Bulletin Number 6: Records of Elected and Appointed Officials of Local Public Bodies

Revised June 2004

PDF Version (pdf)

• Overview
• What is "custody or control"?
• What are "personal records"?
• What are "constituency records"?
• Processing a FOIP request
• Records management practices
• Purpose

Municipal councillors, school trustees, Metis settlement councillors and some officials of other local public bodies are elected to their positions with their local public bodies. A number of submissions were made to the 1999 Select Special Freedom of Information and Protection of Privacy Act Review Committee of the Legislative Assembly of Alberta regarding the records of elected officials.

The submissions suggested that the criteria for determining whether the records of elected officials are subject to the Freedom of Information and Protection of Privacy (FOIP) Act was not clear, compared to the criteria provided for the records of Members of the Legislative Assembly.

When the FOIP Act was amended following the review in 1999, a provision was added to exclude from the scope of the Act a personal record of an appointed member of the governing body of a local public body. The intention of this addition was to provide a consistent approach to the records of members of the governing bodies of all local public bodies, whether elected (as in local government and school boards) or appointed (as in the case of the Boards of Governors of post-secondary educational institutions or regional health authorities).

In the report of the 2002 Select Special Freedom of Information and Protection of Privacy Act Review Committee (see page 13 of the Committee's Final Report), it was noted that certain governing bodies of post-secondary educational bodies (academic councils and general faculties councils) have elected members whose personal records should also be excluded from the scope of the Act. The June 2003 Amendment Act included a technical amendment to correct that oversight.

The FOIP Act, as amended, now reads:

4(1) This Act applies to all records in the custody or under the control of a public body, including court administration records, but does not apply to the following:

(m) a personal record or constituency record of an elected member of a local public body

(n) a personal record of an appointed or elected member of the governing body of a local public body;

Section 4(2) defines a "governing body" for universities, colleges and technical institutes. It is the board of governors or the general faculties council for universities, and the board of governors or academic council for colleges or technical institutes.

The test of whether the records are subject to the FOIP Act is based on whether:

1. The local public body has custody or control, and
2. The records are personal or constituency records.

The FOIP Act applies to all records in the custody or control of a public body, except for the records described in section 4. A public body has custody of a record when it is in the possession of the public body and the public body has a right to deal with the record and some responsibility for its care. A record is under the control of a public body when it has the authority to manage the record, including restricting, regulating and administering its use, disclosure and disposition.

The Commissioner has defined "custody" and "control" in Orders 2001-024 and F2002-006.

In Alberta Order 99-032, the Adjudicator outlined a number of non-exhaustive criteria to consider when determining control of personal records. These included:

1. Was the record created by an officer or employee of the institution?
2. What use did the creator intend to make of the record?
3. Does the institution have possession of the record either because it has been voluntarily provided by the creator or pursuant to a mandatory statutory or employment requirement?
4. If the institution does not have possession of the record, is it being held by an officer of employee of the institution for the purposes of his or her duties as an officer or employee?
5. Does the institution have a right to possess the record?
6. Does the content of the record relate to the institution’s mandate and functions?
7. Does the institution have the authority to regulate the records used?
8. To what extent has the record been relied upon by the institution?
9. How closely is the record integrated with other records held by the institution?
10. Does the institution have the authority to dispose of the record?

Some elected officials and board members do not have an office at the public body, so they keep their records at home or at their place of business. Although not housed on the premises of the local public body, these records may still be under the control of the local public body. The public body will ask the official to return the records if a FOIP request is made for the records.

In other cases, elected officials and board members have an office or working space within the local public body but may receive correspondence or conduct business that is not under the control of the local public body. In these cases, elected officials should ensure that these records are kept separate from the recordkeeping system of the local public body.

Section 4(1)(n) of the FOIP Act excludes personal records of an elected or appointed member of a local public body from the scope of the Act. The FOIP Act applies to records relating to the business of the local public body, not to any personal business dealings which an elected official or board member might have with third parties. If necessary, the local public body will need to show that the records are not related in any way to the business of the municipality, school board, Metis settlement, housing management body or governing body.

Some examples of the types of records, which would be included as personal records are:

• Private diaries, which record events in an individual's life, which may include daily work events.
• Records of personal or family appointments or events, such as medical appointments, birthdays, vacations or financial transactions.
• Records related to a community organization or non-profit group to which the individual belongs on a personal basis not as a representative of the public body.
• Records related to a professional or similar organization to which the individual belongs or in which he or she holds office.
• Records related to a commercial or private business enterprise in which the individual is employed, holds office or of which he or she is an owner, shareholder or partner.
• Records of meetings that do not involve the business of the local public body.
• Electronic mail between the individual and others which does not deal with the business of the local public body.
• Biographical and historical material about the individual, which has not been made public.
• Records related to previous jobs or appointments.
• Research, speeches, lecture notes and the like which are not related to the local public body.

