Canadian Heritage (Re), 2024 OIC 66

Date: 2024-09-12
OIC file numbers: 5823-02706, 5823-02707, 5823-02708, 5823-02710, 5823-02711, 5823-02712, 5823-02716, 5823-02717, 5823-02718, 5823-02720, 5823-02721, 5823-03994 and 5823-03998
Access request numbers: A-2023-00210, A-2023-00277, A-2023-00278, A-2023-00320, A-2023-00321, A-2023-00322, A-2023-00337, A-2023-00338, A-2023-00339, A-2023-00342, A-2023-00345, A-2023-00309 and A-2023-00390

Summary

The complainant alleged that Canadian Heritage (PCH) had not conducted reasonable searches for records in response to multiple access request under the Access to Information Act. The requests were all made in 2023 for records related to specific registered lobbying communications that took place in 2020 and 2021. The allegations fall under paragraph 30(1)(a) of the Act.

The Information Commissioner found that, although the Offices of Primary Interest (OPI) tasked with searching for records fulfilled their obligations under the Act, PCH has not demonstrated that it has tasked all of the OPIs most likely to hold records relevant to each of these access requests.

The Information Commissioner ordered PCH to: task the relevant OPIs, conduct a new search for records, give access to any additional responsive records and provide a new response to the complainant for each access request.

PCH gave notice to the Commissioner that it would implement all thirteen of the orders.

The complaints are well founded.

Complaints

[1]      The complainant alleged that Canadian Heritage (PCH) had not conducted reasonable searches for records in response to multiple access request under the Access to Information Act. The requests were all made in 2023 for records related to specific registered lobbying communications that took place in 2020 and 2021.

[2]      The allegations fall under paragraph 30(1)(a) of the Act.

Investigation

Reasonable search

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

[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]      The searches do 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 reasonable searches for records?

[6]      For all of these thirteen access requests, PCH responded that no relevant records were found. The Office of the Information Commissioner (OIC) examined all of the documentation provided by PCH that relates to the searches for records responsive to these thirteen requests, and sought representations from PCH as to how the Offices of Primary Interest (OPI) carried out these searches.

[7]      Based on the representations received, I am satisfied that the OPIs tasked with searching for records fulfilled their obligations under the Act to identify records relevant to the access requests under their control by searching for records in the appropriate repositories.

[8]      PCH submitted that since the requests were made in 2023 for lobbying communications which occurred in 2020 and 2021, some records may no longer exist. This is because the retention period for these types of records would be no more than two years. PCH also confirmed that some relevant records, such as administrative records of arrangements made for meetings, would have been transitory in nature and would not be subject to retention periods.

[9]      While I accept that relevant records may no longer exist given the retention periods and/or the type of records requested, I note that not all of the OPIs most likely to have records relevant to these thirteen access requests under their control were tasked to search for records.

[10]    This is because PCH has acknowledged that when lobbying communications occur involving only ministerial staff, PCH may receive summaries and other information from the Minister’s Office. PCH Corporate Secretariat is home to the Ministerial Liaison Offices department and is the OPI most likely to hold records related to lobbying communications involving ministerial staff or know which other OPIs may hold relevant records.

[11]    The documentation provided by PCH shows that when PCH tasks OPIs with searching for records, it asks them to identify any other OPIs that may hold responsive records, resulting in additional searches in some instances.

[12]    With respect to the current requests, PCH indicated that it selected the OPIs based on the individuals named in the text of the actual access requests. In the cases in which the named individuals worked within a particular OPI, that OPI was tasked. In cases where the named individual was ministerial staff, the Corporate Secretariat was tasked. I accept that this is a reasonable method in determining which OPIs were most likely to hold relevant records. However, based on my review of the access request texts and the OPIs tasked, I find that PCH did not consistently apply this approach for the current requests.

[13]    PCH confirmed that all of the individuals named in the access requests were ministerial staff, apart from two employees who worked within the Digital and Creative Marketplace Frameworks OPI. Consequently, the Corporate Secretariat should have been tasked with searching for records responsive to all of the requests containing the names of ministerial staff. I also find that the Digital and Creative Marketplace Frameworks OPI should have been tasked with searching for records responsive to the requests for all requests where the other two employees’ names appear.

[14]    Accordingly, I conclude that PCH did not conduct a reasonable search for records in response to these thirteen requests as I find that the following additional OPIs should have been tasked with searching for records:

[15]    Except for request A-2023-00338, PCH has agreed that additional searches should be performed and confirmed that it has begun tasking the necessary OPIs.

