Thursday, December 30, 2010

Important court decision on personal files stored on employer's computers

A recent ruling by the Ontario Superior Court of Justice may have turned some traditional wisdom on its head.

The ruling says that personal e-mails stored on a government computer are not subject to Freedom of Information legislation. The correspondence concerned the employee’s volunteer activities with a community organization. The employee in question works for the City of Ottawa.

The question put to the court was whether a citizen had the right to request access to e-mail files on a civil servant’s computer, including e-mails which the employee had designated as personal. The court said no. “It is not reasonable for e-mails belonging to a private individual to be subject to access by members of the public merely because they are sent or received on a government owned e-mail server.” The judges ruled the legislation does not cover public servants’ private messages – even if they are stored on government computers.

The court went even further saying that the e-mails, which were unrelated to city business and kept in a separate folder, were not in the municipality’s control or custody. The decision overturns a 2009 ruling by an Information and Privacy Commissioner adjudicator, which ordered the city to release the documents.

Traditional wisdom has held that regardless of the nature of the documents, anything stored on your employer’s computer is indirectly the property of the employer and therefore subject to various pieces of legislation including Freedom of Information provisions.

The National Post is reporting today that “Ontario’s privacy commissioner is seeking leave to appeal a recent court ruling that says private emails on workplace email systems are not covered by freedom of information laws.”   Surprise, surprise.


Helen Ginger said...

All our new equipment and advances have certainly created gray areas that are having to be defined, haven't they? Seems like most people would be better off having an iPhone or some other smart phone to do their personal emailing and Internet surfing - and skip using the company computer.

Wisewebwoman said...

Interesting that no one is addressing the personal usage of employers' computers for private business? And why wouldn't they use gmail or hotmail (cloudmail) to do so as that would not be archived?
Interesting can of worms, yeah?

ViewPoint2010 said...

Helen, that's what I've advocated for a long time. Get a cheap cellphone and use that for personal stuff. It's gets particularly grating for me when employees use office phones for personal long-distance calls. Their sense of entitlement is such that they don't see an issue with it. I suggested a couple of the worst offenders do the same as I do, buy a long-distance calling card at one of the department stores and use that. I know I rant here about the "all about me" mentality today, but somewhere along the way it has to stop.

ViewPoint2010 said...

WWW, and it just gets bigger and bigger. I'm from the old school so I find the abuse of work time appalling, but it seems to be accepted today as a right or a benefit or something. The work ethic is so pitiful in so many situations that if it wasn't for union protection, a lot of these people would be working at McDonalds where I know you can't spend half your day surfing the social networking sites. If you remind people about the work is for work rule, then they claim you're harrassing them.