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Misuse of Government Property is Private

December 22, 2010 permalink

Rick O’Connor is the Ottawa city solicitor and also serves as a board member of Ottawa children's aid. He used computers at his city job to exchange emails with CAS. In October 2007 John Dunn realized that the emails were stored on government computers, making them accessible to the public under freedom of information laws. He requested that the city of Ottawa give him copies of the emails [1] [2] [3]. The city refused and a hearing ensued before Ontario's Information and Privacy Commissioner (IPC), which ruled in favor of Mr Dunn. The matter has now been taken to the Ontario Superior Court of Justice, where Judge Anne Molloy has reversed the ruling, making the emails private.

This unfortunate decision has implications far beyond the case of John Dunn. Every private employer that uses capital equipment has rules preventing employees from using that equipment for personal business. Don't use the company machine tools for your hobby work, don't drive the company bus for shopping, don't use the company phone for private business. With the Molloy decision, the door is open for government employees who want to use public resources for their private purposes. No one beside their immediate supervisor will ever know about it. Furthermore, from now on any civil servant with something to hide from a freedom of information request will claim that the requested material is personal. Far better to treat this in the manner of a private employer — if you use the company/government phone for private business the company/public can listen in or deliver a reprimand.

It is possible the Information and Privacy Commissioner may further appeal the decision of Judge Molloy. Public reaction may influence whether the appeal takes place. An incensed fixcas reader suggests calling: 1) the Federal Information Privacy Commissioner at toll-free: 1-800-282-1376 Phone: (613) 947-1698 or 2) the Provincial Information and Privacy Commission at 416-326-3333 (Toronto area), long distance: 1-800-387-0073 (within Ontario).



Access law does not cover personal emails stored at work

Personal emails stored on workplace computers are not covered by access to information laws, an Ontario judge has ruled.

In overturning a decision of the province's Information and Privacy Commissioner, which granted an Ottawa resident access to the personal emails of a city solicitor, Madame Justice Anne Molloy said the purpose of Ontario's access to information laws is not to provide unfettered access to any document within a government office, but rather "to enhance democratic values by providing its citizens with access to government information."

"It can be confidently predicted that any government employee who works in an office setting will have stored, somewhere in that office, documents that have nothing whatsoever to do with his or her job, but which are purely personal in nature," the judge wrote.

The case arose from a 2007 request by John Dunn to the City of Ottawa for all emails sent by the executive director of the Children's Aid Society to various CAS personnel, including Rick O'Connor, since February of that year.

Mr. O'Connor, the judgment says, volunteers as a board member with CAS, and his position there is entirely unrelated to his job as city solicitor. He kept correspondence relating to the CAS in a separate folder on the city's email server.

Ontario law states that residents may access records "under the control" of public institutions, with certain exceptions. Judge Molloy decided the City of Ottawa did not have "control" of the files.

"The Children's Aid Society is not an agency subject to freedom of information legislation," she wrote. "Mr. O'Connor, in his personal capacity, is also not subject to having his personal documents seized and passed over to any member of the public who requests them."

Source: National Post