Crown-Indigenous Relations and Northern Affairs Canada (Re), 2024 OIC 05

Date: 2024-02-19
OIC file number: 5822-02973
Institution file number: A-2021-00086

Summary

The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) did not conduct a reasonable search in response to an access request under the Access to Information Act for copies of all of Canada's School Narratives, including supporting documents and document lists, as disclosed as part of the Independent Assessment Process. The allegation falls within paragraph 30(1)(a) of the Act.

The investigation determined that CIRNAC access officials identified that records existed but refused to process them, stating that the records are confidential and that processing them would require a minimum of 12 months to complete, given existing priorities.

The Information Commissioner ordered that CIRNAC complete the retrieval of all records responsive to the request, and provide a new response to the access request no later than the 60th business day following the date of the final report.

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

The complaint is well founded.

Complaint

[1]      The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) did not conduct a reasonable search in response to an access request under the Access to Information Act for copies of all of Canada's School Narratives, including supporting documents and document lists, as disclosed as part of the Independent Assessment Process. The complaint falls within paragraph 30(1)(a) of the Act.

Investigation

[2]      CIRNAC 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.

[3]      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.

[4]      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?

[5]      CIRNAC access officials advised the Office of the Information Commissioner (OIC) that they identified that records exist but refuse to process the records, stating that the records are confidential and that processing them would require a minimum of 12 months to complete given existing priorities. CIRNAC further stated that the “redaction process would not yield perfect results, exposing Canada to risk of violating personal privacy or implied undertakings to the Church or other groups from whom Canada does not possess a waiver”.

[6]      Subsection 4(1) of the Act reads as follows:

• 4(1) Subject to this Part, but notwithstanding any other Act of Parliament, every person who is
  • a Canadian citizen, or
  • a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,

has a right to and shall, on request, be given access to any record under the control of a government institution.

[7]      On August 28, 2023, the OIC sought representations from CIRNAC, as follows:

• how many pages are relevant to the request;
• a detailed timeline of the processing of the request;
• information on required consultations, if any; and
• a firm date for which CIRNAC will provide a response to the complainant.

[8]      To date, CIRNAC has not provided the requested representations. In addition, the OIC has not been provided with any indication that CIRNAC intends to process the request. In its last communication with the OIC, CIRNAC’s access officials confirmed that the Office of Primary Interest is continuously denying the provision of the requested records in order for the processing of the request to begin. I find this unacceptable. Given that the complainant is a Canadian citizen, and CIRNAC is in control of the records requested, I am of the view that CIRNAC is denying the complainant’s right of access to records under their control.

[9]      Based on the above, I conclude that CIRNAC did not conduct a reasonable search for records in response to the access request. This refusal of access is egregious and, in my view, CIRNAC must retrieve all relevant records without undue delay, process them and provide a complete response to the complaint.

Outcome

[10]    The complaint is well founded.

Orders

I order the Minister of Crown-Indigenous Relations and Northern Affairs Canada 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. Provide a new response to the access request on the 60th business day following the date of the final report.
4. 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).
5. If none of the additional records are responsive to the request, indicate this in the response.

Initial report and notice from institution

On January 8, 2024, I issued my initial report to the Minister of Crown-Indigenous Relations and Northern Affairs Canada setting out my orders.

On February 12, 2024, the Minister gave me notice that CIRNAC would be implementing the orders. The Minister also confirmed that an additional search resulted in more records being located, which will now be processed.

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.