In a landmark ruling, adjudicator Catherine Boies Parker from the office of British Columbia’s Information and Privacy Commissioner has rejected a Simon Fraser University claim that documents in a company created by the university are exempt from the province’s freedom of information laws.

David Noble, a professor at York University, had requested copies of all records relating to two spin-off companies in the possession of SFU’s university/ industry liaison office. While initially agreeing to make the records available, SFU then changed its position, arguing the records were in the custody and control of SF Univentures, an incorporated entity created and wholly owned by SFU.

Upon investigation, the adjudicator found that SF Univentures operates only as a holding company for SFU, that all of its directors are SFU employees, that it has no location or staff independent of SFU and that it is governed under the direction of SFU, and exists in order to promote SFU’s interests.

“SF Univentures is, in a very real sense, nothing more than an instrument through which SFU acts,” the decision notes, and therefore “records under the control of SF Univentures should be treated as being under the control of SFU.”

Noble described the ruling as a major victory. “The shell game is over,” he said. “Universities no longer can set up dummy corporations to shield commercial activities from public scrutiny.”

The University of British Columbia and the University of Victoria were joint intervenors in the case, saying they each had created a corporation with similar functions to SF Univentures to provide services to the private sector. The UBC/UVic submission argued that when public bodies provide services to the private sector, the public body does not have custody nor exercise control over records unless the parties sign a contract to the contrary.

The B.C. Freedom of Infor-mation and Privacy Association also intervened and noted that the records in question related to SFU’s core research mandate by “exploiting university research in the marketplace and holding the university’s interests in such ventures,” with the resulting revenue flowing back to the university.

Further, FIPA asserted that SF Univentures was SFU’s agent, conducting certain aspects of SFU’s business, and that the agreement under which SF Univentures operates is not arms-length as SFU controls both parties and as such the contract.

CAUT also intervened and likewise argued that the records at issue related to SFU’s core function, that SFU is the sole shareholder of SF Univentures and that SFU elects the corporation’s directors and can replace them.