INTERIM ORDER PO-4640-I

Appeal PA24-00046

Ministry of Municipal Affairs and Housing

April 15, 2025

Summary: This interim order is one of two orders being issued together that arise in similar appeals. In both orders, the adjudicator considers the issue of the Ministry of Municipal Affairs and Housing’s control over personal emails in the possession of a former employee.

A media reporter asked the ministry for access under the Freedom of Information and Protection of Privacy Act  to personal emails of the former minister’s Chief of Staff relating to the Greenbelt amendment. The ministry provided some emails but the reporter believes that additional records ought to exist and appealed the ministry’s decision. The ministry takes the position that any additional records are not within its custody or control.

In this order, the adjudicator finds that the records the reporter is seeking, if they exist, are within the ministry’s control. The adjudicator orders the ministry to assert its control of the records by directing the former employee to identify and provide any responsive records to the ministry. The adjudicator reserves her findings on the reasonableness of the ministry’s searches.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31, sections 10(1)  and 10.1 , Public Service of Ontario Act, S.O. 2006, c. 35, Sch. A , Archives and Recordkeeping Act, S.O. 2006, c. 34, Part III, section 15.

Orders Considered: Orders MO-3808, MO-3281, MO-3467, MO-1251, PO-4449-I and PO-4505-F.

Cases Considered: Canada (Information Commissioner) v. Canada (Minister of National Defence) 2011 SCC 25 (CanLII), [2011] 2 SCR 306, Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) [2024] SCC 4, Ontario Criminal Code Review Board v. Hale 1999 CanLII 3805 (ONCA)

Report Considered: Special Report on Changes to the Greenbelt, Office of the Auditor General, August 2023.

OVERVIEW:

[1] This interim order and interim order PO-4639-I are two decisions arising from similar appeals that are being issued together. Both orders address the issue of an institution’s control over records in the possession of a former employee.

[2] This interim order addresses whether personal emails of the former Minister of Municipal Affairs and Housing’s (the former minister’s) Chief of Staff relating to the Greenbelt amendment are within the custody or under the control of the Ministry of Municipal Affairs and Housing (the ministry).

[3] A media reporter made a request under the Freedom of Information and Protection of Privacy Act  (the Act ) for the following:

All emails sent to and from the personal email address of [the former minister’s Chief of Staff] related to changes being made to the Greenbelt, whether the changes are proposed, prospective or final. I am seeking any Greenbelt-related emails from any source, including but not limited to lobbyists, registered or not; lawyers working on behalf of housing developers; housing developers themselves; and government colleagues, whether political or non-political.

[4] In the request, the reporter stated:

I appreciate it is unusual to seek records from a government employee’s personal email address, but as the Auditor General noted in her “Special Report on Changes to the Greenbelt”, “it is important to note that any communication between lobbyists and political staff about government business is still subject to [the Act ], and is not excluded from this act even if the communication occurred on a personal email account”. Time frame: September 1, 2022 to November 30, 2022.

[5] The ministry conducted a search and identified 67 pages of emails and attachments responsive to the request in the Ontario.ca email account of the former minister’s Chief of Staff. The ministry decided to grant the reporter partial access to the emails citing the exemptions in section 14(1)(i) (security) and 21(1) (personal privacy) of the Act .

[6] After reviewing the released records, the reporter wrote to the ministry stating that he believes that additional records ought to exist. The ministry responded stating that the released records “are the only responsive records that are in the custody and control of the ministry.”

[7] The reporter (now appellant) appealed the ministry’s decision to the Information and Privacy Commissioner of Ontario (the IPC). The appeal was transferred directly to the adjudication stage of the appeal process for determination of the issue of the reasonableness of the ministry’s search and the related issue of whether any additional responsive records are within the ministry’s custody or control.

[8] I decided to conduct an inquiry and invited and received representations from the ministry and the appellant. In addition, I identified the former minister’s Chief of Staff as a party whose interests may be affected by the determination of the issues in the appeal (the affected party). Accordingly, I invited and received representations from the affected party.

[9] I have decided to bifurcate the issues in this appeal. In this interim order, I dispose of the single issue of whether the records the appellant is seeking are in the ministry’s custody or control.

[10] For the reasons that follow, I find that responsive records, if they exist, are within the ministry’s control for the purposes of the Act . Accordingly, I order the ministry to assert control over the responsive records and to direct the affected party to provide the ministry with any responsive emails that exist on the affected party’s personal email account.

[11] I remain seized of this appeal and reserve my findings on the issue of the reasonableness of the ministry’s searches.

DISCUSSION:

[12] The sole issue in this interim order is whether the records that the appellant is seeking are within the ministry’s custody or control. The appellant seeks records of the affected party’s personal email relating to changes to the Greenbelt plan.

[13] The ministry’s position is that it only has custody or control of the affected party’s personal emails that also exist in their Ontario.ca email account. This position has informed the ministry’s searches in response to the appellant’s request.

