Access to Records

Waterloo (Regional Municipality), 2017 CanLII 21449 (ON IPC)

[48] The region has stated that any records received by its staff in the capacity as property manager for the co-op remained the property of the co-op and were at all times subject to the provisions of the Co-operative Corporations Act. The region also asserts that during this time, staff performed the work at the administrative offices of the co-op under the supervision and direction of the appointed Board. I accept the region’s position regarding the authority under which regional staff were acting during the time they performed the role of property manager. I also agree that at all times the Property Manager’s records remained the property of the co-op, under the control of the co-op’s Board of Directors, and subject to the provisions of the Co-operative Corporations Act. On this basis, I am satisfied that region has no authority to regulate the co-op’s use and disposal of those records.

[49] I have also reviewed the decision of the Supreme Court of Canada in National Defence, referenced above, in which the court articulated the following two-part test for institutional control of a record:

1. whether the record relates to a departmental matter, and

2. whether the institution could reasonably be expected to obtain a copy of the record in question upon request.

[50] Applying this two-part test, I have found above that the property management records do not relate to a “region matter.”

[51] I have also considered whether the region could reasonably be expected to obtain a copy of the property management records upon request. I have found that the region does not have the authority to regulate the co-op’s use or disposal of such records, and am satisfied that, in the ordinary course, the region could not reasonably be expected to obtain a copy of records of this nature request. I also recognize, however, that the region, which performs the functions of a “Service Manager” under the HSA, has various statutory powers under that Act, including the power to audit or to require the housing provider to provide it with various documentation. However, as noted by the region, section 170(2) of the HSA reads:

(2) A person does not have control of a record for the purposes of the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act just because the person is entitled under section 20 or 21, subsection 69 (4) or section 71, 80, 81 or 82 to obtain a copy of a record.

[52] As a result of the wording of that section and all the circumstances of this appeal, I find that the region does not have control of the property management records for the purpose of the Act simply because it may be able to require production of such records under its statutory authority in the HSA.[37]

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[37] See City of Ottawa v. Ontario (Information and Privacy Commissioner), referenced above, where the court determined that the city’s right to monitor and supervise the use of its email server to ensure compliance with its policies is a limited right of access, and does not mean that the records are subject to the Act. See also Order P-1069, referenced by the Divisional Court, which found that records held by an outside agency are not subject to the Act merely because an institution has a general supervisory and monitoring role over the agency (in that case, the institution’s limited right of access to agency records to require financial accountability and periodic administrative reviews to ensure compliance the relevant statute).