‘Responsive Records’ Under FIPPA Can Include Deleted Emails

June 27, 2012 | Gillian Tuck Kutarna

The Information and Privacy Commissioner (“IPC”) recently upheld an appeal against Carleton University, overturning the University’s response to a request under the Freedom of Information and Protection of Privacy Act refusing to produce emails which had been deleted.

The IPC held that, since the University had the ability to search for the deleted emails on its server, it should be ordered to do so.

The IPC referred to section 24 of the Act, which requires a person making a request for information to do so in writing, and provide enough detail that the record can be found with reasonable effort.  Where an insufficiently detailed description has been provided, the Commission reinforced that an institution has a positive obligation to assist the person making the request in curing any defects.

In the Carleton University case, the primary issue for the appellant involved emails sent and received by a specific professor.  The University submitted that this professor initially provided responsive records, but when contacted by the appellant about the existence of additional records, he advised that his computer had “crashed” and he had lost all his emails, so that it would be impossible for him to confirm anything further.

Carleton University acknowledged that it was likely that its Communication and Computing Service (CCS) could retrieve the lost emails from the server.  However, they took the position that the appellant’s request for “any and all records” pertaining to him which were “held by” the Department of Law did not include deleted or lost emails, as these were no longer “held” by that department, but were instead with CCS. The IPC rejected this argument, along with the University’s suggestion that if the appellant sought retrievable CCS records, he should have to submit a second request specifically naming ‘deleted emails’.

What should be noted is that, while an institution may charge a fee for the cost of producing what has been requested, the fees do not always allow for full recovery of the cost, and fee appeals brought by requesters are frequently upheld by the IPC. We might speculate that, in resisting the requester’s appeal for more extensive records, the University may have been, at least in part, influenced by the expense involved.

The IPC nevertheless found that Carlton University’s submissions reflected an unreasonable and narrow interpretation of the Act and cited previous decisions as confirming that an institution may not unilaterally limit the scope of its search for records. Rather, there is an obligation under the Act to adopt a liberal interpretation of a request, assist the requesting party as needed, and resolve any ambiguity in the requester’s favour.

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