[14] Before I consider the reasonableness of the ministry’s searches, I must first determine whether any emails relating to the Greenbelt amendment that exist in the affected party’s personal email are within the ministry’s custody or control.

[15] For the reasons that follow, I find that any emails responsive to the appellant’s request that relate to the Greenbelt amendment and exist in the affected party’s personal email account are within the ministry’s custody or control for the purposes of the Act .

Are the responsive emails, if they exist, within the ministry’s custody or control?

[16] Section 10(1)  of the Act  provides a general right of access to records in the custody or under the control of an institution governed by the Act . It reads, in part:

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 unless…[1]

[17] Under section 10(1), the right of access applies to any record that is in the custody or control of an institution.[2] For records not in an institution’s possession, the question is whether the records are under the institution’s control.

[18] The courts and the IPC have applied a broad and liberal approach to the custody or control question.[3] In deciding whether a record is in the custody or control of an institution, the IPC has identified several factors to be considered in context and in light of the purposes of the Act .[4]

[19] In Canada (Information Commissioner) v. Canada (Minister of National Defence)[5], the Supreme Court of Canada adopted a two-part test on the question of whether an institution has control of records that are not in its physical possession:

1. Do the contents of the record relate to a departmental matter?
2. Could the government institution reasonably expect to obtain a copy of the document upon request?

[20] Where an individual or organization other than an institution holds the record, there are additional factors that may be relevant, including:

• the reasons why the individual has physical possession of the record and not the institution[6],
• the circumstances around the creation, use and retention of the record[7]and ownership of the record[8],
• any arrangement giving an institution an express or implied right to possession or control of the record[9],
• customary practices of the individual who created the record and others in similar circumstances[10],
• whether the individual who created the record has refused to provide the institution with a copy[11]and
• whether a finding that a record is outside the institution’s control would undermine the purposes of the Act . [12]

Ministry’s representations

[21] The ministry’s position is that it only has custody or control of records of the affected party’s personal emails that also exist in their Ontario.ca email account. Its position is that any responsive records that may exist solely in the affected party’s personal email account are not in its custody or control.

[22] The ministry acknowledges that as a general rule, records that are not within its custody may still be under its control for the purposes of section 10(1)  of the Act . However, the ministry submits that applying the two-part test from National Defence, confirms that any responsive records that may exist in the affected party’s personal email account are not in its control.

[23] Regarding the first part of the National Defence test, the ministry acknowledges that any emails concerning the Greenbelt project in the affected party’s personal email account, if they exist, could relate to a “departmental matter”. However, the ministry states that it is unknown whether such records exist and therefore whether the first part of the test is met.

[24] In answering the second part of the National Defence test, the ministry states that three factors are relevant: (i) the substantive content of the record,[13] (ii) the circumstances in which it was created and (iii) the legal relationship between the institution and the record holder.

[25] The ministry submits that there is no information available about the circumstances in which any additional records were created.

[26] The ministry cites Order MO-3808 in which the IPC found that an institution could not reasonably expect to obtain a copy of a record upon request because, in part, the record had not been integrated into the institution’s records. The ministry states that it has disclosed to the appellant the emails sent to or from the affected party’s personal email account and an Ontario.ca email account. The ministry submits that any additional records that exist in the affected party’s personal email account are not integrated with ministry record holding and it could not therefore reasonably expect to obtain copies on request.

[27] Regarding the legal relationship between the ministry and the affected party, the ministry states that “at the relevant time” the affected party was employed in a senior position in the former minister’s office. The ministry states that the employment relationship came to an end in August 2023.

[28] The ministry states that any responsive records that might exist in the affected party’s personal email may have been created during their employment in the minister’s office and as a result of their involvement in the Greenbelt project.

[29] The ministry submits that the employment relationship is informed by requirements set out in the applicable employment statutory framework, policies and practices, including those that applied during the relationship and those that “continue to bind the parties following the [affected party’s] resignation”. It is the ministry’s position that having regard to this statutory framework, and applicable policies and practices, a senior ministry official would not be able to obtain a copy of responsive records.

[30] First, the ministry submits that the statutory framework that governs employment relationships generally in Ontario[14] does not establish rules pertaining to the safekeeping of employer records by employees or the processes to ensure the return of work products to the employer. Second, the ministry states that employees in ministers’ offices are bound by policies and guidelines related to record keeping and the use of information technology that prescribe acceptable use of non-Ontario.ca email accounts by employees. However, the ministry’s position is that there is limited recourse available if it is discovered after the employment relationship has ended that an employee has not adhered to these standards. In these circumstances, the ministry submits that it could not reasonably expect to obtain copies of additional responsive records given the nature of its legal relationship with the affected party.

[31] With reference to the additional factors that may be relevant to the determination of control where an individual other than an institution holds the record, the ministry submits that the following factors are relevant in this appeal:

1. who has the records in their possession and why are they not in the ministry’s possession?
2. are there any contractual provisions between the institution and the individual who created the records that gives the institution an express or implied right to possess or otherwise control the records? and
3. to what extent, if any, should the fact that the individual who created the record refuses to provide the institution with a copy determine the control issue?

