Department of Justice Canada (Re), 2021 CI 33

Date: 2021-11-16
OIC file number: 3217-02395
Institution file number: A-2017-01701

Summary

The complainant alleged that the Department of Justice Canada (Justice) did not conduct a reasonable search under the Access to Information Act when responding to an access request for records produced by the Senior General Counsel about the Asia-Pacific Economic Cooperation (APEC) conference at the University of British Columbia. The request also sought specific records on the legal aspects of the security measures and all details of the trade agreement, as well as any records connected to the Hughes Inquiry regarding APEC between 1995 and 1999. Justice’s response was that they could not locate any responsive records to the request.

During the investigation, the Office of the Information Commissioner (OIC) determined that Justice did not task the National Litigation Sector (NLS). In February 2020, Justice confirmed that the NLS would be the most appropriate Office of Primary Interest (OPI) for the records regarding the APEC conference held by the Chief General Counsel. Six months later, in August 2020, Justice tasked the NLS’ British Columbia Regional Office and retrieved 41,843 pages of records and videos. Justice’s Access to Information and Privacy Office (ATIP) confirmed that, as of July 2, 2021, it has received and imported a total of 40,780 pages into its processing system.

In light of the above, I conclude that Justice did not conduct a reasonable search for records in response to the access request.

The complaint is well founded.

Complaint

[1]      The complainant alleged that the Department of Justice Canada (Justice) did not conduct a reasonable search under the Access to Information Act when responding to an access request for records produced by the Senior General Counsel about the Asia-Pacific Economic Cooperation (APEC) conference at the University of British Columbia. The request also sought specific records on the legal aspects of the security measures and all details of the trade agreement, as well as any records connected to the Hughes Inquiry regarding APEC between 1995 and 1999. Justice’s response was that they could not locate any responsive records to the request.

Investigation

[2]      Justice 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]      During the investigation, the Office of the Information Commissioner (OIC) asked Justice to explain how no records responsive to the request could be located, including identifying which Offices of Primary Interest (OPI) had been tasked to search and retrieve records in response to the request.

[6]      Based on the representations provided, the OIC determined that Justice did not task the National Litigation Sector (NLS). In February 2020, Justice confirmed that the NLS would be the most appropriate OPI for the records regarding the APEC conference held by the Chief General Counsel. Six months later, in August 2020, Justice tasked the NLS’ British Columbia Regional Office and retrieved 41 843 pages of records and videos. Justice’s Access to Information and Privacy Office (ATIP) confirmed that, as of July 2, 2021, it has received and imported a total of 40,780 pages into its processing system.

[7]      In light of the above, I conclude that Justice did not conduct a reasonable search for records in response to the access request.

[8]      Justice provided a timeline detailing the expected next steps in order to complete the processing of the request. In estimating the time required to issue a response to the complainant, Justice indicated that it would process 750 pages per month. Justice explained that this was based on the fact that “Treasury Board estimates for processing identify a target of 500 pages a month” and “the [OIC’s] suggested targets of 1000 pages a month”. Justice added that its processing would include:

• Indexing, sorting and importing records into Justice’s ATIP file processing system;

• Digitizing paper records and processing videos;
• Identifying consultation requirements with other departments for applicable records; and
• Conducting the exemption analysis of the records and reviewing them for quality control.

[9]      Finally, Justice indicated that its work could be constrained due to ongoing COVID-19 operational challenges.

[10]    Consequently, Justice estimated that it will need a total of 55 months to process the request and will be in a position to provide a final response to the complainant on December 2, 2025. Justice added that it would issue interim releases to the complainant when possible.

[11]    I am disappointed that it has taken Justice over a year and a half to task the appropriate OPI and retrieve the responsive records; months after acknowledging its omission. Moreover, I note that Justice has not made a serious effort in determining the length of time required to fully respond to the request. The OIC suggests a minimum standard of 1000 pages a month, which takes into account the time it should take for indexing, sorting, and reviewing records as well as internal approvals. I also note that Justice has acknowledged that approximately 15,000 pages of the records are likely already in the public domain, meaning the total pages that will probably require in-depth analysis stands closer to 26,000.

[12]    I am therefore not convinced that Justice’s proposed date of response of December 2, 2025 has been properly and reasonably estimated. Given the work that remains to be done, I find that a response should be provided to the complainant no later than September 4, 2023. This is 26 months from the date the OIC received Justice’s representations and commitment that the process would begin.

Result

[13]    The complaint is well founded.

Recommendations

I recommend that the Deputy Minister of Justice:

1. Provide a final response to the access request as early as possible and no later than September 4, 2023.
2. Email a copy of the response letter to the Office of the Information Commissioner’s Registrar (Greffe-Registry@oic-ci.gc.ca).

On September 28, 2021, I issued my initial report to the Deputy Minister of Justice setting out my intended recommendations.

On October 25, 2021, the Deputy Minister of Justice gave me notice that he would be implementing my recommendations.

It should be noted that institutions must abide by the terms of subsection 37(4) when disclosing any records in response to my recommendation.

Section 41 of the Access to Information Act provides a right to the complainant who receives this report 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.