Page: 8 of the analysis is to consider how a purposive interpretation of the statutory language used might inform the interpretation of the Act. Would interpreting the term “custody or control” as including private communications of employees unrelated to government business do anything to advance the purpose of the legislation? Conversely, would interpreting the language of the Act as not applying to the private communications of employees interfere with a citizen’s right to fully participate in democracy? The answer to both questions must, in my view, be “No.” [29] The fatal flaw in the reasoning of the Arbitrator is that she did not even ask herself these questions. Further, in considering the various relevant factors that inform the interpretation of what constitutes “custody or control” she did not consider those factors in the context of whether such an interpretation would enhance participation in the democratic process. [30] The Arbitrator in this case adopted the criteria established in Order 120 by former Commissioner Sidney Linden as being relevant considerations for determining whether the requirements of custody or control are met. Commissioner Linden emphasized that this was not meant to be an exhaustive list, but that these are merely the kinds of questions that could be considered in making such determinations. His 10-item list is a useful one and it is relevant to consider each item on the list in the context of the legislative purpose and intent. (1) Was the record created by an officer or employee of the institution? (Mr. O’Connor was a recipient of the emails, but most were created by someone at CAS. To the extent anything was created by Mr. O’Connor it was outside the context of his role as an employee of the institution, such that access to the document would not appear to relate to the democratic municipal process) (2) What use did the creator intent to make of the record? (The documents were never intended to be used by the City or for any municipally related purpose.) (3) Does the institution have possession of the record, either because it has been voluntarily provided by the creator or pursuant to a mandatory statutory or employment requirement? (The City had possession of the emails. However, there was no requirement for the employee to use the City’s email server. He voluntarily chose to do that for convenience. He also could have deleted the emails at any time without any involvement of the City. Therefore, the City’s possession occurred by happenstance.) (4) If the institution does not have possession of the record, is it being held by an officer or employee of the institution for the purposes of his or her duties as an officer or employee? (No. The possession is entirely unrelated to City business) (5) Does the institution have a right to possession of the record?