Possession of any responsive records

[32] The ministry cites Order PO-2306 to support its position that the records, if they exist, are not in its possession. In that appeal, the adjudicator found that the fact that records had never been in the institution’s physical possession and it had no legal right to possession, weighed in favour of finding that the records were outside the institution’s control. The ministry submits that applying the same approach in this appeal, any additional responsive records in the affected party’s personal email account would never have been in the ministry’s physical possession.

Contractual provisions giving an express or implied right to possession or control

[33] The ministry cites Order MO-4206 to support its claim that there are no contractual provisions between it and the affected party that would give the ministry a right to possession. In that appeal, the adjudicator found that records were not in the custody or control of the institution as, in part, there was no evidence supporting the existence of contractual provisions which would give the institution an express or implied right to possess the records. The ministry’s position is that there is limited recourse available to it when it discovers after termination of the employment relationship that during their employment an employee has not adhered to its policies and guidelines for the prescribed use of non-Ontario email accounts.

The affected party’s refusal to provide records upon request

[34] The ministry also cites Order MO-3467 in which the adjudicator found that the institution had control of the record because, in part, it was unlikely that the record holder would refuse to provide a copy of the record upon request.

[35] Applying this approach to this appeal, the ministry states that despite having been asked, the affected party has twice refused to provide copies of any responsive records that may exist in their personal email account. The ministry submits that this refusal, coupled with the lack of a legal mechanism to compel production of any records, should weigh heavily in finding that it does not have control of any additional responsive records.

Affected party’s representations

[36] The affected party’s representations do not address the issue of the ministry’s custody or control of any responsive records that may exist in the affected party’s personal email account.

Appellant’s representations

[37] The appellant relies upon Order MO-3281 where the adjudicator found that an email record sent from the personal email account of a city councillor was within the city’s custody or control. The appellant states that the adjudicator made this finding notwithstanding that, in that appeal, the councillor was not part of the city for the purposes of the Act and the city stated that it could not legally compel the councillor to produce the email. The appellant submits that the adjudicator nonetheless found that the National Defence test was satisfied because the email record related to a city matter and the city could reasonably expect to obtain a copy of the record upon request.

Ministry’s reply representations

[38] In response to the appellant’s reliance on Order MO-3281, the ministry distinguishes the record at issue and circumstances in that appeal from this appeal. The ministry’s position is that in reaching her finding that the National Defence test was met, the adjudicator in Order MO-3281 relied heavily on the content of the email at issue.

[39] The ministry submits that the adjudicator determined that the city could reasonably expect to obtain a copy of the email by placing considerable weight on the circumstances surrounding its creation and use, the fact that it related to the city’s mandate and functions, the use the former councillor intended to make of the email and the extent to which the city relied upon it.

[40] The ministry states that in contrast, in this appeal, it is not aware of any additional responsive records. The ministry submits that accordingly it is “impossible to speak to” considerations such as the content of any potential records, the circumstances in which they would have been created or used, whether any potential records related to its mandate or functions or the use that the affected party intended to make of those records. The ministry states that as it is unaware of any additional responsive records, it would not have relied heavily upon such records.

[41] The ministry submits that in Order MO-3281, the city had possession of the email at issue because the former councillor provided a copy. The ministry submits that in the present appeal, it is not in possession of any additional responsive records and it continues to rely on the affected party’s refusal to provide any such records to submit that the second part of the National Defence test is not met.

Affected party’s reply representations

[42] I shared the appellant’s representations with the affected party and invited them to respond to the appellant’s submission that any additional records responsive to the request are within the ministry’s custody or control. The affected party stated that they had nothing further to add to their initial representations.

Analysis and findings

[43] For the reasons that follow, I find that any responsive records sent to or from the affected party’s personal email that relate to the Greenbelt amendment, if they exist, are in the ministry’s custody or control.

[44] To be clear, I draw a distinction between any records of emails responsive to the appellant’s request and records of the affected party’s private email communications. Previous orders of the IPC have found email records not to be within an institution’s custody or control where they are private communications unrelated to government business or dealing with matters unrelated to institution matters, its mandate, functions or business.[15] In this appeal, any records responsive to the appellant’s request would have to be related to the Greenbelt amendment and not private communications.

Statutory interpretation of section 10(1)

[45] As noted above, section 10(1) provides a general right of access to records in the custody or under the control of an institution. There is an intended distinction between custody and control. An institution that has control of a record may not have it in its custody; and an institution with custody of a record may have very limited rights of control.[16] The right of access applies to a record that is in an institution’s custody or under its control, it does not need to be both.[17]

[46] The guiding principle of statutory interpretation is that “the words of an Act  are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act and the intention of [the Legislature]”.[18]

[47] Section 1  of the Act  sets out its purposes, which include providing a right of access to information under the control of institutions in accordance with prescribed principles. One of those principles is that information should be available to the public.

