Personal emails about public business are supposed to be publicly accessible information, but the reality is complicated.
It’s an open secret that when it comes to emails and messaging, Ontario politicians have been pulling a Hillary Clinton for a long time, but that could be coming to an end.
Ontario’s Information and Privacy Commissioner issued guidelines for politicians and public servants last week, warning them that emails and instant messages in their private accounts can be made public under freedom of information law.
The guidelines make it clear why a politician might want to use Gmail or BBM for official business rather than their government account.
“You cannot evade access to information requests by using instant messaging tools or personal email accounts for business purposes,” the guidelines say, in big, blue text.
Torontoist launched this column two weeks ago with the goal of holding public institutions accountable with freedom of information requests, and to illuminate the process for readers. In this second instalment, we’re going to dive into when and how citizens can access city councillors’ emails, even if they were sent from (shudder) hotmail.com.
There’s long been a misunderstanding about Freedom of Information (FOI) rules in Ontario, Information and Privacy Commissioner Brian Beamish told Torontoist.
“Certain public servants or political staff seem to think that if they send emails from their personal email accounts they don’t fall under the (Freedom of Information) Act and that’s just not the case,” Beamish said. “If it’s city business, or ministry business, then it’s captured regardless of which email account it is sent from.”
In other words, if Shelley Carroll (Ward 33, Don Valley East) DM’d Josh Colle (Ward 15, Eglinton-Lawrence) about the latest episode of Game of Thrones it’s none of your business, but if it’s about an issue going to the next transit commission meeting, it’s a matter of public record and we have the right to see it.
@JoshColle sent you a DM.
— Shelley Carroll (@shelleycarroll) June 4, 2016
A precedent-setting decision made in January helped get things straightened out, Beamish said.
Way back in 2013, Oshawa Councillor Nancy Diamond emailed municipal law expert (and Rob Ford’s ex-lawyer) George Rust-D’Eye from her personal Gmail account, via her iPad.
The email was about a city council motion, which passed later that day, authorizing the hiring of Rust-D’Eye as an independent investigator to look into controversy about a land deal and allegations made by Oshawa’s former auditor general.
Oshawa resident and avid City Hall watcher Rob Vella wanted to know more about how Rust-D’Eye was hired. Vella read that Diamond had emailed Rust D’Eye, so he made an FOI request in December 2013, asking for copies of emails between Diamond and the lawyer. (If you’re unfamiliar with FOI requests, you’ll want to take a read through this now.)
The City told Vella that it had no documents per his request, as such emails were not under its care and control at the time. Vella appealed that decision to the Information and Privacy Commissioner. The process took more than two years, but he eventually won and the email was released to him.
The decision was important for two reasons, according to Beamish. First off, it clarified that a message doesn’t have to be on a government server for it to be released under FOI—so using your Gmail doesn’t get you off the hook.
If the message relates to a government matter and the government can “reasonably be expected to obtain a copy of the document upon request,” the legal rules around disclosure kick in. That includes Twitter DMs, BBMs, Slack, Facebook, and any other messaging service you can think of.
It gets a little more complicated if a politician or staffer is using a messaging service that doesn’t create a lasting record, so Beamish has asked politicians to make an archive.
“If you are using some type of media, instant messaging media, for government business than you should be ensuring that somehow that should be maintained to create a record,” Beamish said.
But in practice, that comes down to the honour system.
The second major issue in the Oshawa case was about when the public has a right to see a city councillor’s documents—it’s complicated and the rules concerning mayors and councillors aren’t the same.
While the mayor is considered an officer of the city and his or her records are subject to FOI, councillors aren’t an officer of the city at all times, even when they’re working.
Councillors aren’t considered officers of the city when they’re doing political or constituency activities, so those records aren’t accessible to the public, Beamish said.
“However, if they are acting on official City business and the content of the records relate to City business, they are more likely to be covered by the Freedom of Information Act,” he said.
In the Oshawa case, the hiring of an investigator was considered City business.
Beamish has written to the provincial government requesting the Municipal Freedom of Information Act is updated to clarify the legal status of councillor records. In the meantime, he’s issued a fact sheet for councillors to help them understand where they stand.
Torontoist is using this info to try to dig up messages from some of city hall’s politicians. We’ve asked about some private email accounts that have allegedly been used for city business and we’ve written requests about some important city matters to see what turns up.
It’s a little like green bins. When the City couldn’t keep raccoons out they invented a whole new bin—but maybe we can gnaw our way into it after all.
We reached out to three members of Council to ask whether they use personal email addresses for City business. They didn’t respond, but we’ve filed freedom of information requests.
I request all emails sent to or from Denzil Minnan-Wong (Ward 34, Don Valley East) about Waterfront Toronto from January 1, 2016, to present, using any of his email accounts, including his toronto.ca email and his personal email.
I request all emails sent to or from Coun. Josh Colle about SmartTrack and GO RER from January 1, 2016, to present, using any of his email accounts, including his toronto.ca email and his personal email.
I request all emails sent to or from Mayor John Tory about the Gardiner Expressway from January 1, 2016, to present, using any of his email accounts, including his toronto.ca email and his personal email, and Blackberry’s messaging/PIN services.
This story has been updated to clarify the circumstances surrounding Vella’s request to the City of Oshawa.
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