[16]    With respect to request A-2023-00338, PCH indicated that no additional tasking is needed. I disagree because one of the two PCH employees is named in this access request and PCH has provided no evidence that the Digital and Creative Marketplace Frameworks OPI was tasked with searching for records.

Outcome

[17]    The complaints are well founded.

Orders and recommendations

I order the Minister of Canadian Heritage to do the following:

1. For access request A-2023-00210:
   1. Task the Corporate Secretariat and any other OPIs that the Corporate Secretariat may identify as likely to hold relevant records;
   2. Conduct a new search for additional records that respond to the access request, in accordance with the points set out in the report;
   3. Give access to any additional 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); and
   4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.
2. For access request A-2023-00277:
   1. Task the Corporate Secretariat and any other OPIs that the Corporate Secretariat may identify as likely to hold relevant records;
   2. Conduct a new search for additional records that respond to the access request, in accordance with the points set out in the report;
   3. Give access to any additional 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); and
   4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.
3. For access request A-2023-00278:
   1. Task the Corporate Secretariat and any other OPIs that the Corporate Secretariat may identify as likely to hold relevant records;
   2. Conduct a new search for additional records that respond to the access request, in accordance with the points set out in the report;
   3. Give access to any additional 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); and
   4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.
4. For access request A-2023-00320:
   1. Task the Corporate Secretariat and any other OPIs that the Corporate Secretariat may identify as likely to hold relevant records;
   2. Conduct a new search for additional records that respond to the access request, in accordance with the points set out in the report;
   3. Give access to any additional 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); and
   4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.
5. For access request A-2023-00321:
   1. Task the Corporate Secretariat and any other OPIs that the Corporate Secretariat may identify as likely to hold relevant records;
   2. Conduct a new search for additional records that respond to the access request, in accordance with the points set out in the report;
   3. Give access to any additional 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); and
   4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.
6. For access request A-2023-00322:
   1. Task the Corporate Secretariat and any other OPIs that the Corporate Secretariat may identify as likely to hold relevant records
   2. Conduct a new search for additional records that respond to the access request, in accordance with the points set out in the report;
   3. Give access to any additional 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); and
   4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.
7. For access request A-2023-00337:
   1. Task the Digital and Creative Marketplace Frameworks and any other OPIs that are likely to hold relevant records;
   2. Conduct a new search for additional records that respond to the access request, in accordance with the points set out in the report;
   3. Give access to any additional 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); and
   4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.
8. For access request A-2023-00338:
   1. Task the Digital and Creative Marketplace Frameworks and any other OPIs that are likely to hold relevant records;
   2. Conduct a new search for additional records that respond to the access request, in accordance with the points set out in the report;
   3. Give access to any additional 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); and
   4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.
9. For access request A-2023-00339:
   1. Task the Corporate Secretariat and any other OPIs that the Corporate Secretariat may identify as likely to hold relevant records;
   2. Conduct a new search for additional records that respond to the access request, in accordance with the points set out in the report;
   3. Give access to any additional 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); and
   4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.
10. For access request A-2023-00342:
    1. Task the Digital and Creative Marketplace Frameworks and any other OPIs that are likely to hold relevant records;
    2. Conduct a new search for additional records that respond to the access request, in accordance with the points set out in the report;
    3. Give access to any additional 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); and
    4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.
11. For access request A-2023-00345:
    1. Task the Digital and Creative Marketplace Frameworks and any other OPIs that are likely to hold relevant records;
    2. Conduct a new search for additional records that respond to the access request, in accordance with the points set out in the report;
    3. Give access to any additional 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); and
    4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.
12. For access request A-2023-00309:
    1. Task the Digital and Creative Marketplace Frameworks and any other OPIs that are likely to hold relevant records;
    2. Conduct a new search for additional records that respond to the access request, in accordance with the points set out in the report;
    3. Give access to any additional 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); and
    4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.
13. For access request A-2023-00390:
    1. Task the Digital and Creative Marketplace Frameworks and any other OPIs that are likely to hold relevant records;
    2. Conduct a new search for additional records that respond to the access request, in accordance with the points set out in the report;
    3. Give access to any additional 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); and
    4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.

Initial report and notice from institution

On August 7, 2024, I issued my initial report to the Minister of Canadian Heritage setting out my orders.

On September 10, 2024, the Director, Access to Information and Privacy Secretariat gave me notice that PCH would be implementing each and everyone of the orders.

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, the order(s) takes effect on the 36th business day after the date of this report.