Canada School of Public Service (Re), 2022 OIC 44

Date: 2022-09-13
OIC file number: 5819-04644
Institution file number: A-2019-00009

Summary

The complainant alleged that the Canada School of Public Service (CSPS) did not conduct a reasonable search in response to an access request made under the Access to Information Act for all emails sent and received by a specified senior executive from January 1, 2019 to July 8, 2019. The complaint falls within paragraph 30(1)(a) of the Act. In addition, the complainant questioned whether the request was processed without regard to the identity of the person making the request. This aspect of the complaint falls within paragraph 30(1)(f) of the Act. Finally, the complainant further alleged that the CSPS intentionally deleted records despite knowing that there was an existing access request for those records.

This investigation revealed several issues with the processing of this request including, but not limited to: keeping the request on hold for months without lawful authority; failing to retain records responsive to an active access request; and an inadequate search for records as evidenced by the additional records that were ultimately found and sent to the complainant. The Information Commissioner concluded that the CSPS did not initially conduct a reasonable search in response to the access request. Also, while it is clear that the CSPS mishandled the processing of this request, the Commissioner did not find evidence related to the commission of an offense under the Act in the context of the investigation. Lastly, with regard to the allegation that the complainant’s identity was taken into consideration during the processing of the request, the Commissioner did not find evidence of this during the course of the investigation. The complaint is well founded.

Complaint

[1] The complainant alleged that the Canada School of Public Service (CSPS) did not conduct a reasonable search in response to an access request made under the Access to Information Act for all emails sent and received by a specified senior executive from January 1, 2019 to July 8, 2019. The complaint falls within paragraph 30(1)(a) of the Act.

[2] In addition, the complainant questioned whether the request was processed without regard to the identity of the person making the request. This aspect of the complaint falls within paragraph 30(1)(f) of the Act.

[3] Finally, the complainant further alleged that the CSPS intentionally deleted records despite knowing that there was an existing access request for those records.

Investigation

[4] The CSPS 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] On July 10, 2019, within the first 30 days of the request, the CSPS tasked the specified senior executive with the request. On July 11, 2019, the ATIP coordinator informed the specified senior executive that the request would be placed on hold pending further clarification. In parallel, the ATIP coordinator asked the complainant if they would be willing to further define the scope of their request. The complainant refused, and asked that their request be processed as initially submitted.

[8] On August 7, 2019, the CSPS notified the complainant that it would be taking a 120-day extension to process the request and that a response would be sent by December 5, 2019. According to the CSPS, the extension was necessary given the large volume of records resulting from the broad scope of the request.

[9] Records show that the search for records was not initiated until November 2019, four months after the request was made. Representations obtained during my investigation confirmed that:

On October 3, 2019, the CSPS sent an internal communiqué announcing the specified senior executive departure from the department;
On November 4, 2019, the ATIP analyst asked the Human Resources unit to provide the specified senior executive’s departure date;
On November 20, 2019, the ATIP analyst contacted the CSPS IT to ask if the specified senior executive’s Outlook mailbox was retrievable. The CSPS IT responded the following day that it had been deleted and could not be retrieved. The CSPS consulted Shared Services Canada (SSC) who confirmed that email accounts are automatically deleted thirty days after employees’ departures as per the retention schedule;
On November 22, the CSPS responded to the access request by informing the complainant that the specified senior executive no longer worked at the CSPS and they were not able to retrieve any records in response to the request. The response also indicated that most of the responsive records were destroyed in accordance with the CSPS’ retention schedule.

[10] As a result of the Office of the Information Commissioner’s intervention, the CSPS conducted a search within their corporate repositories and located additional responsive records. These records were provided to the complainant on March 2, 2022.

[11] In light of the above, I conclude that the CSPS did not initially conduct a reasonable search in response to the access request.

Intent to Deny Access and Identity of the Requester

[12] The complainant alleged that the CSPS ATIP office was counselled to destroy records knowing that there was an existing request to access these records.

[13] Section 67.1 makes it an offence to destroy, mutilate or alter a record, or direct, propose, counsel or cause any person in any manner to do such things with the intent to deny a right of access under this Act.

[14] My mandate is to conduct administrative investigations into federal institutions’ compliance with the Act and to make findings of fact. I cannot conduct criminal investigations nor can I assign civil or criminal liability. I can make findings of fact regarding actions taken, but will not investigate whether these actions were done “with an intent to deny a right of access under [the] Act”. If during the course of an investigation, I am of the view that there is evidence relating to the commission of such an offence by a director, officer or employee of government institution, I may inform the Attorney General of Canada.

[15] While it is clear that the CSPS mishandled the processing of this request, I did not find evidence related to the commission of an offence under the Act in the context of my investigation.

[16] Lastly, with regard to the allegation that the complainant’s identity was taken into consideration during the processing of the request, I did not find evidence of this during the course of my investigation.

Result

[17] The complaint is well founded.

It is imperative for the President of the CSPS to take immediate action to ensure that these issues are isolated and not indicative of larger systemic access issues at the CSPS. Moving forward, I will be monitoring CSPS complaints closely and will not hesitate to launch a systemic investigation if needed.

When a complaint falls within the scope of 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.