Law Times

Law Times • February 29, 2016 Page 5 www.lawtimesnews.com Decision will be used in crafting future decisions: lawyer Privacy commissioner e-mail ruling sets new precedent BY NEIL ETIENNE Law Times A n order by the Information and Privacy Commission- er is being called precedent- setting by legal professionals, after it led the City of Oshawa to release a councillor's e-mail sent from her personal device and her private ac- count. "The historical position of the IPC with respect to records of a council member have been quite honestly a little bizarre," says John Mascarin, a partner with Aird & Berlis LLP and member of the firm's municipal and land use planning group, who has written a number of articles on the dis- closure of councillor records in the past. "I've lamented the fact the IPC was proceeding from a very f lawed analysis on how it would look at these things. Under Sec- tion 1, it states the purpose of the Municipal Freedom of Informa- tion [and Protection of Privacy] Act is to provide a right of access to information held under the control or custody of a munici- pality," he explains. "There is no specific exemption that says the records of a council- lor shall not be subject to disclo- sure, and yet the IPC rulings have been consistent throughout time, but they've all been wrong, in say- ing a councillor's records are not subject to disclosure." Mascarin says the Oshawa ruling "f lies in the face" of similar matters ruled on by the IPC and comes much closer to the spirit of the access to information rules. "How can you divorce the elected official from the actual institution? To me, it's a com- plete legal fiction that has been perpetuated by a whole series of decisions that, if anything, were consistent until you get to the Os- hawa decision," says Mascarin. About two years ago, the City of Oshawa found itself dealing with a public debate with its au- ditor general, Ron Foster, over allegations of wrongdoing related to the acquisition of a $5.9-mil- lion parcel of land by the city. In 2013, Foster released portions of a report that suggested the city paid almost $2 million too much for the property. In May 2013, a motion to ap- point a municipal lawyer to inves- tigate the allegations of miscon- duct on the part of city employees and departments was passed. Just hours before that meet- ing, Coun. Nancy Diamond had e-mailed the lawyer from her own personal account, using her iPad, asking for feedback on a draft motion to appoint him as the in- vestigator. A resident of the city subse- quently made a request under the Municipal Freedom of Informa- tion and Protection of Privacy Act for all communication between the councillor and the lawyer, but the city refused the request on the grounds those records were not in its custody or control. The city also argued that the councillor was not an officer or employee of the city and interac- tions between individual council- lors and members of the public "are not core, central or basic func- tions of the city as an institution." That led to an appeal to the In- formation and Privacy Commis- sioner of Ontario, which ruled that despite the communication coming from a personal device and personal account, the e-mail is under the city's custody and control. According to the Information and Privacy Commissioner's ruling, written by adjudicator Gillian Shaw: "The city submits that the record does not relate to its mandate and functions but rather to the independent and personal actions of the council- lor in the context of her personal or political activities. It submits that the councillor's interaction with the investigator was a per- sonal matter and not a core func- tion of the city. "I disagree," Shaw continued. "The record contains, in effect, negotiations between the coun- cillor and the investigator relat- ing to the city's potential hiring of him. This relates directly to the city's mandate and functions." Shaw also pointed to a highly publicized 2013 ruling by the privacy commissioner that dis- missed an access to information request to similarly sent commu- nications by Toronto city council- lor Doug Ford, related to bringing a National Football League team to the city. The IPC found the records were in the possession of the councillor and were not re- cords within custody or control of the city and also ruled Ford was not to be categorized as an employee of the city. Shaw differentiated the two matters when she wrote the To- ronto NFL matter was "specula- tive or hypothetical." "In the present appeal, while the hiring of the investigator was contingent on a vote of council members, that vote was immi- nent," Shaw wrote. "Moreover, the councillor's email played a crucial role in the negotiations resulting [in] the hir- ing of the investigator." Marvin Huberman, a certi- fied specialist in civil litigation, barrister, mediator, and arbitra- tor, says he, too, sees the ruling as precedent-setting and one that will be used in crafting decisions on similar matters in the future. "It offers clarity and an appro- priate application of the relevant principles of law and statutory provisions to the facts and cir- cumstances in that case," he says. "To me, the system worked as it was supposed to work and how it was intended to work." Mascarin says that while the ruling is a better one than previ- ous decisions by the IPC, he takes issue with differentiating the two matters and still believes ac- cess should have been granted to Ford's communications. "What difference should that make; why does it matter if a council member is or is not an employee?" he says. "It created this sort of historical legal fiction and they continued to perpetuate it. They [previous IPC rulings] were, in my view, wrong, but at least they were consistent when they kept saying a council member is not an employee and a councillor's records, therefore, do not fall in to the scope of the custody or control of [the municipality]." Mascarin says with the Os- hawa ruling, "it seems to say if something is really linked to a matter at council or is to be con- sidered by the municipality as part of their business, then that is a record that should be available to the public and there should be no exceptions that apply. "It is precedent-setting; it goes against the grain of other IPC rulings," he says. "This is such an about-face from what it was before, so I think it's really sur- prised a lot of people. I think many council members before felt they could properly have their records withheld from disclosure; now they have to worry about any e-mails they send from their per- sonal accounts on city business could possibly be required to be disclosed, so that's a huge change from before." LT NEWS Promote your law firm by ordering reprints of articles from the voice of the profession — Law Times! Reprints are great for: Been in Law Times Want a record of it • Firm promotional material • Use on your web site • Training and education • Suitable for framing $200–$250/reprint We provide a colour PDF and unlimited reproduction rights. For more information or to order reprints, please e-mail Gail Cohen at: gail.cohen@thomsonreuters.com FULLY ACCREDITED IN-CLASS PROGRAM & LIVE WEBINAR REGISTER BEFORE MARCH 25 AND SAVE $300 Course Leaders Wendy Baker, QC, Partner, Miller Thomson LLP Cathy Bate, Partner, Miller Thomson LLP The Food & Beverage Industry in Canada: The Regulatory Evolution FOOD & BEVERAGE LAWS ARE CHANGING, ARE YOU? ENVIRONMENTAL REQUIREMENTS | PUBLIC HEALTH MANDATES | RECALLS AND FRAUD Vancouver, April 26 • Toronto, April 19 • Webinar, April 19 www.lexpert.ca/cpdcentre Untitled-1 1 2016-02-25 10:40 AM John Mascarin says recent ruling related to an Oshawa councillor using her personal account and personal device 'flies in the face' of similar matters.

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