Department of Justice Canada (Re), 2023 OIC 29

Date: 2023-06-14
OIC file number: 5821-00288
Institution file number: A-2020-00923

Summary

The complainant alleged that the Department of Justice Canada (Justice) did not conduct a reasonable search in response to an access request under the Access to Information Act for documents related to a 2009 Ontario Regional Office workplace-based report compiled or prepared by a consultant. The complaint falls within paragraph 30(1)(a) of the Act.

Justice tasked the Regional Office and the Deputy Minister’s Office, both of which found no responsive records. The retention period for this kind of record is five years, and the request was made seven years past the disposition date. Justice concluded that, if the records did previously exist, they would have been destroyed.

Given the wording of the request, the OIC pursued the question of whether Justice would have been required to contact the consultant directly in order to conduct a reasonable search. Justice maintained its position that it would not have been reasonable to expect ATIP to task the consultant directly for the 2009 Report because: the business need was time limited due to the specific circumstances of the work conducted; copies of the records held or created under that contract should no longer be in the possession of any contractor; and the matter related to that contract was no longer active.

Accordingly, the OIC concludes that Justice conducted a reasonable search for records in response to the access request.

The complaint is not well founded.

Complaint

[1]     The complainant alleged that the Department of Justice Canada (Justice) did not conduct a reasonable search in response to an access request under the Access to Information Act for documents related to a 2009 Ontario Regional Office workplace-based report compiled or prepared by consultant Jacqueline Lawrence (2009 Report). The complaint falls within paragraph 30(1)(a) of the Act.

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]     On February 15, 2021, the complainant sought the 2009 Report. In response to the request, Justice informed the complainant that its search did not reveal any records responsive to the request. It explained in its response that the departmental retention period for this type of record is five years.

[6]     In the course of the investigation, Justice provided detailed representations outlining the parameters of the search, including details on how each program area conducted the search. Justice confirmed that, upon receipt of the request, it tasked its Ontario Regional Office as well as the Deputy Minister’s Office. The decision to task these offices, and only these offices, was based on Justice’s review of the wording of the request, the context of the request subject matter, and the Access to Information and Privacy (ATIP) unit’s experience in processing similar types of requests.

[7]     The searches were conducted by the Regional Director General and Senior General Counsel, and the Deputy Minister’s Office Manager. They confirmed searching through information holdings including both electronic and paper-based systems. Paper folders were searched manually, and electronic folders were searched using keywords from the text of the request, including the name of the consultant, the consultant’s firm, and the name of the 2009 Report. Both offices returned a nil response.

[8]     The Justice ATIP unit was aware that records of this type would have been retained for a period of five years, in accordance with retention and disposition policies. As this access request was made in 2021, seven years past the retention and disposition date, the Justice ATIP unit indicated that it had determined that it was reasonable to accept the nil responses from the tasked offices. The Justice ATIP unit concluded that if the responsive records did previously exist, the retention period would have passed and therefore the records would have been destroyed and no longer retrievable.

[9]     The complainant was not satisfied with this result, and complained to the Office of the Information Commissioner (OIC). The complainant communicated to the OIC that, after having received a response to their access request, they had contacted the consultant directly to determine whether the consultant had in their possession a copy of the 2009 Report.

[10]     In a March 19, 2021 in an email provided by the complainant to the OIC, the consultant replied that they would have to check their records to see if they still have a copy of the 2009 Report. The complainant further represented to the OIC that the consultant, in a phone conversation that took place that same day, confirmed that they had a copy of the 2009 Report, and that if directed to, the consultant would produce the 2009 Report.

[11]     On June 28, 2022, the complainant emailed the consultant (and copied the OIC), asking them to confirm in writing that they had under their control a copy of the 2009 Report. The OIC is not aware of any reply from the consultant, and has not been provided with any written confirmation from the consultant that they do in fact possess a copy of the 2009 Report.

[12]     The allegation of this complaint is that Justice did not conduct a reasonable search for records in response to the complainant’s request. Therefore, the OIC pursued the question of whether Justice would have been required to contact the consultant directly in order to conduct a reasonable search.

[13]     In response to the OIC’s questions, Justice maintained its position that it would not have been reasonable to expect ATIP to task the consultant directly for the 2009 Report. In addition to the considerations stated above, Justice also provided the following additional information:

• A copy of the contract for the creation of the report was retrieved from procurement, the terms reviewed and confirmed to have applied to activities related and limited to employees within a specific team at that time. It was confirmed that the Offices of Primary Responsibility likely to have records were already tasked in the original retrieval and that the business need was time limited due to the specific circumstances of the work conducted.
• It was also confirmed that, according to the nature of the contract, copies of the records held or created in that contract should no longer be in the possession of any contractor.
• The head of Ontario Regional Office was interviewed and confirmed that the matter related to that contract was no longer active and could not have any bearing to current activities or business of the Department. Therefore, the retention periods referred to above were properly applied.

[14]     The OIC is satisfied with the explanation provided by Justice. Accordingly, the OIC concludes that Justice conducted a reasonable search for records in response to the access request.

[15]     That being said, given the information provided by the complainant during the course of the investigation, Justice has informed the OIC that it will prepare a letter to the consultant seeking to obtain a copy of the 2009 Report if, in fact, they still have a copy in their possession, and will inform the complainant on the outcome of this action accordingly. While this additional step taking by Justice is commendable, it has no bearing on the finding of the OIC’s investigation.

Result

[16]     The complaint is not well founded.

Section 41 of the 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.