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FOI - Control (Ontario). YUDC v. Information and Privacy Commissioner
In YUDC v. Information and Privacy Commissioner (Div Ct, 2022) the Divisional Court judicially reviewed whether records were under the control of the institution:The Relevant law
[38] In Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306, the Supreme Court set out a two-part test for assessing whether records are under the control of an institution subject to access to information legislation (at paras. 49-60):(i) Do the contents of the document relate to a department matter; and
(ii) Could the government institution reasonably expect to obtain a copy of the document on request? [39] The parties agree that the test from National Defence is the applicable test to assess whether records are “under the control” of an institution subject to access to information legislation. The test from National Defence is the test that the Adjudicator applied in this case.
[40] In National Defence, the Supreme Court recognized the importance of interpreting the “control” provisions of access to information legislation in a manner consistent with the purpose of the legislation. As a result, the Court held that “the notion of control must be given a broad and liberal meaning in order to create a meaningful right of access to government information” (at para. 54). In light of this approach, the Court provided guidance on how each of the two steps of the analysis should be approached (at paras. 55 and 56):Step one of the test acts as a useful screening device. It asks whether the record relates to a departmental matter. If it does not, that indeed ends the inquiry. The Commissioner agrees that the Access to Information Act is not intended to capture non-departmental matters in the possession of Ministers of the Crown. If the record requested relates to a departmental matter, the inquiry into control continues.
Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The Commissioner is correct in saying that any expectation to obtain a copy of the record cannot be based on “past practices and prevalent expectations” that bear no relationship on the nature and contents of the record, on the actual legal relationship between the government institution and the record holder, or on practices intended to avoid the application of the Access to Information Act (A.F., at para. 169). The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption. In applying the test, the word “could” is to be understood accordingly. [emphasis in original] [41] The factual context at issue in National Defence was different that the context in this case. National Defence involved the assessment of whether records in a ministerial office (which was not subject to federal access to information legislation) were under the control of a government department (which was subject to the legislation). Although the context was different, the problem is the same as in this case – when are records possessed by an entity not subject to access to information legislation in the custody or control of an institution subject to the legislation, such that the right of access applies?[2] The test in National Defence is contextual and requires a decision-maker to consider all of the circumstances in assessing whether records are under the control of an institution subject to the act. Thus, it is flexible enough to apply to a variety of factual contexts.
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