The Employer has recently sent a memorandum reminding members to preserve records that may be relevant to litigation launched by “Access Copyright” in 2013. This reminder referred members to the Document Preservation Notice issued on June 27, 2013 and stated that this notice remains in effect.
YUFA has filed grievances regarding the Document Preservation Notice and the reminder notice. It is the Association’s position that the Employer has violated the academic freedom provisions of the Collective Agreement by stating that YUFA members’ records are in the possession, control, or power of York University, by stating that members are under an obligation to assist York University and its counsel to obtain access to such records, and by stating that members will be contacted for the purpose of collecting documents for internal review.
In order to safeguard academic freedom, it is a long-established practice, upheld in several Information and Privacy Commission decisions, arbitration decisions and court cases, that most records created by academic staff are in the custody and control of the record’s creator, not of the university that employs them. While there are some exceptions relating to administrative records (i.e. documents you may have created or received while participating on a committee or while acting in an academic administrative capacity such as chair or program director), the Employer generally cannot require you to produce to it records relating to teaching or research, even if that record has been requested by a third party (such as in an access to information request.) This is true even if the record is located on University property or stored on York servers. YUFA’s grievances are intended to safeguard this customary practice, which is essential to protecting your records from inappropriate Employer surveillance that would erode your academic freedom.
Should the administration request that you turn over any record, the Canadian Association of University Teachers advises academic staff to decline until you contact YUFA. YUFA will consult with CAUT as necessary in order to consider the specifics of the request and will provide you with advice in connection with the issue.
YUFA will take all appropriate steps to protect members and the Collective Agreement should the Employer demand that records be produced. However, since the Federal Court has the power to demand production of certain relevant records even if they are in the possession, control, or power of a third party, it is important that you preserve potentially relevant records. In other words, while it is YUFA’s position that York University has no right to demand several of the types of records described in the memoranda, the Federal Court may issue an order that requires production of relevant documents directly from you. If such an order is sought, YUFA and/or CAUT may seek to intervene in the court proceeding, so that issues related to academic freedom can be addressed before any such disclosure occurs. YUFA is working closely with the CAUT and legal counsel to ensure that members are protected. If you receive any request or demand from the administration relating to your records, we ask that you contact YUFA immediately.