|
7. RECORDS
RETENTION AND DISPOSITION BY-LAW 2003-527, SCHEDULE A AMENDMENTS RÈGLEMENT SUR LA CONSERVATION ET LE DÉCLASSEMENT DES
DOSSIERS (RÈGLEMENT NUMÉRO 527-2003), MODIFICATIONS À L'ANNEXE A |
That Council amend the Records Retention and Disposition By-law No.
2003-527 (as amended) to incorporate the revisions to Schedule 'A ', as
outlined in Document 1, subject to the approval of the City's external auditor.
Recommandation du comité
Que le Conseil modifie le Règlement sur la conservation
et le déclassement des dossiers (Règlement numéro 527-2003, tel que modifié)
afin d'intégrer les révisions à l'Annexe A, comme il est indiqué dans le
document 1, sous réserve de l'approbation du vérificateur externe de la Ville.
DOCUMENTATION
1. Deputy City Manager's report, City
Operations, dated 7 January 2011 (ACS2011-COS-ITS-0001).
2. Extract of Draft Minutes dated 17 January
2011.
Finance and Economic Development Committee
Comité des finances
et du développement économique
7 January 2011 / le 7 janvier 2011
Submitted by/Soumis par : Steve Kanellakos, Deputy City Manager/Directeur
municipal adjoint, City Operations/Opérations municipales
Contact Person/Personne ressource : Guy Michaud, Director, IT Services,
Chief Info Officer
Information Technology
Services/Services de technologie de l'information
(613) 580-2424 x12880,
guy.michaud@ottawa.ca
That the Finance and Economic Development Committee recommend Council amend the Records Retention and Disposition By-law No. 2003-527 (as amended) to incorporate the revisions to Schedule 'A ', as outlined in Document 1, subject to the approval of the City's external auditor.
Que le Comité des finances et
du développement économique recommande au Conseil de modifier le Règlement sur
la conservation et le déclassement des dossiers (Règlement numéro 527-2003, tel
que modifié) afin d'intégrer les révisions à l'Annexe A, comme il est indiqué
dans le document 1, sous réserve de l'approbation du vérificateur externe de la
Ville.
Section 255 of the Municipal
Act, 2001 provides that a municipality may, subject to the approval of the
municipal auditor, establish retention periods during which the records of the
municipality must be retained and preserved, and that except as otherwise
provided, a record of the municipality may be destroyed if a retention period
for the record has been established and the retention period has expired or the
record is a copy of the original record.
The Records Retention and Disposition (RRD) By-law (2003-527)
establishes a schedule for the retention and disposition of records in the
custody or under the control of the City, and provides the City with the legal
authority to destroy redundant official records, their administrative
duplicates and transitory records. The City's existing RRD By-law was approved
by Council in October, 2003.
Schedule 'A' of the by-law is the records retention
and disposition schedule. This Schedule is comprised of a timetable that plans
the life of a record from the time of its creation, through its maintenance
stages as an active record stored on-site, to an inactive record stored
off-site, to its final disposition either as waste or permanent retention.
Schedule 'A' was previously amended by By-laws 2004-567, 2005-507, 2007-11 and
2009-410.
The records retention and disposition schedule is correlated with a corporate records classification scheme. City departments are required to classify their official business records accordingly. Both the schedule and the scheme will necessarily require ongoing review and modification to accommodate changing legislation, user needs and program changes. As a result of these natural and expected business developments, modifications to the records retention and disposition schedule are identified by the Information Technology Services Department in the course of their Information Management service delivery with clients and are brought forward to Council on an annual basis for approval. This process ensures that the City's records management framework is reflective of the organization and the types of official business records the City needs to retain.
The Legal Services Branch were consulted in the preparation of these amendments and their comments have been incorporated.
There are no legal or risk management impediments to the implementation of the recommendation of this report.
For the information of Members of Committee and Council, it should be noted that in a December 2010 decision the Ontario Superior Court of Justice (Divisional Court) found that the personal e-mails of a City employee were not subject to the access to information scheme of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA). This court decision quashed an earlier decision of the Information and Privacy Commissioner of Ontario (IPC) which had ordered the City to process an access request for employee personal e-mails. The Divisional Court's decision does not at present have a direct impact on the City's Records Retention and Disposition By-law or on Schedule A, which qualify employee personal e-mails as transitory records and allows them to be destroyed by the employee at any time. City policies are similarly unaffected by the Divisional Court decision at this time. However, it should also be noted that the IPC is seeking leave to appeal the Divisional Court decision to the Court of Appeal for Ontario and the outcome of that proceeding has yet to be determined. Staff will report to Members of Council on the outcome of this issue, and will advise if any future court decisions have an impact on the By-law.
