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Retrieving Archived E-Mail
A requester asked the Business Development Bank of Canada (BDC) for copies of all e-mails generated by BDC’s Vice-President of Public Affairs during the period May 1, 2000 to May 3, 2001. The BDC refused to retrieve, process, and disclose any of the e-mails, saying that: (1) the request was too unfocussed; (2) the VP’s e-mails would likely be exempt from access as "personal information" or as confidential business information; and (3) it would take substantial computer-processing time and resources, involving significant fees to be borne by the requestor.
The requester complained to the Information Commissioner, pointing out that he was seeking access to e-mails generated on a work-related account, that the BDC had provided no specific fee estimate, and that it had made no effort to apply the exemptions contained in the Act, designed to protect any portion of the requested records containing personal information or confidential business information.
Early in the Commissioner’s investigation, BDC realized that it had no legal basis for refusing to process the request. It determined that e-mails relevant to four of the twelve months covered by the request were retrievable from the Vice-President’s desktop computer. They were processed and disclosed, subject to exemptions. The remaining eight months of e-mails had been electronically archived in a manner which BDC estimated would cost $17,400 and six weeks of work to retrieve.
Part of the technical challenge for BDC was that it had moved from an MS-Mail and Schedule System (Novel operating environment) to Microsoft Exchange and Outlook. In its fee estimate, BDC included the purchase of a computer, server, installation and set-up time, and the cost of a consultant for 31 working days to restore the e-mails from the back-up tapes.
This case raised two legal issues: First, is a government institution required to retrieve electronically archived e-mails in response to an access request? Second, what costs incurred in retrieving e-mails may a government institution charge to the access requester?
With respect to the first issue, the answer, in the Commissioner’s view, depends on whether or not retrieving the e-mails would unreasonably interfere with the operations of the institution. This position flows from the wording of section 3 of the Access to Information Regulations (the Regulations) which provides:
"For the purpose of subsection 4(3) of the Act, a record that does not exist but can be produced from a machine readable record under the control of a government institution need not be produced where the production thereof would unreasonably interfere with the operations of the institution."
The Commissioner dispatched his own computer expert to the BDC to make an independent assessment of the "burden" which would be placed on the BDC were it to be required to retrieve the archived e-mails.
The Commissioner’s expert examined the BDC’s plan and determined that BDC already possessed all the necessary hardware and software resources to retrieve the e-mails, that all of the hardware used to back-up the e-mail servers were still in existence, and that the technical analyst who had initially installed and configured the MS-Mail and Exchange 5.5 server was still employed with the BDC. The Commissioner’s expert estimated that the retrieval of the e-mails could be accomplished in less time than the 31 days estimated by BDC. Consequently, the Commissioner could not accept the BDC’s assertion that retrieval of the e-mails would unreasonably interfere with BDC’s operations.
With respect to the second issue, the Commissioner informed BDC of his view that the fee estimate was unjustifiably high, not only for the technical reasons just outlined, but for legal reasons, as well.
The Commissioner reviewed the Regulations and could find no authority for charging fees based on labour and capital costs involved in retrieving electronic records. However, the Commissioner concluded that BDC could assess fees to the requester in the amount of $10 per hour of time spent by staff members to retrieve the records, per subsection 7(2) of the Regulations. The Commissioner’s view, in this regard, followed comments made by Muldoon J. at para. 21 of his decision in the case of Blank v. Canada (Minister of Environment)  F.C.J. No. 1620.
With the benefit of the Commissioner’s views on these issues, BDC agreed to proceed to retrieve and process the archived e-mails. As well, it recalculated its fee estimate pursuant to subsection 7(2) of the Regulations - it dropped from $17,400 to $2,325.
The Commissioner informed the requester that he considered the revised fee to be reasonable, and the case was resolved on that basis.
Access requests requiring institutions to recover archived e-mail pose significant challenges. As a matter of law, it will be very difficult for an institution to simply refuse to retrieve the e-mails, because so doing would unreasonably interfere with the institution’s operation. In the Blank case (previously cited), for example, it was estimated that retrieval of the e-mails would involve 575 hours of work, yet the institution did not claim unreasonable interference.
Rather, the prudent course is to properly assess fees - yet another challenge. The Regulations do not specifically authorize fees for recovering archived e-mail, and the jurisprudence supports the approach of charging such fees pursuant to subsection 7(2) of the Regulations (which refers to non-computerized records) rather than pursuant to subsection 7(3) (which refers to machine readable records).
As confounding as that may be, the jurisprudence stands uncontradicted and was the Commissioner’s guide in this case.