Academic staff records and documents are not normally in the custody or control of the university, according to an arbitration decision at the University of Ottawa in October.

At issue was the university’s response to a request filed under Ontario’s freedom of information act.

In November 2006, U of O advised academic staff that they had to provide printed or electronic copies of all documents in their possession, including email, that made reference to a certain professor, or a certain graduate student, in compliance with a freedom of information request the university had received for the information.

The university specified that the request applied to “all soft and hard copies of documents including emails, minutes of meetings, etc.” The directive to academic staff further added that “the university has the capacity to search your email account for the documents requested” and offered to do so “if you would like to avail yourself of this service.”
     
Under freedom of information legislation, only documents under a university’s custody or control are eligible to be requested.

The faculty union filed a grievance, claiming the university’s demand violated their collective agreement and past practice.

Specifically, the Association of Professors of the University of Ottawa maintained that records of its members were not in the control or under the custody of U of O and that the university did not have the right to demand or access documents held by their members. It added that emails sent and received using the university’s email system “are not documents for which the university has custody or control.”

APUO said the principal exception was for documents members may have that related to their administrative functions, for example, as chairs of departments, but even then, only to those specifically about administrative issues and not any personal notes, emails or notations.

Arbitrator Philip Chodos upheld the APUO ob­jection, finding the university’s directive was “contrary to the collective agreement and should be withdrawn.” He agreed that administrative documents were an exception, such as correspondence with the administration by chairs about administrative functions, “including minutes of meetings and documentation of conclusions reached, subject always to the protection of ‘personal information’ as the term is used in the (Ontario) Act.”

Chodos also indicated there may be a limited number of other types of documents that may properly be considered in the control or custody of the university and remains seized of the issue to provide guidance on what those may be.

“We’re pleased the arbitrator recognized the serious threats to academic freedom and to the integrity of academic work were he to have rejected our position,” said APUO president Atef Fahim. “His remaining seized of the issue will help in resolving any future controversy about the limited range of documents he indicated may be in the custody or control of the university.”