[48] In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner)[19] the Supreme Court recently stated that

Access to information promotes transparency, accountability and meaningful public participation. Without adequate knowledge of what is going on, legislators and the public can neither hold government to account nor meaningfully contribute to decision making, policy formation, and law making. In this way, FOI legislation is intended not to hinder government but to “improve the workings of government” by making it “more effective, responsive and accountable” to both the legislative branch and the public.

[49] The factors for determining whether records are within the control of an institution must be considered with this purpose in mind.

[50] In National Defence, the Supreme Court of Canada considered the concept of “control” in the context of freedom of information legislation. As the majority stated:

As “control” is not a defined term in the Act , it should be given its ordinary and popular meaning. Further, in order to create a meaningful right of access to government information, it should be given a broad and liberal interpretation. Had Parliament intended to restrict the notion of control to the power to dispose or to get rid of the documents in question, it could have done so. It has not. In reaching a finding of whether records are “under the control of a government institution”, courts have considered “ultimate” control as well as “immediate” control, “partial” as well as “full” control, “transient” as well as “lasting” control, and “de jure” as well as “de facto” control. While “control” is to be given its broadest possible meaning, it cannot be stretched beyond reason. Courts can determine the meaning of a word such as “control” with the aid of dictionaries. The Canadian Oxford Dictionary defines “control” as “the power of directing, command (under the control of)” (2001, at p. 307). In this case, “control” means that a senior official with the government institution (other than the Minister) has some power of direction or command over a document, even if it is only on a “partial” basis, a “transient” basis, or a “de facto” basis. The contents of the records and the circumstances in which they came into being are relevant to determine whether they are under the control of a government institution for the purposes of disclosure under the Act .[20]

[51] The circumstances of the National Defence case are distinguishable from this appeal as the federal  Access to Information Act  does not govern records held in minister’s offices. However, when considering an institution’s control of records not in its possession for the purposes of the Act , the IPC and the courts[21] have consistently adopted the National Defence two-part test and this statement about the meaning of control is helpful in the present analysis.

[52] I agree with the court’s statement that in the absence of a statutory definition, the concept of “control” must be given a broad and liberal interpretation consistent with the purpose of the Act  to create a meaningful right of access to government information.

[53] I now turn to the National Defence test.

Step One: Records relating to a department matter

[54] Notwithstanding the ministry’s argument that the appellant’s position regarding the existence of additional responsive records is speculative, the ministry appears to concede that any additional responsive records, if they do exist, would meet the first part of the National Defence test.

[55] The application of the National Defence test in appeals where the issue is whether additional records that a requester asserts ought to exist are within an institution’s control, does not require the requester to prove the existence of such records. In these types of appeals, the IPC has consistently applied the National Defence test on a hypothetical basis to ask: do the contents of the records, if they exist, relate to a department matter?[22] I adopt this approach in this appeal.

[56] The appellant’s request is for emails “related to changes being made to the Greenbelt.” The government’s decision to amend the Greenbelt is a department matter.

[57] The appellant seeks records relating to a specific subject matter and that subject matter is a department matter. Accordingly, I find that additional responsive records, if they exist, meet the first part of the test.

Step Two: Reasonable expectation that records will be produced upon request

[58] Regarding the second part of the test, the court in National Defence stated:

Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The Commissioner is correct in saying that any expectation to obtain a copy of the record cannot be based on “past practices and prevalent expectations” that bear no relationship on the nature and contents of the record, on the actual legal relationship between the government institution and the record holder, or on practices intended to avoid the application of the [Act] … The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption. In applying the test, the word “could” is to be understood accordingly.[23]

[59] Adopting this approach, I do not agree with the ministry’s submission that the affected party’s refusal to produce records, coupled with the ministry’s purported inability to compel production, lead to the conclusion that a senior official at the ministry could not reasonably expect to obtain copies upon request. As the court states, the test is whether a senior official “reasonably should” be able to obtain the requested records. The reasonable expectation test is objective and all relevant factors must be considered.

[60] The relevant factors to consider in this appeal are: (i) the circumstances in which the emails were created, (ii) the ministry’s relationship with the affected party; and (iii) the ministry’s ability to compel production of the emails. As I will explain below, I am not persuaded that the affected party’s refusal to produce emails to the ministry to date is a relevant factor in the control analysis.

Circumstances in which the emails were created

[61] For the reasons that follow, I find that the circumstances in which any emails sent to or from the affected party’s personal email relating to the Greenbelt amendment is a factor that supports a finding that the ministry reasonably should be able to obtain the emails upon request.

[62] The ministry submits that the circumstances in which any additional responsive emails were created are unknown. I do not agree.

[63] In my view, the parameters of the appellant’s request provide information about the circumstances in which responsive records were created. The appellant’s request is the affected party’s personal emails relating to the Greenbelt amendment. The request is also for records from a specified time period (from September 1, 2022 to November 30, 2022). During that time period, the affected party was employed in the former minister’s office and was provided with an Ontario.ca email account as an OPS employee of the Ontario Public Service (OPS).

