Practice Note – Returning/Destroying Records

Overview

Since taking office in August 2022, Commissioner Diane McLeod has been reviewing the practices of the Office of the Information and Privacy Commissioner (OIPC) when it comes to returning/destroying records that parties provide to the Commissioner when she is performing her legislative functions. From this review, it has become apparent that there are varying interpretations of in what circumstances records must be returned/destroyed, and therefore various practices under which some records have not been returned from files dating as far back as 15+ years.

Under section 56 of the Freedom of Information and Protection of Privacy Act (the FOIP Act), section 50 of the Access to Information Act (ATIA), section 29 of the Protection of Privacy Act POPA), section 88 of the Health Information Act (HIA) and section 38 of the Personal Information Protection Act (PIPA), the Commissioner may require that any record be produced to the Commissioner in conducting a Commissioner-led investigation or an inquiry and, except for PIPA, in giving advice and recommendations. Records pertaining to investigations, inquiries and giving advice and recommendations are case file records of the OIPC.

Section 56(5) of the FOIP Act, section 88(5) of the HIA and section 38(5) of PIPA require that the Commissioner return any record or any copy of any record produced. Section 50(5) of ATIA and section 29(5) of POPA require that the Commissioner return any original paper record produced and destroy any copy of any record, including any electronic record, produced.

This Practice Note sets out how the Commissioner now intends to deal with the statutory requirement to return/destroy records that are required to be produced to the Commissioner.

 

Records that the Commissioner will return

The Commissioner has determined that the following requirements must be met for returning records:

  • There must have been a Commissioner-led investigation or inquiry or a request to give advice and recommendations.
  • The Commissioner must have required the records to be produced.
  • The Public Body, Custodian or Organization that produced the records must still be in existence.

If the foregoing requirements are met, the Commissioner will return the following records:

  • original paper records produced by a Public Body under ATIA and POPA
  • records that were produced to the Commissioner in an electronic medium such as a CD or USB key

 

Records that the Commissioner will not return

The Commissioner has determined that records provided in settlement will not be returned, as there is no authority to require records to be produced.

The Commissioner has also determined that records that the Commissioner required to be produced in a Commissioner-led investigation or an inquiry or in giving advice and recommendations will also not be returned if any of the following circumstances are met:

  • The records that were produced are paper records that are not original paper records.
  • The Public Body, Custodian or Organization that produced the records no longer exists.
  • The records are a copy that the Commissioner made for the investigation or inquiry.
  • The records are a copy that the Commissioner made and provided to the Court.
  • The records were produced in an electronic form and provided to the Commissioner by email or by electronic document drop box.

Any records set out above that are not returned will be destroyed according to the Records Retention and Disposition Schedule (the Schedule) of the OIPC. The current Schedule of the OIPC requires that case file records be retained for 20 years and then destroyed.

January 2026

Disclaimer

This document is not intended as, nor is it a substitute for, legal advice, and is not binding on the Information and Privacy Commissioner of Alberta. Responsibility for compliance with the law (and any applicable professional or trade standards or requirements) remains with each organization, custodian or public body. All examples used are provided as illustrations. The official versions of the laws the OIPC oversees and their associated regulations should be consulted for the exact wording and for all purposes of interpreting and applying the legislation. The Acts are available on the website of Alberta King's Printer.