Records from Disclosure," 6 D.M.P.L. (2d) (April 2013) No. 4, pp 1-7.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.