[64] The records already disclosed by the ministry to the appellant also provide information about the circumstances in which any additional responsive records were created. The released records relate to communications between political staff and external parties about lands being considered for removal from the Greenbelt. From my review of these records, they were created as part of communications between political staff and external parties during the process that led to the government’s decision to amend the Greenbelt.

[65] I do not accept the ministry’s submission that because it is not aware of the existence of any additional responsive records, it could not have relied upon them. The affected party, in their role as the former minister’s Chief of Staff, communicated with external parties in relation to the Greenbelt amendment as a ministry employee. In these circumstances, to the extent that the affected party relied upon these email communications during the Greenbelt project, the ministry also relied upon them vicariously as the affected party’s employer.

[66] Regarding the lack of integration of the affected party’s personal emails with ministry records, the ministry cites Order MO-3808. In that appeal, the adjudicator found that the institution could not reasonably expect to obtain a copy of the sought records, in part, because the records had not been integrated with the institution’s records. The ministry states that any responsive emails held on the affected party’s personal email account and not also in their Ontario.ca email account are not integrated into ministry record holdings. The ministry submits that this indicates the ministry’s lack of control.

[67] I disagree with the ministry’s submission. Order MO-3808 concerned city councillor records and not records created by an institution’s employee in the course of their employment. In that appeal, the requester sought access to the councillor’s briefing notes and email records that the adjudicator found were the elected councillor’s “political” or “personal” records, as distinct from records created in circumstances where a councillor might be considered to be an officer or employee of the city. The evidence of the city in that appeal was that the councillor’s political records were not integrated with the city’s records and that the city’s practice with respect to those private records was consistent with the IPC’s published guidance.

[68] In contrast, the subject matter of the appellant’s request relates to proposed changes to the Greenbelt plan, which is clearly a government-related matter. The decision-making process for the selection of land for removal from the Greenbelt was the subject of a report of the Office of the Auditor General of Ontario. In the report, the Auditor General observed that political staff inappropriately used personal email to conduct government-related work, contrary to applicable government policy.[24] As the appellant notes in the request, the Auditor General observed the following:

According to the Ontario Public Service (OPS) Securing Your Workplace Guidebook and the Information and Information Technology (I&IT) resource guidelines, forwarding government information to personal accounts is not appropriate because of cybersecurity concerns. It also outlines that using non-government resources to conduct government business is unacceptable.

Under the OPS Acceptable Use I&IT Guidelines “only the work email account (e.g. @Ontario.ca) should be used for government work.” The use of non-OPS managed platforms and services including Zoom for government work also requires prior approval […][25]

[69] The Auditor General’s observations reflect the IPC’s published guidance that strongly guards against the use of personal email accounts by public servants.[26]

[70] The IPC guidance expressly requires institutions to develop clear and consistent policies on the appropriate use of communications tools and that these should, among other things:

• identify which instant messaging tools and email accounts are permitted for business-related communications, and clearly prohibit the use of other tools and accounts;
• require staff to immediately, or within a reasonable time, copy records to their official or authorized email account or the institution’s computer or network;
• inform staff that all business-related communications are subject to disclosure and retention requirements, regardless of the tool, account or device used, and that they will have to provide a copy of all business-related communications upon request; and
• remind staff that when they are collecting records in response to an access to information request, they must search for and produce any relevant records from instant messaging and personal email accounts.[27]

[71] The IPC guidance also states that having policies in place is not enough. Institutions must also train their staff on an ongoing basis and monitor for compliance, including conducting “spot-checks, surveys of staff practices, or other reviews” and in the event institutions think staff are not complying, they must “take immediate action to preserve the records and prevent further loss of information.”[28]

[72] These practices are consistent with earlier findings of IPC’s investigation into the record management practices of political staff, in which the IPC reinforced the need for institutions to properly execute record retention schedules, as required by the ARA, and to ensure compliance with those schedules by all staff.[29]

[73] These practices are also aligned with the principles underlying Order PO-4449-I that required the ministry to take steps to preserve records relating to the Greenbelt in light of the Auditor General’s observations regarding the use of personal email by political staff.

[74] In my view, the lack of integration of records is not an indicator of the ministry’s lack of control in this appeal. If responsive emails exist in the affected party’s email account that have not been forwarded to their Ontario.ca email, this lack of integration with ministry records is inconsistent with acceptable record management practices. A finding that records deliberately kept separate from the ministry’s record holdings are outside the ministry’s control would be inconsistent with the purposes of the Act .

[75] Accordingly, I find that the circumstances in which responsive emails were created indicate a reasonable expectation that they should be produced upon request by a senior ministry official.

Legal relationship between the ministry and the affected party

[76] The legal relationship between the ministry and the affected party is a relevant factor in determining control of responsive emails. At the time the emails were created, the parties were in an employment relationship. The ministry has not provided me with any contract, code of conduct or the policies governing the employment relationship. I note the OPS policies referred to by the Auditor General would apply to the affected party as a ministry employee. The ministry refers to these policies in its confidential correspondence with the affected party.

