Canada Border Services Agency (Re), 2024 OIC 38
Date: 2024-07-09
OIC file number: 5823-02494
Access request number: A-2022-25721
Summary
The complainant alleges that the Canada Border Services Agency (CBSA) did not conduct a reasonable search in response to an access request under the Access to Information Act. This was in response to a request for emails, text messages and briefing notes related to CBSA’s list of companies that worked on the ArriveCAN application.
The complainant questioned the fact that they received no text messages in response to their request. The Office of the Information Commissioner (OIC) sought information from CBSA related to the program areas tasked to search for records, the parameters of the search and its policies related to the management of text messages. The Offices of Primary Interest most likely to have records relevant to the access request under their control, searched for records in the appropriate repositories and provided these records to the Access to Information and Privacy unit for review. It is reasonable to believe that text messages did not exist at the time the present request was made and/or were not caught as relevant.
The Information Commissioner concluded that CBSA conducted a reasonable search for records. The complaint is not well founded.
Complaint
[1] The complainant alleged that the Canada Border Services Agency (CBSA) did not conduct a reasonable search for records in response to an access request under the Access to Information Act. The request was for emails, text messages and briefing notes related to CBSA’s list of companies that worked on the ArriveCAN application.
[2] The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
Reasonable search
[3] CBSA 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.
[4] 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.
[5] 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?
[6] In response to the access request, CBSA provided several thousand pages of records including email messages, contracting documentation and budget printouts related to companies providing information technology (IT) services to CBSA.
[7] During the course of the investigation, the Office of the Information Commissioner (OIC) requested documentation related to CBSA’s search for responsive records.
[8] The OIC examined the responses of the Offices of Primary Interest (OPIs) to determine whether they had fulfilled their obligations under the Act to identify records relevant to the access request, under their control.
[9] The OIC’s investigation revealed that the OPIs most likely to have records relevant to the access request under their control, searched for records in the appropriate repositories. The OPIs provided the records to the Access to Information and Privacy unit for review. Records responsive to the request were then provided to the complainant.
[10] The complainant alleged that CBSA failed to provide any text messages in response to their request. The complainant alleged that text messages should have existed based on an email received in response to a previous access request that referred to a text message that had been sent.
[11] The investigation confirmed that the text message was neither responsive to the previous request, nor the present request. Despite this, the OIC questioned CBSA on its management policies related to the management of text messages.
[12] In response to the OIC’s questions, CBSA access officials explained that text messages are often considered transitory in nature, especially when followed by an email. This is supported by guidance issued by the Treasury Board Secretariat of Canada (TBS), “Information Management Protocol – Instant Messaging Using a Mobile Device,” which states:
- …Instant messages that do not have business value are deemed to be transitory, and should be deleted as soon as possible.
- When information of business value is transmitted via a mobile device, the information should be documented in another format (e.g., an email message or a Word document) and must be stored and retained in an official corporate repository. The original instant message should then be deleted. This is in keeping with the way employees are required to treat a telephone conversation during which information of business value is transmitted.
[13] According to Library and Archives Canada’s Disposition authorization for transitory records:
- Transitory records are not of business value. They may include records that serve solely as convenience copies of records held in a government institution repository, but do not include any records that are required to control, support, or document the delivery of programs, to carry out operations, to make decisions, or to provide evidence to account for the activities of government at any time.
[14] It is the employee’s responsibility, according to CBSA policy, to save any text messages that are not considered transitory, to a corporate repository, or to document such information in another format. There is no automatic or set retention period for text messages – they exist until manually deleted or until the cell phone is returned to IT for reset and re-assignment.
[15] In light of all of the above, it is reasonable to believe that based on CBSA and TBS policy, that text messages did not exist at the time the present request was made and/or were not caught as relevant.
[16] The right of access applies to existing records that are under the control of a government institution at the time the request is made. I have and will continue to encourage institutions to practice sound information management practices by disposing of duplicate and transitory records. Sound information management practices ensure that requesters receive relevant information in a timely manner.
[17] Based on the above, I conclude that CBSA conducted a reasonable search in response to the access request.
Outcome
[18] The complaint is not well founded.
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. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.