Between two terms

This post was originally published in collaboration with Maciej Lipinski, who has since moved on from his role at KPMG in Canada.

What happens when a community member makes a freedom of information request seeking disclosure of trustees’ notes, emails and other communications? Does the role of trustees as public servants under the Education Act require this level of disclosure?

As with many legal issues, the answer is that it depends.

In our last post, first in a two-part series, we began an exploration of the role of the public school trustee with a look at their basic roles and responsibilities in light of a recent Ontario Court ruling. In this post, we’ll take a look at the tension between freedom of information and privacy as it pertains to school trustees.

A balancing act
As its name suggests, the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) balances two purposes: (1) protecting privacy and (2) ensuring freedom of information. That balance is generally struck by protecting personal information and information supplied in confidence as private, while treating many government records as being subject to different degrees of public access.

Public school boards are among the institutions governed by MFIPPA, making their records subject to freedom of information requests by members of the public. MFIPPA generally provides a school board with 30 days to respond to such requests.

Subject to certain exceptions, a school board record will be subject to disclosure if:

1. It exists (i.e., school boards are generally not required to create records to respond to a disclosure request).
2. It is in the custody and control of the school board.
3. It is not subject to an exemption or exclusion under MFIPPA (e.g., discretionary exemptions apply to draft bylaws and to records subject to solicitor-client privilege).

When it comes to the notes and other recorded communications of school board trustees, a school board’s obligation to disclose such records may come down to whether the records are properly considered to be in the custody and control of the school board. One case addressed by the Ontario Information and Privacy Commissioner (IPC) directly considered this issue. It involved an access to information request seeking disclosure of a school board’s records related to the selection of a new trustee. The requested communications included private emails between school board trustees that concerned the selection process.

Finding that these private emails were not in the custody or control of the school board, the IPC denied the request. In the course of its decision, however, the IPC noted that this was a fact-specific finding and that trustees’ private emails, notes and other communications could be subject to public disclosure under MFIPPA in other circumstances. As guidance for determining whether trustees’ private notes and communications are subject to disclosure, the IPC’s decision stated that the following factors should be considered:

• Was the record created by an officer or employee of the institution?
• What use did the creator intend to make of the record?
• Does the institution have a statutory power or duty to carry out the activity that resulted in the creation of the record?
• Is the activity in question a “core,” “central” or “basic” function of the institution?
• Does the content of the record relate to the institution’s mandate and functions?
• Does the institution have physical possession of the record, either because it has been voluntarily provided by the creator or pursuant to a mandatory statutory or employment requirement?
• If the institution does have possession of the record, is it more than “bare possession”?
• If the institution does not have possession of the record, is it being held by an officer or employee of the institution for the purposes of his or her duties as an officer or employee?
• Does the institution have a right to possession of the record?
• Does the institution have the authority to regulate the record’s content, use and disposal?
• Are there any limits on the use to which the institution may put the record? If so, what are those limits and why do they apply?
• To what extent has the institution relied upon the record?
• How closely is the record integrated with others held by the institution?
• What is the customary practice of the institution and similar institutions in relation to possession or control of records of this nature, in similar circumstances?

Keeping the record straight
As the considerations above illustrate, there is no single answer to whether the notes and communications of a school board trustee will be subject to public disclosure under MFIPPA. Instead, it depends.

For boards of trustees and their individual trustees, however, a number of best practices can be drawn from the disclosure-related factors set out by the IPC:

1. Establish policies for record-keeping to set out what sorts of records trustees are expected to make, and where these records should be kept.
2. Make appropriate use of available tools such as in-camera meetings and solicitor-client privileged discussions with legal counsel to address confidential matters.
3. Maintain communication channels intended for school board business that may be subject to public disclosure.

In general, such best practices should be designed to ensure readiness for addressing freedom of information requests, and to demonstrate public accountability in line with the Education Act.

For assistance in navigating these legal requirements, contact KPMG Law’s Education Team to book an information session to address your questions or concerns.