[77] However, in my view it is not necessary to consider the specific terms of the relationship. Rather, it is the type of relationship that is relevant to the control analysis. The control over work product in the employment context is in contrast to relationships where records are created by an individual acting in an independent capacity, for example, working papers created by an investigator appointed by an institution,[30] a report prepared by an independent consultant[31] or records existing in a third party construction company holdings.[32] In these relationships the fact that the record holders are not acting in an official or employee capacity weighs against the records being in the institution’s control.

[78] Conversely, the type of legal relationship is not wholly determinative of the control issue either. The appellant relies upon Order MO-3281 in which the adjudicator found that a personal email of a city councillor was within the city’s control, notwithstanding that the city councillor was neither employed by nor an officer of the city. In that appeal, as the appellant submits, the content of the email and its close nexus to the city’s mandate and functions were strong indicators that the email was within the city’s control.

[79] The affected party created the emails that the appellant is seeking, if they exist, in their capacity as a senior member of ministry staff and in the course of their duties in that role. In this type of relationship, there is a reasonable expectation of control by the employer over their employee’s work product. On an objective basis, I find it reasonable to expect that an employee, when asked by their employer, will produce emails created in the course of their employment and relating to their employer’s business. I am not persuaded that this expectation is diminished when the employment relationship ends.

[80] The affected party was employed by the ministry as a public servant. The Public Service of Ontario Act, 2006 sets out rights and duties of public servants concerning their ethical conduct. These duties include oaths of office and affirmations of ethical practices to be taken by public servants. Given the nature of the public service employment relationship, which includes prescribed standards of ethical conduct, it is reasonable to expect that a public servant’s cooperation with their employer extends beyond the termination of the employment relationship. In my view, this expectation reasonably includes a public servant cooperating to produce for the ministry records created during the period of public service and relating to government business.

Ministry’s ability to compel production of records

[81] It is beyond the scope of this appeal to make specific findings about the legal recourse that may be available to the ministry to pursue the return of a former employee’s work product, however it is relevant to the control analysis. The ministry submits that its recourse is limited in circumstances where it is discovered that an employee has not adhered to acceptable standards regarding the use of personal email to conduct government business after the employment relationship is terminated. I note that the ministry submits both that it has limited recourse in these circumstances and that no legal mechanisms exist to compel production of responsive records.

[82] The IPC has consistently held that the existence of a contractual arrangement between an institution and the individual who created the record at issue, that gives the institution an express or implied right to possess or control the record, is relevant to the determination of the issue of control under the Act .[33] This entitlement to possession recognised by the law describes de jure control. For example, a legal entitlement to possession arising from legal title or from the express or implied terms of a contract or legally enforceable agreement. De jure control is different from de facto control, which might arise from circumstances independent of the assertion of a legal entitlement to possession, for example, voluntary surrender of records.

[83] For the reasons that follow, I find that de jure control of any responsive records that exist in the affected party’s personal email account arises from the ministry’s statutory duties in relation to the maintenance and retention of public records.

[84] The ministry states that the Employment Standards Act, 2000  does not establish rules pertaining to the safekeeping of employer records by employees or processes to ensure the return of work products to the employer. The ministry’s position is that there are limitations in the statutory framework governing its employment relationship with the affected party regarding any duties that survive the termination of the employment relationship.

[85] The ministry’s position fails to acknowledge another statutory framework relevant to the records in this appeal. Specifically, the ministry has duties in relation to the maintenance and retention of public records. The Archives and Recordkeeping Act, 2006 (ARA) is a cornerstone of the right of access enshrined in the Act . The ministry is a public body within the meaning of the ARA and the “public records” created by its employees are subject to the statutory obligations relating to recordkeeping and record management practices.

[86] Part III of the ARA sets out specific duties applicable to the ministry in relation to the retention, transfer and disposition of public records. Sections 13(1) to (3) of the ARA states:

13(1) Every public body shall retain and transfer or otherwise dispose of their public records in accordance with the public body’s approved records schedule.

(2) Every public body shall ensure that their public records are preserved and that the information in their public records is accessible until they are transferred or otherwise disposed of in accordance with their approved records schedule.

(3) A public record shall not be transferred, destroyed or otherwise disposed of except in accordance with the applicable approved records schedule or with the written consent of the Archivist.

[87] Section 15 of the ARA states:

(1) A public record shall not be,

(a) destroyed or damaged;

(b) altered so as to delete information from it;

(c) made illegible;

(d) removed from the custody or control of a public body or the Archives of Ontario; or

(e) concealed from a public body or the Archivist.

