Director argued they were personal and outside the scope of the access to info law
The Office of the Information & Privacy Commissioner of British Columbia (OIPC) has ordered the British Columbia Lottery Corporation (BCLC) to release a range of email messages that were sent between the former CEO of the BCLC and one of its directors. The OIPC also found, in Order F17-20, that the BCLC had not improperly collected the director’s personal information.
In April 2010, a journalist made a very broad request for records under the province’s Freedom of Information and Protection of Privacy Act (FIPPA):
Please provide any copies of records sent between [the director] and British Columbia Lotteries Corp. board members, the Crown corporation‘s president and chief executive officer or its vice-presidents from December 10, 2005 onward.
The director was given notice as an affected third party and he objected to the disclosure of a range of emails between himself and the BCLC’s CEO. In the first round of adjudication before the OIPC, the director argued that certain of the emails were not within the BCLC’s legal custody and control. The OIPC declined to consider this issue and the director sought judicial review. The court sent the question back to the OIPC for consideration.
The OIPC’s adjudicator found, after considering relevant indicators of control (below), that the emails were under BCLC’s control for the purposes of ss. 3 and 4 of FIPPA. This is a key consideration as the statute only applies to records under the custody or control of a public body. If the records are not within the public body’s custody or control, the statute does not apply and the journalist would have no right of access. In this particular case, the adjudicator determined the question of “control” would dispose of the matter. The relevant indicators of control recited by the adjudicator include (from paragraph 26):
… whether: the record was created by an officer or employee in the course of carrying out his or her duties; the public body has statutory or contractual control over the records; the public body has possession of the records; the public body has relied on the records; the records are integrated within the public body‘s other records; the public body has the authority to regulate the use and disposition of the records; the content of the record relates to the public body‘s mandate and functions. The list of indicators is not exhaustive and not all will apply in every case.
The director claimed that the CEO (who was both a colleague and a friend) used his BCLC email account for his personal correspondence, in addition to his work correspondence and the emails between then were not created in the context of the CEO’s duties at BCLC. The adjudicator found that while the director did not view these exchanges as official communication, the CEO was not explicit in stating that he was only communicating with the director as a friend – additionally, the content of these emails were found to be related to matters arising out of the CEO’s duties. The overall purpose was the undertaking of BCLC business. In addition, the CEO created and received emails in the course of carrying out his duties at BCLC, the BCLC had statutory control over the emails in question and authority over the content, use and disposition of the emails.
As a further objection, the director argued that the records contained his personal information and should be withheld on that basis. The adjudicator found that some of the information in the director’s emails was “contact information” and therefore, could not be read as “personal information”. Some of the information, however, related to personal comments about family, friends and health so would fall into the category of “personal information”.
The director also argued that the BCLC had improperly collected his personal information: he did not volunteer his personal information to BCLC and that the CEO initiated the email correspondence which allowed BCLC to actively collect the director’s personal information. The adjudicator considered the meaning of “to collect” in the context of the statute (which also refers to “obtained or compiled” in other sections):
 Section 26 circumscribes public bodies in their acquisition of personal information, recognizing that in many situations individuals have no choice but to provide their personal information to obtain benefits or services. For example, if an individual wants a driver‘s licence or medical care, he or she is compelled to give personal information to the respective public body. Public bodies have control over this process. The term “collect” should thus, in my view, be interpreted narrowly to cover situations in which public bodies actively solicit personal information they need in order to provide those benefits or services. Thus, in my view, a public body “collects” information when it makes a conscious decision, or forms an intention, to actively seek or solicit personal information. [emphasis added]
The adjudicator did not accept the director’s argument that the BCLC actively collected his correspondence, concluding at paragraph 82 that:
…the director was under no compulsion to communicate with the CEO. … The director also voluntarily provided his personal information to the CEO when seeking the CEO’s assistance with his business matters. … I therefore find that BCLC did not “collect” the director’s personal information in the emails.
In the end, the adjudicator ordered the BCLC to disclose the emails with some redactions of personal information.