Crown-Indigenous Relations and Northern Affairs Canada (Re), 2024 OIC 37

Date: 2024-07-09
OIC file number: 5823-01760
Access request number: A-2022-00034

Summary

The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada did not conduct a reasonable search in response to an access request under the Access to Information Act for records from the Deputy Minister’s Office relating to funding or fiscal management of the Assembly of First Nations from January 1, 2016 to April 1, 2019.

The investigation identified deficiencies with the search, and determined that Crown-Indigenous Relations and Northern Affairs Canada did not conduct a reasonable search for records.

The Information Commissioner ordered Crown-Indigenous Relations and Northern Affairs Canada to conduct a new search for records and to provide a new response to the complainant no later than 36 business days after the final report.

Crown-Indigenous Relations and Northern Affairs Canada 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) had not conducted a reasonable search for records in response to an access request under the Access to Information Act. The request was for records from the Deputy Minister’s Office that relate to funding or fiscal management of the Assembly of First Nations (AFN) from January 1, 2016 to April 1, 2019. The allegation falls under 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]     At the outset of the investigation, the Office of the Information Commissioner (OIC) contacted the complainant in an attempt to obtain any evidence that would support the claim that CIRNAC’s search was unreasonable. In response, the complainant provided evidence related to 57 briefing notes created within CIRNAC that contain the phrase “Assembly of First Nations”, several of which were addressed to the Deputy head. According to publicly available information through the open government portal, the relevant sectors for such briefing notes include Policy and Strategic Direction (PSD), Treaties and Aboriginal Government, and Yukon Region. The complainant also provided a document emailed to AFN on November 29, 2021, co-signed by CIRNAC Deputy Minister Daniel Quan-Watson, regarding funding arrangements to support the AFN. While the records provided by the complainant fall outside of the date range of the access request, they demonstrate that similar records for the date range of the request should exist.

[6]     The OIC asked CIRNAC to provide details related to the search for responsive records. In response, CIRNAC maintained that their search was reasonable. CIRNAC’s Access to Information and Privacy office (CIRNAC ATIP) stated that it looked at all responsibilities within each sector and region, and determined that the only two sectors that would hold records are the Corporate Secretariat and the Chief Financial Officer (CFO). CIRNAC ATIP added that it had confirmed that PSD did not in fact have anything to do with funding arrangements with the AFN, contrary to what was posted on the Open Government portal section on briefing notes, and stated that they should not be tasked as they do not hold records.

[7]     However, when tasked, the CFO noted that the request did not pertain to them, and the Corporate Secretariat recommended “that all sectors and regions be consulted” because, while the Corporate Secretariate may hold some responsive records, they are not the Office of Primary Interest (OPI) for this matter.

[8]     In addition, the Deputy Minister’s Office (DMO) suggested that the PSD should have been tasked, stating that it is responsible for funding arrangements with the AFN. Further, because the request mentions audits, the DMO suggested that the Audit and Evaluation sector should also have been tasked.

[9]     CIRNAC ATIP did not explain why all sectors and regions were not tasked, contrary to the recommendation of Corporate Secretariat and despite evidence of previous briefing notes to the Deputy Minister originating from the Treaties and Aboriginal Government sector and from the Yukon Region. Additionally, CIRNAC ATIP did not provide an explanation on which sector would have authored the briefing notes to the Deputy Minister regarding the AFN that were attributed to PSD, or which sector would likely have stored similar briefing notes relating to the AFN, addressed to the DM, from the time period of the access request.

[10]    During the course of the investigation, CIRNAC ATIP tasked PSD with searching for records responsive to the request. PSD advised that their data system was changed in 2017, that “permission to access the data prior to 2017 was limited therefore records from between 2016 and 2017 are no longer accessible”.

[11]    The Act provides requesters with a right of access to records that are under the control of government institutions. CIRNAC did not explain why access to records from prior to 2017 was limited, or why the complainant did not have a right of access to these records. CIRNAC also offered no representations on why there are no PSD records from 2018 or 2019.

[12]    PSD recommended the tasking of the Senior Assistant Deputy Minister’s Office (SADMO), who was then tasked but located no records for the time period indicated in the request. SADMO recommended that the DMO be tasked with searching for responsive records. The DMO was tasked, and a search was also conducted in the Assistant Deputy Minister’s Office, with no further records located.

[13]    CIRNAC noted that their DMO does not store records, including documents signed by the Deputy Minister. Such records would either be stored in the Department’s document management system that is managed by the Corporate Secretariat, or saved in GCDocs by the OPI. The DMO noted that when they receive access requests for documents that did not originate in the DMO and were not saved by the DMO, they direct CIRNAC ATIP to engage the appropriate OPI(s) to produce those records. The DMO added that they are not aware of whether emails are held by former CIRNAC DMO staff for the time period in question, as they do not have access to emails of former staff employed in DMO during the time period of the access request.

[14]    The quasi-constitutional right of access depends on institutions documenting their activities and decisions. Under the Policy on Service and Digital, Deputy Heads are required to ensure that decisions and decision-making processes are documented.  Similarly, the Directive on Service and Digital requires all public service employees to document activities and decisions of business value.

[15]    The records released in response to the access request indicate that the Deputy Minister was involved in discussions with the AFN regarding funding, and that CIRNAC was working with Indigenous Services Canada on a joint funding agreement with the AFN. Despite this, only 2 pages of records were located and released in response to the request. CIRNAC did not provide an explanation for the paucity of records, and I find it implausible that there were no further records of business value produced by the Deputy Minister’s office.

[16]    Based on the above, I conclude that CIRNAC did not conduct a reasonable search for records.

Outcome

[17]    The complaint is well founded.

Orders and recommendations

I order the Minister of Crown-Indigenous Relations to do the following:

1. Conduct a new search for records that respond to the access request, taking into account the deficiencies noted in my report.
2. Provide a new response to the complainant once the search is complete no later than 36 business days after the final 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).
4. If no additional responsive records are located during the search, indicate in the response how and where the search was conducted and why no such records were identified.

Initial report and notice from institution

On May 22, 2024, I issued my initial report to the Minister of Crown-Indigenous Relations setting out my orders.

Institution will implement orders

On July 3, 2024, the acting Corporate Secretary for CIRNAC gave me notice that CIRNAC would be implementing the orders. I was informed that an additional search for relevant records is currently underway and that a new response to the complainant will be provided no later than 36 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, the order(s) takes effect on the 36th business day after the date of this report.