Campus Counsel
Special Edition - April 24, 2009
ARE AFFILIATES OF INSTITUTIONS OF HIGHER LEARNING SUBJECT TO FOIPPA?
The Freedom of Information and Protection of Privacy Act ("FOIPPA") requires all "public bodies" (as defined), including universities and other post-secondary institutions, to grant access to records which are within their custody or under their control. This disclosure is subject to important exceptions, but may still result in disclosure of sensitive information. As institutions of higher learning have branched into the business world, they have used business corporations and trusts. They have also established or become associated with foundations and other organizations to raise and hold funds on their behalf. Are the records of these related organizations also subject to disclosure under FOIPPA?
On April 21, 2009, the Office of the Information and Privacy Commissioner released Order F09-06 regarding an applicant's request to UBC for access to documents relating to the following seven entities:
- UBC Properties Investments Ltd. and UBC Properties Trust;
- Discovery Parks Inc.;
- UBC Foundation;
- University Golf Club, and University Golf Course;
- UBC Research Enterprises Inc.;
- BC Research Inc.; and
- UBC Investment Management Trust.
The specific records the applicant requested for each entity were its most recent annual report; the salaries and expense figures for the CEO or highest ranking employee for the most recent year; and the minutes of all meetings of the board of directors or, in the case of a trust, the trustee's board from 2006 to date.
Since none of the seven entities is specifically designated or defined as a "public body" under FOIPPA, FOIPPA would only apply if the requested records were under the control or in the custody of UBC.
The adjudicator dealt firstly with the issue of "control" in relation to each entity and his conclusions in that regard meant that only a brief consideration of the issue of "custody" was required. In the cases of UBC Properties Investment Ltd. (the trustee of UBC Properties Trust), UBC Research Enterprises Inc. and UBC Investment Management Trust, the adjudicator made a number of findings of fact, relying to a significant degree on information available on UBC's website. Because the adjudicator found that each of these entities was created and wholly owned by UBC, its boards were appointed by UBC and comprised in part or entirely of UBC employees and because the business of these entities had a direct nexus to the mandate of UBC, he found that UBC had "complete dominion" over them. As a result, the requested records were in fact under UBC's control. The adjudicator brushed aside the corporate veil between UBC and these entities and ordered UBC to process the applicant's request for access to their records. He did not comment on whether UBC might be able to avail itself of any of the exceptions to disclosure under FOIPPA in relation to the records for these three entities. Given his findings regarding the issue of "control", the adjudicator did not consider the issue of "custody" of the records for the first three entities. For the remaining entities, the adjudicator held that the records were not required to be disclosed for varying reasons:
Discovery Parks Inc. The requested records are not under UBC's control because UBC has no control over the appointment of the board of directors, had no hand in its incorporation and the applicant provided no further evidence relating to the relationship of Discovery Parks with UBC.
UBC Foundation The adjudicator was persuaded by the fact that the Foundation was created by the legislature under the University Foundations Act, and not by UBC directly, despite the fact that the Foundation's five members are appointed by UBC's Board of Governors. The adjudicator considered that this issue had been previously considered by the Office of the Information and Privacy Commissioner in relation to SFU (see Order 02-30) and that the legislature had not designated the Foundation as a "public body" under FOIPPA to be determinative of the fact that the requested records were not under UBC's control or in its custody.
University Golf Club and University Golf Course The applicant did not provide any evidence with regard to either entity so there was no basis upon which the adjudicator could find it was controlled by UBC or that its records were in UBC's custody.
We are advised by counsel for UBC that UBC intends to appeal the adjudicator's decision. Pending the appeal, it is important for all institutions of higher learning which have subsidiaries, trusts or other connected entities over which they exercise control to be aware that the records of such organizations, including minutes of board meetings, may be subject to the right of access under FOIPPA. With respect to the adjudicator's decision that FOIPPA does not apply to the UBC Foundation, note that the University Foundations Act applies only to the foundations of UBC, SFU, UVic, UNBC and Royal Roads. We believe that the foundations of most other BC institutions of higher learning are incorporated under the Society Act and might therefore be treated differently.
If you have any questions regarding higher learning issues or the FOIPPA, please contact the Editor of Campus Counsel, Brock Johnston (604.643.3116 or rbj@cwilson.com), Shauna Towriss (604.891.7749 or skt@cwilson.com) or Larry Munn (604.643.3160 or lm@cwilson.com).
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