Ontario Commissioner Issues Significant Order on Custody or Control of University Records

If any part of your practice involves advising universities on access to information issues, run -- don't walk -- over to Dan Michaluk's summary of the recently released decision in University of Ottawa – Order PO-3009-F (November 7, 2011).

One of the big issues these days is whether records held by a university professor is in the custody or control of the university, so that they may be subject to access to information legislation. The Information and Privacy Commissioner of Ontario has just held that it is up to the IPC and not any other process (such as arbitration or reference to arbitral jurisprudence) to determine whether this is the case. The decision also provides the following very helpful guidance:

Accordingly, I conclude that the arbitral awards are not determinative with respect to the custody or control of records that may be responsive in this case. Rather, the determination is to be made based in the principles enunciated in this order. The significant conclusions I have reached in this regard are:

1. records or portions of records in the possession of an APUO member that relate to personal matters or activities that are wholly unrelated to the university’s mandate, are not in the university’s custody or control;

2. records relating to teaching or research are likely to be impacted by academic freedom, and would only be in the university’s custody and/or control if they would be accessible to it by custom or practice, taking academic freedom into account;

3. administrative records are prima facie in the university’s custody and control, but would not be if they are unavailable to the university by custom or practice, taking academic freedom into account.

Run to Dan's summary: Ontario Commissioner Issues Significant Order on Custody or Control of University Records « All About Information.