We received several queries related to whether the personal notes and emails of search/selection committees for senior administrative positions fall within the Access to Information Act (ATIA).

Recommendation

After consulting with CAUT and our legal counsel, and for the reasons outlined below, it is the CMCFA’s position that such documents do not fall within the ATIA.

As such, committee members should refuse to disclose such documents on the grounds that the documents:

(1) Are not “under the control of a government institution” within the meaning of s. 4(1) of the ATIA; or otherwise,

(2) Contain personal information within the meaning of s. 19(1) of the ATIA.

1. Not Under Government Control

The right to access records under the ATIA only applies to records “under the control of a government institution.” The Supreme Court of Canada has held where a record is not in the physical possession of a government institution, it can nonetheless be considered under its control if “the contents of the documents relate to a department matter” and the institution could “reasonably expect to obtain a copy of the document upon request.”

Where there is no history of individuals disclosing personal notes from candidacy meetings to the College or indication that the College placed standards with respect to the making or storing of such notes, the College cannot reasonably expect to obtain them on request. Accordingly, personal notes cannot be considered under government control.

Similarly, emails cannot be considered under government control where there is no custom or practice of the College requesting or relying on members’ emails concerning candidates for senior administrative positions. This is especially so in the context of academic freedom.

2. Personal Information Exemption

Under section 19(1) the ATIA, government institutions must refuse disclosure of any record requested that contains personal information. The definition of “personal information” under the ATIA is the same as under s. 3 of the Privacy Act, which includes an individual’s “employment history”, “the views or opinions of another individual about the individual” or any “recorded information about an identifiable individual.”

While the Privacy Act contains an exception for personal views “given in the course of employment”, the Supreme Court of Canada held this exception does not extend to job evaluations or interview notes because they relate to the competence of the individual rather than the individual’s position or functions.

SUMMARY

The CMCFA is communicating with the College to confirm our shared understanding of the ATIA. In the interim, we urge members to come forward should they be asked to provide any personal notes or emails related to selection committees or otherwise.

Questions or comments should be directed to the CMCFA President at luu@cmcfa-apcmc.ca.