[88] The provisions make it clear that the responsibility for the retention of public records and for ensuring they are not removed from the ministry’s custody or control falls on the ministry. In 2014, an institution’s duties to ensure the preservation of records within its custody or control were reinforced by the enactment of section 10.1  of the Act , which states:

Every head of an institution shall ensure that reasonable measures respecting the records in the custody or under the control of the institution are developed, documented and put into place to preserve the records in accordance with any recordkeeping or records retention requirements, rules or policies, whether established under an Act  or otherwise, that apply to the institution.

[89] An institution’s duty to maintain control over records is expressly set out in these statutory duties. It is by asserting control over records that the ministry meets the obligations to preserve and retain records and the requirement that public records not be removed from its custody or control. The corollary of this obligation is that the ministry’s failure to assert control over any responsive emails that may be held in the affected party’s personal email account, would amount to an abdication of its responsibility to maintain control over its record holdings.

[90] In Ontario Criminal Code Review Board v Hale,[34] the Ontario Court of Appeal considered the Board’s control of backup tapes created by the court reporter during hearings. The Board argued that the backup tapes were under the control of the court reporter, who was an independent contractor. The IPC found that the backup tapes were under the Board’s control and ordered it to obtain copies from the court reporter. In upholding the IPC’s decision, the court considered the Board’s argument that it should not be ordered to obtain the tapes from the court reporter because it was unable to compel the court reporter to deliver them. The court stated:

I must say I find this a rather surprising proposition. We were told that at some time in the past the Board had used employees to do what independent court reporters now do. If the Board had continued to use employees there would be no issue; the backup tapes would be in the Board’s custody and under its control. However, the Board chose to enter into arrangements with independent court reporters to meet its court reporting requirements. Assuming the court reporter now refuses to deliver the backup tapes to the Board, the Board’s failure to enter into a contractual arrangement with the reporter that would enable it to fulfil its statutory duty to provide access to documents under its control cannot be a reason for finding that the duty does not exist. Put another way, the Board cannot avoid the access provisions of the Act  by entering into arrangements under which third parties hold custody of the Board’s records that would otherwise be subject to the provisions of the Act .[35]

[91] I agree with this approach. The ministry’s failure to put in place mechanisms that ensure that employees comply with acceptable practices in respect of the use of personal email to conduct ministry business or to ensure that public records are not removed from its custody or control during or after the employment, cannot be a reason to find that those records are not subject to the provisions of the Act .

[92] These mechanisms include developing record retention schedules, approved by the Archivist of Ontario, and taking active measures to retrieve records in circumstances where it is discovered that record management practices of staff, including the use of personal email to conduct ministry business, do not adhere to acceptable policies and standards. Such measures are consistent with the practices recommended by the IPC in its guidance[36], the IPC’s investigation report into the record management practices of political staff[37] and the principles underlying Order PO-4449-I that required the ministry to take steps to preserve records relating to the Greenbelt.

[93] For these reasons, I find that the ministry has de jure control over responsive emails in the affected party’s personal email account. I am satisfied that this finding is consistent with the transparency and accountability principles that are at the foundation of statutory recordkeeping and record retention requirements applicable to ministry records.

[94] Having made this finding, I am not persuaded by the ministry’s submission that it has limited recourse available to it when it discovers after the termination of the employment relationship that an employee has not adhered to its policies and guidelines for acceptable use of non-Ontario.ca email accounts. In considering the ministry’s position, I note that it does not refer to the common law.

[95] Though it is beyond the scope of this order to make any specific determinations on the remedies available to the ministry, I take notice of the fact that applications for the return of property from a former employee can arise based on an implied duty of good faith or a fiduciary duty that survives the termination of the employment agreement[38] and the recovery of property under Rule 44 of the Rules of Civil Procedure that operates like an action in replevin.[39] These possible remedies, together with the ministry’s duties under the ARA, support the finding that the ministry has de jure control of any responsive records that may be found to exist in the affected party’s personal email.

The affected party’s refusal to produce any responsive emails

[96] I acknowledge that the affected party has not provided the requested records and I have considered the extent to which this is relevant, if at all, to the determination of the issue of the ministry’s control.

[97] The ministry relies on Order MO-3467 in which the adjudicator held that an institution had control of any records of personal emails of a former police officer created in relation to court proceedings the officer attended in the course of his work. The ministry states that the adjudicator came to this finding, in part, because it was unlikely that the former officer would refuse to provide copies on request. The ministry states that in this appeal the affected party has twice refused to provide copies of responsive records that may exist on their personal email account. The ministry submits that this weighs in favour of finding that it does not have control of any additional responsive records.

[98] I am not persuaded that the affected party’s refusal to provide the records is a relevant factor in the present analysis. In Order MO-3467, the adjudicator found that any responsive emails that might exist in the officer’s personal email would be in the police’s control. However, the adjudicator did not place great weight on the likelihood that the former officer would produce them if asked. In his reasons, the adjudicator considered the likelihood of the officer providing any emails that exist together with the substantive content of the responsive emails and the circumstances in which they were created. The adjudicator states that these latter factors were of utmost importance in that appeal. I note that in that appeal, the substantive content of any responsive emails was the officer’s attendance at court proceedings as part of their work as an officer and the records were created during the officer’s employment. I agree with the adjudicator’s approach. In my view, where records are created in the course of employment using personal email and relate to an institution’s mandate and functions, these facts are of greater significance to the control analysis.

