Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 3, Access to Records. Updated 5 May 2023. 22 While the expectation of privacy may be somewhat circumscribed, there is still both a right to and a reasonable expectation of privacy in relation to certain personal information contained on or in government owned equipment and accounts.31 Incidental personal use of government email accounts is generally anticipated. However, the government retains the right to monitor its information technology systems, which includes email. This is essential for security breaches, monitoring compliance with policies and network management. Computers that are reasonably used for personal purposes - whether found in the workplace or the home - contain information that is meaningful, intimate and touching on the user’s biographical core. Canadians may therefore reasonably expect privacy in the information contained on these computers, at least where personal use is permitted or reasonably expected. Ownership of property is a relevant consideration but is not determinative.32 Workplace policies are also not determinative of a person’s reasonable expectation of privacy. Whatever the policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation. While workplace policies and practices may diminish an individual’s expectation of privacy on a work computer, these sorts of operational realities do not in themselves remove the expectation entirely. A reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by section 8 of the Canadian Charter of Rights and Freedoms. Accordingly, it is subject to state intrusion only under the authority of a reasonable law.33 The purpose and intent of the legislation is also an important consideration.34 Would including personal and private communications of employees unrelated to government business do anything to advance the purposes of the legislation? Alternatively, would interpreting the language of the Act as not applying , interfere with a citizen’s right to fully participate in democracy? There have been a number of cases where the Commissioner has determined that the personal records of employees were not in the possession or control of a government 31 Office of the Northwest Territories Information and Privacy Commissioner (NWT IPC) Review Report 20-247 at [37]. Also cited in Guide to FOIP, Chapter 1, “Purposes and Scope of FOIP” at pp. 11 to 12. 32 R. v. Cole, 2012 SCC 53 (CanLII), [2012] 3 SCR 34. 33 R. v. Cole, 2012 SCC 53 (CanLII), [2012] 3 SCR 34. 34 For more on the purposes of FOIP, see Guide to FOIP, Chapter 1, “Purposes and Scope of FOIP”.
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