Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 10 followed by the Office of the Information and Privacy Commissioner of British Columbia in several Orders including Order 309-1999 in which the following is stated at paragraph [50]: Custody [possession] of records requires more than that the records be located on particular premises. In order for a public body to have custody [possession] of records, the public body must have immediate charge and control of these records, including some legal responsibility for their safekeeping, care, protection, or preservation. Control connotes authority. A record is under the control of a government institution when the government institution has the authority to manage the record including restricting, regulating, and administering its use, disclosure, or disposition.15 Possession and control are different things. It is conceivable that a government institution might have possession but not control of a record or that it might have control but not possession.16 Section 5 uses the word, “or” which indicates that only one of “possession” or “control” is required. If a government institution has either possession or control of a record, FOIP applies to that record.17 To determine whether a government institution has a measure of control over a record(s), both parts of the following two-part test must be met: 1. Do the contents of the document relate to a government institution matter? The first question acts as a useful screening device. If the answer is no that ends the inquiry. If the answer is yes, the inquiry into control continues.18 Continue to the second part of the test. 15 SK OIPC Review Report F-2008-002 at [35]. 16 SK OIPC Review Report F-2008-002 at [22]. 17 SK OIPC Review Report LA-2010-002 at [43]. 18 Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306 at [55].
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