Commissioners in British Columbia and Ontario have considered the issue of custody and control of personal records. While these orders are not binding in Alberta, they are illustrative of the considerations in deciding on custody and control. British Columbia Order 247-98 deals with the personal diary of a retired school principal. In that order the British Columbia Commissioner determined that the diary was not in the custody or under the control of the public body. In order to make that decision, careful consideration of the type of information and purpose of the diary was made to ascertain that it was personal information.

Ontario Order M-813 deals with letters received by a city councillor from a constituent. In this order, some guidance is found on making a determination of whether a record is in the custody or under the control of the public body. In this order, based on records management authorities and policies in the City of Toronto, the Inquiry Officer suggested the following as characteristics of a record that was not in the custody or control of the municipality:

• The record was not deposited with council or the city.
• The city had no power to compel the elected official to produce the records, even when referred to in a council meeting.
• The city had no authority to regulate or dispose of the records.
• The record existed and was referred to as a part of the elected official's mandate to represent the constituent, not as a basis for action by the city.
• The records were not integrated with city records in the office of the elected official.

Section 4(1)(m) of the FOIP Act excludes constituency records of an elected member of a local public body from the scope of the Act. A "constituency" is the voters in a district represented by an elected official.

While not defined in the Act, a "constituency record" can be considered to be a record that deals with the political activities of an elected official of a local public body, including election contributions, campaigning and campaign issues. It does not relate to the governance or business matters of the local public body.

Constituency records would include records dealing with an elected official's constituency office, those who may have worked on an election campaign and details about the campaign. Disclosures about an election campaign would be made in accordance with other legislation, such as the Local Authorities Election Act, the School Act, or the Metis Settlements Act, for example.

Constituency records would not include correspondence between an elected official and a constituent that deals with the business of a public body and is in the custody or control of the public body.

A FOIP request may be made for any records in the custody or under the control of a public body. When a FOIP request is received for records, the FOIP Coordinator must assemble all the records, which may be responsive to the request. This would include records that may be personal or constituency records of an elected official, or personal records of an appointed official.

The FOIP Coordinator will then review the records and determine whether sections 4(1)(m) or (n) apply. If either section applies, then the records are not subject to the FOIP Act.

Where excluded records or information form part of the records, the local public body may choose to disclose the records, or can decide to refuse to disclose the records. If the public body decides to disclose these records, the response to the applicant should include an explanation that the records are excluded from the FOIP Act, and the public body has decided to provide them outside the FOIP process in this case.

If the applicant makes a complaint to the Information and Privacy Commissioner, the Commissioner can review the decision of whether sections 4(1)(m) or (n) apply.

For more information on processing FOIP requests involving excluded records, see the FOIP Guidelines and Practices manual, and the Information and Privacy Commissioner's Practice Note #4, Section 4 - Exclusions from the Act.

Records management practices can assist the public body in identifying personal or constituency records. Personal or constituency records that have been filed in the official records of the public body, whether done for the convenience of the elected or appointed official or in error, still retain their excluded status. However, by keeping these records separate it makes it clear to all concerned that the records are personal records, and not subject to the FOIP Act.

Generally, personal records should be kept separate from other records of the public body. Personal records should not be accessible to employees of the public body. For example, councillors may have a drawer or filing cabinet for their files, which they can lock. If records are retained on a computer system, they should be password protected in personal folders or directories. Any deliberate effort to keep personal records segregated from or apart from official records would assist in determining whether they are personal.

It should be noted that separating records from the public body’s filing system does not in itself exclude them from custody and control. If they are records of the business of the public body, they would be subject to the Act regardless of storage location.

As well as segregating records, transitory records should be discarded when no longer needed. For example, a member may take notes during a meeting as a memory aide. These notes could be discarded once the meeting minutes have been prepared, if that is the records retention policy of the public body.

It is important to remember that if the notes are subject to the FOIP Act and contain personal information about another individual, and that information is used in the process of making a decision about that individual, the notes must be kept for at least one year (section 35) after the decision has been made.

Purpose

FOIP Bulletins are intended to provide FOIP Coordinators with more detailed information for interpreting the Freedom of Information and Protection of Privacy Act. They supply information concerning procedures and practices to aid in the effective and consistent implementation of the FOIP Act across public bodies. FOIP Bulletins are not a substitute for legal advice.

Government of Alberta
Access, Privacy and Security
Service Alberta
3rd Floor, 10155 - 102 Street
Edmonton, Alberta T5J 4L4
Phone: (780) 427-5848
Fax: (780) 427-1120
Website: http://foip.gov.ab.ca