There are no direct financial implications as a result of this report.
Document
1 – Schedule A amendments table.
Document 2 - Amending By-law, including revised Schedule A (incorporating changes contained within the table) - on file with the City Clerk
The City Solicitor to prepare the amending by-law for enactment
upon approval of the report recommendation 1.
IM/IT Architecture & Security Branch to forward the amending by-law to the City’s External Auditor for approval pursuant to Section 255 of the Municipal Act 2001, after enactment by City Council.
RECORDS RETENTION AND DISPOSITION BY-LAW 2003-527,
SCHEDULE A AMENDMENTS
RÈGLEMENT
SUR LA CONSERVATION ET LE DÉCLASSEMENT DES DOSSIERS (RÈGLEMENT NUMÉRO
527-2003), modificatIONS À L'ANNEXE A
ACS2011-COS-ITS-0001 city-wide / À l’Échelle de la ville
Mayor Watson indicated one (1) public delegation had registered to
speak on this item and he noted that the City Clerk and Solicitor had excused himself
for this particular discussion.
Mr. John Dunn referenced Schedule A of the Records
Retention By-law, where it defined transitory records. He talked about employees’ non-business
related e-mails and electronic records, which could be deleted by employees at
any time. He indicated the prupose of
his presentation was to request a motion to temporarily repeal the
aforementioned section of the by-law because of litigation involving this
matter. He felt the by-law would have
the effect of frustrating freedom of information legislation, which he
submitted was contrary to Section 14 of the Municipal Act. He re-iterate his request to repeal, the
specific definition, at least temporarily, until the matter had been dealt with
thrugh the courts to its finality. So
my hope is that we could repeal or even temporarily repeal that particular
definition until this matter has been dealt with in the courts to its
finality. In closing, he referenced an
e-mail he had sent to Committee members on this matter.
Councillor Chiarelli felt Council should proceed to create its policy
as planned and, if there happened to be a court order to retain records, then
the City would retain those records.
However, in the absence of such an order, the City should proceed with a
solid, responsible records retention policy.
He then asked for a comment from the City Solicitor. Mr. Carey Thomson, Deputy City Solicitor,
introduced himself and Valérie Bietlot, Legal Counsel. Responding to Councillor Chairelli’s
comments, Mr. Thomson expressed his concurrence with the proposed
approach. He referenced an e-mail he
sent to members of Councillor the previous Friday, which responded to Mr.
Dunn’s e-mail. He submitted this was a
matter of apples versus oranges. He
noted Mr. Dunn’s concerns related to transitory records whereas the by-law
dealt with business records that, as a result of Provincial legislation, the
City of Ottawa was required to maintain, preserve and then destroyed once the
life of that document was considered to be at an end based on an approved
retention period. He informed Committee
that in anticipation of this meeting, he had contacted the external firm acting
on the City’s behalf in this matter, the firm of Heenan Blaikie, and received a
written opinion explaining that MFIPPA legislation was enacted to enhance
democratic values by providing citizens with access to government information
and stating that employees’ personal e-mails that were completely unrelated to
their work, were not in the City’s custody and control for the purposes of
MFIPPA. Further, the letter from Heenan
Blaikie stated unequivocally that there was no legal impediment to this
Committee and Council dealing with and approving the report currently before
Committee. In closing, Mr. Thomson recommended
Committee not move a motion, as requested by the delegation.
Councillor Wilkinson felt Mr. Thomson’s comments were very
helpful. She believed this was about
records retention, not a court case. She
maintained that the City needed to improve how it maintained records and
therefore she would support the staff recommendation.
Councillor Clark reported having read Mr. Thomson’s memo the previous
Friday and he agreed that the issue before Committee was records
retention. He recognized that people would
send and receive personal e-mails and he felt it would be absurd to prevent
staff from deleting such correspondence.
He suggested Committee should strongly support the report
recommendation.
Following these exchanges, Committee approved the report recommendation
as presented.
That the Finance and Economic
Development Committee recommend Council amend the Records Retention and
Disposition By-law No. 2003-527 (as amended) to incorporate the revisions to
Schedule 'A ', as outlined in Document 1, subject to the approval of the City's
external auditor.
CARRIED