Indigenous Services Canada (Re), 2025 OIC 1

Date:2025-01-13
OIC file number: 5823-03025
Access request number: A-2023-00192

Summary

The complainant alleged that Indigenous Services Canada (ISC) did not conduct a reasonable search in response to an access request under the Access to Information Act for the following:

All documents, including but not limited to email and letter correspondence, research, studies, memos, drafts, decks and meeting minutes, etc. regarding housing space accommodation guides, housing space guides, space criteria, occupancy rates or capacity for house designs for reserve, rural, native or Indigenous communities from the Department of Indian Affairs and Northern Affairs/Indian and Northern Affairs Canada/Indigenous Services Canada from 1960 to 1990.

The allegation falls within paragraph 30(1)(a) of the Act.

The investigation determined that the Offices of Primary Interest did not retrieve all relevant records when they were tasked to do so. ISC was unable to show that it conducted a reasonable search for all the records responsive to the access request. The Office of the Information Commissioner (OIC) asked ISC to conduct a subsequent search for all relevant records. The first additional search again resulted in no records. However, the OIC asked ISC to conduct another search. As a result, 800 additional pages of responsive records were identified.

The Information Commissioner ordered that ISC provide an interim release to the access request within 36 business days following the date of the final report and to provide the final response to the access request no later than 60 business days following the date of the final report.

 ISC gave notice to the Commissioner that it would be implementing the order.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Indigenous Services Canada (ISC) did not conduct a reasonable search in response to an access request under the Access to Information Act for the following:

[2]      All documents, including but not limited to email and letter correspondence, research, studies, memos, drafts, decks and meeting minutes, etc. regarding housing space accommodation guides, housing space guides, space criteria, occupancy rates or capacity for house designs for reserve, rural, native or Indigenous communities from the Department of Indian Affairs and Northern Affairs/Indian and Northern Affairs Canada/Indigenous Services Canada from 1960 to 1990.

[3]      The allegation falls within paragraph 30(1)(a) of the Act.

Investigation

[4]      ISC was required to conduct a reasonable search for records that fall within the scope of the access request—that is, one or more experienced employees, knowledgeable in the subject matter of the request, must have made reasonable efforts to identify and locate all records reasonably related to the request.

[5]      A reasonable search involves a level of effort that would be expected of any fair, sensible person tasked with searching for responsive records where they are likely to be stored.

[6]      This search does not have to be perfect. An institution is therefore not required to prove with absolute certainty that further records do not exist. Institutions must however be able to show that they took reasonable steps to identify and locate responsive records.

Did the institution conduct a reasonable search for records?

[7]      ISC tasked its Regional Operations Branch for the requested records. In its response, the Branch advised the Access to Information and Privacy (ATIP) office that it does not maintain on-reserve housing records at the program level for the period requested (1960 to 1990). The Branch proposed that the request be redirected to ISC's archival records management (NCR Archival Research).

[8]      In its response to the access request, ISC advised that no responsive records exist. ISC also recommended to the complainant that the request be redirected to ISC's archival records management (NCR Archival Research) and provided the email address.

[9]      The complainant represented to the Office of the Information Commissioner (OIC) the following:

• The search terms were selected from the title and content of public documents including "Housing space accommodation guide for reserve communities" (1979), Department of Indian Affairs and Northern Development.
• The search terms in the request were selected from the title and content of public documents including "Housing space accommodation guide for reserve communities" (1979), Department of Indian Affairs and Northern Development. The document is labelled fourth draft and stamped as 'Approved for tabling at branch managers' meeting' with sign offs. This led the complainant to believe there would be a record of previous drafts, meeting minutes, communications regarding any drafts or other related documents.

[10]    The OIC was not convinced that a reasonable search for the requested records was conducted. Along with the complainant’s questions about ISC’s nil records response to the access request, the OIC questioned ISC’s ATIP office why it would be the responsibility of the complainant to contact ISC’s archival records management rather than ATIP officials tasking that office for responsive records.

[11]    ISC acknowledged that this suggestion was a “miscommunication” between the ATIP office and the complainant and that the NRC Archival Research group had now been properly tasked for the records along with a subsequent call out to the Regional Operations branch. In response, ISC advised the subsequent search did not yield any results.

[12]    While the OIC acknowledged that the appropriate Offices of Primary Interest had finally been tasked, questions remained about why ISC’s archives would not hold the requested records. The OIC also shared, with ISC, the complainant’s representations above.

[13]    In response, ISC advised that its archives team was again questioned about possible records. This time, approximately 24,000 pages of records were found that could be relevant to the request. Recognizing the large scope and more possible delays given the volume of records, the complainant agreed to work with ISC officials to narrow the scope of the request.

[14]    With the assistance and agreement of the complainant, the request was narrowed to exclude email and letter correspondence and funding and/or statistical data. The complainant clarified that only final versions were being requested unless there is no final version, in which case, the complainant asked for the most recent draft.

[15]    The narrowed parameters of the request resulted in 800 pages of records. ISC officials advised the OIC that consultations with another government institution and a third party are required. Responses to the consultations are due by December 16, 2024. An interim release of records that are not subject to the consultations is being prepared and will be sent to the requester shortly.

[16]    In light of the above, I must conclude that ISC did not conduct a reasonable search for responsive records at the time it first processed the request.

Outcome

[17]    The complaint is well founded.

Order

I order the Minister of Indigenous Services to:

1. Complete the retrieval of all records responsive to the request.
2. Process all additional pages of records located as a result of the additional searches.
3. On all records not subject to consultation, provide an interim release to the requester no later than 36 business days following the date of the final report.
4. Provide the final response to the access request no later than 60 business days following the date of the final report.
5. Give the complainant access to responsive records, unless access to them, or to part of them, may be refused under a specific provision(s) of Part 1 of the Act. When this is the case, name the provision(s).

Initial report and notice from institution

On November 27, 2024, I issued my initial report to the Minister setting out my order(s).

On December 23, 2024, the Minister gave me notice that she would be implementing my order(s). The Minister advised me that the request is awaiting consultation responses and an interim response has been provided to the complainant. A final response to the complainant will be provided no later than 60 business days after the final report.

Review by Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. Whoever applies for a review must do so within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by this deadline, this order takes effect on the 36th business day after the date of this report.