Casual Legal: FOIPP – What IS and IS NOT private?

By Maddison Croden
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

Municipalities are local public bodies subject to requests from members of the public under the Freedom of Information and Protection of Privacy Act (the “FOIPP Act”).

The FOIPP Act is intended to allow individuals to access information that is under the custody or control of a public body, but concerns can arise when employees use government-issued electronic devices and communications systems to send messages which are personal in nature. Are these messages also captured by the FOIPP Act and therefore subject to disclosure?

The FOIPP Act, subject to exemptions contained in the Act, applies to all records under the custody or control of a public body. Custody refers to physical possession of the record, while control refers to the authority of a public body to manage the record, including restricting, regulating, and administering its use and disclosure. In order for the FOIPP Act to apply, a public body need only custody OR control.

Numerous factors are relevant in determining whether a public body has custody or control of a record, including:

• who created the record
• the purpose for which the record was created
• who possesses the record
• whether the record was created or used in the course of employment
• whether the record has been relied upon by the municipality
• whether the municipality has can manage or dispose of the record either because it has been voluntarily provided by the creator or is pursuant to a condition of employment.

No one factor is determinative of the issue of custody or control. The more that a record pertains to an individual’s role with a municipality, the more likely it is that the record will be subject to the FOIPP Act. Similarly, contractual or employment policy documents which provide a municipality with the authority to demand text messages or emails from employees will make it more likely that the emails or messages are under the custody and control of the municipality.

That said, the Privacy Commissioner has made clear that it is unreasonable for emails belonging to a private individual to be subject to access by members of the public merely because they are sent or received on a government-owned email server. Something more may be required to engage the FOIPP Act.

Ultimately, determining the degree of custody or control a public body has over records contained in personal emails or mobile phones will depend on the circumstances, including the nature of the records, the terms of employment, or other legal or contractual obligations.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to reach Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.