December 2, 2010

Freedom of Information (FOI): When are external consultant notes under the control of a public body?

Administrative Law
Professional Regulation

Public bodies sometimes retain ad hoc external consultants to conduct professional health assessments. Where an external consultant takes notes in carrying out work, unless evidence shows the notes were created for the public body, or that the public body expected those notes to be created and provided to it (pursuant to a retainer letter, for example), those notes cannot (depending on the circumstances) be said to be under the control of the public body pursuant to s. 3(1) of the BC Freedom of Information and Protection of Privacy Act (“FIPPA”).

In a case involving a former employee making request to the College of Physicians and Surgeons of BC for a psychiatric report on him commissioned by the University, and for the psychiatrist’s notes, the College transferred the request to the University under s. 11 of FIPPA. The University responded to the applicant by stating he already had a copy of the report. Dissatisfied with the response, the applicant sought review, alleging the University failed to meet its duty under s. 6(1) of FIPPA by failing to disclose the psychiatrist’s handwritten notes taken during the psychiatric assessment. The University submitted it did not have custody of the notes, which were in the possession of the psychiatrist, and did it have control over them.

Upon review, the BC Information and Privacy Commissioner held the University did not have custody or control of the notes pursuant to s. 3(1) of FIPPA, as they were in the possession of the psychiatrist. The psychiatrist, though an employee of the University in a different capacity, was retained through her private office as an external consultant and took the notes to carry out her work to create the report. Additionally, the terms of her work with respect to the applicant were explicitly set out in the retainer letter and there was no evidence that the handwritten notes were created for the University’s use or that the University expected those notes to be created and provided to it. Since the production of the notes was the sole matter at issue, the hearing on whether the University met its duty under s. 6(1) did not proceed.

Decision F10-01; University of British Columbia (Re), [2010] B.C.I.P.C.D. No. 5 (February 10, 2010).