[99] Finally, in relation to the affected party’s refusal to produce records, I have adopted the approach taken in Order MO-1251. In that appeal, the adjudicator considered whether a township had control of records relating to a study of sanitary sewage conducted by a consultant retained by the township. The adjudicator considered the fact that the consultant had refused to provide the records to the township. The township had requested the records on more than one occasion and the requests were either denied or ignored. The consultant and its sub-consultant provided reasons for refusing to provide the records. These reasons related to their undertakings of confidentiality to homeowners who participated in the study.

[100] Notwithstanding the consultant’s repeated refusal to provide the records, this factor, weighed with the other factors, led the adjudicator to conclude that the requested records were within the township’s control. The refusal to provide the records did not determine the issue, even where cogent reasons for the refusal had been provided by the record holder. I agree with this approach and adopt it in this appeal. I am not persuaded that the affected party’s refusal to provide any responsive records that might exist in their personal email is a significant factor in the control analysis.

[101] The ministry provided me with copies of its confidential correspondence with the affected party requesting that they provide any records of government business contained in their personal email. From my review of the affected party’s responses, I find they provide no cogent explanation for not cooperating with the ministry’s request.

[102] In addition, the affected party has not provided me any representations addressing this or any of the other factors relevant to the issue of the ministry’s control of records in their personal email. In these circumstances, there is no reasonable basis for the affected party’s refusal to provide any records being found to be a relevant factor in the determination of the ministry’s control.

[103] For these reasons and on the basis of the relevant factors, I find that the National Defence test is satisfied and the affected party’s personal emails that the appellant is seeking are in the ministry’s control.

Appropriate interim order

[104] I acknowledge the ministry’s representations about its efforts to retrieve any records of government business that might exist in the affected party’s personal email. However, from my review of the confidential correspondence between the ministry and the affected party, I note that the ministry’s efforts to date do not expressly assert its control over the requested records, nor does it expressly require the affected party to conduct a search and provide confirmation whether any records relating to the Greenbelt project exist in their personal email account.

[105] I note that the affected party has not cooperated by either providing the requested records or confirming or denying whether additional emails exist.

[106] The affected party has also declined to assist me in my inquiry in this appeal and to directly address whether any responsive records exist in their personal email account and the ministry’s control over any such records. In this regard, I note the IPC’s power under section 52(8)  of the Act  to summon and examine on oath any individual who may have information relating to an inquiry.

[107] In Order MO-1251, the adjudicator considered the appropriate remedy in circumstances where the record holder had repeatedly refused to produce the records at issue that the adjudicator had determined to be in the institution’s control. I adopt the approach taken in that appeal, as follows: in the first instance, I will order the ministry to assert its control over those emails responsive to the appellant’s request in accordance with my findings and to send a written direction to the affected party, directing that any such records be provided to the ministry forthwith. I will also order the ministry to direct the affected party to provide it with an affidavit confirming they have identified and provided the ministry with all emails in their possession responsive to the request.

[108] In the event that the affected party fails either to confirm in a sworn affidavit that no responsive emails exist or to comply with the ministry’s direction to produce such emails, I will order the ministry to provide me with an affidavit explaining all steps taken to enforce its direction.

ORDER:

1. I order the ministry to send written direction to the affected party to provide the ministry with any emails responsive to the appellant’s request that exist in the affected party’s personal email account. The ministry’s direction should expressly assert its control of such emails in accordance with the findings in this order. The ministry’s written direction should be issued no later than May 21, 2025, but no earlier than May 7, 2025 and should require delivery of any responsive records by the affected party no later than June 11, 2025.
2. In the event that the affected party fails to comply with the ministry’s direction by June 11, 2025, I order the ministry to provide affidavit evidence of the steps taken to enforce the direction.
3. In the event that the affected party provides affidavit evidence by or before June 11, 2025 in response to the ministry’s direction stating that no emails responsive to the appellant’s request exist in their personal email account, the ministry shall provide me with a copy of the affected party’s affidavit.
4. In the event that the affected party provides any emails in response to the ministry’s direction, I order the ministry to issue an access decision to the appellant in respect of those emails, in accordance with the requirements of the Act , treating the date of this interim order as the date of the request.
5. I order the ministry to provide me with copies of the following:

1. The written direction referred to in provision 1 above;
2. Any affidavit evidence from the affected party stating that no responsive emails exist in response to the ministry’s written direction referred to in provision 3 above;
3. Any emails from the affected party in response to the ministry’s written direction referred to in provision 4 above; and
4. The ministry’s access decision referred to in provision 4 above.

6. I remain seized of this appeal in order to verify compliance with provisions 1 to 5 above and to dispose of the outstanding issues in the appeal.

Original Signed by:		April 15, 2025
Katherine Ball
Adjudicator