Environment and Climate Change Canada (Re), 2021 OIC 36

Date: 2021-12-08
OIC file number: 3218-00063
Institution file number: A-2017-01727/VC

Summary

The complainant alleged that Environment and Climate Change Canada (ECCC) did not conduct a reasonable search for records in response to an access request made under the Access to Information Act for all reports or assessments, including drafts, conducted by the Northgate Group in possession of any staff of the Enforcement Branch within ECCC.

The investigation confirmed that ECCC made edits directly to a draft report provided by the contractor, Northgate Group, thereby overwriting a contract deliverable and record that should have been saved to a corporate repository.

During the investigation, it was confirmed that the original draft report provided by the Northgate Group no longer exists as neither ECCC nor the Northgate Group retained a copy.

The direct consequence of saving edits over the original draft report irreversibly undermined the right of access.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Environment and Climate Change Canada (ECCC) did not conduct a reasonable search for records in response to an access request made under the Access to Information Act for all reports or assessments, including drafts, conducted by the Northgate Group in possession of any staff of the Enforcement Branch within ECCC.

Investigation

Reasonable Search

[2]      ECCC 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 a search for responsive records where they are likely to be stored.

[4]      This search does not have to be perfect. An institution therefore is 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?

[5]      During the course of the investigation, the Office of the Information Commissioner (OIC) reviewed documentation related to ECCC’s search for responsive records.

[6]      The OIC examined the responses of the Office of Primary Interest (OPI) to determine whether they had fulfilled their obligations under the Access to Information Act to identify records relevant to the access request, under their control.

[7]      In response to OIC inquiries, ECCC identified and processed an additional 122 pages of records that it acknowledged ought to have been located and processed when responding to the request.

[8]      Notwithstanding this supplementary disclosure, the complainant maintained that a reasonable search ought to have resulted in ECCC’s retrieval and identification of a further responsive record, namely: an original draft report submitted by Northgate Group to a senior ECCC official in accordance with a contract deliverable. According to the complainant, the report that was released does not contain one of the key findings by Northgate Group, i.e. whether enforcement officers working for ECCC should be armed. The complainant alleged that there must be a copy of the draft report somewhere and if not, questioned whether it had been edited or deleted.

[9]      The investigation confirmed that in January 2017, ECCC entered into a contract valued at over $300,000 to conduct research and produce a report that would review ECCC enforcement officer activities, policies, equipment and training regarding the use of force and officer safety.

[10]    On November 7, 2019, in response to an order for the production of records issued by the OIC, ECCC provided an overview of the circumstances relating to the gathering of records in response to the access request.

[11]    The investigation revealed that one of the contract deliverables, the draft report, was provided to ECCC on USB key. Once received, a senior ECCC official made changes deemed necessary, saving the edits directly to the USB key version and overwriting the draft report produced by the Northgate Group. The document was considered by this ECCC senior official as only a draft, transitory in nature, able to be amended by ECCC as needed, and not formally approved for publication or release by ECCC.

[12]    Library and Archives Canada (LAC) defines transitory records as follows:

Transitory records are not of business value. They may include records that serve solely as convenience copies of records held in a government institution repository, but do not include any records that are required to control, support, or document the delivery of programs, to carry out operations, to make decisions, or to provide evidence to account for the activities of government at any time.[ See http://www.bac-lac.gc.ca/eng/services/government-information-resources/disposition/Pages/faq.aspx]

[13]    The Treasury Board Secretariat Policy on Service and Digital requires Deputy Heads to ensure that decisions and decision-making processes are documented.

[14]    The Directive on Service and Digital requires that ECCC’s Chief Information Officer ensures “that an approved Government of Canada enterprise information management solution is used to document business activities, decisions and decision-making processes”. All employees are responsible for documenting activities and decisions of business value and managers are responsible to inform them of their duty to do so.

[15]    In keeping with LAC’s definition of transitory records, it is abundantly clear that the draft report provided by the Northgate Group, as one of the deliverables of a $300,000 (plus) contract, should not have been considered transitory. The draft report should have been properly saved to, and kept in, an ECCC corporate repository.

[16]    During the investigation, it was confirmed that the original draft report provided by the Northgate Group no longer exists as neither ECCC nor the Northgate Group retained a copy.  Whether the draft report contained a key finding that was later deleted or edited, as alleged by the complainant, could not be confirmed by the OIC’s investigation.

[17]    The preservation of the draft report in its original form as a deliverable provided by the Northgate Group, along with subsequent modifications to the document as thought appropriate or necessary by the former ECCC CEO, would have allowed the complainant and Canadians to understand the decision-making process on this important issue. Unfortunately, the direct consequence of saving edits over the original draft report on the USB key irreversibly undermined the right of access.

[18]    The right of access under the Access to Information Act generally only applies to existing records under a government institution’s control (subject to circumstances described in subsection 4(3) which permit records to be produced from machine-readable records). Given that at the time of the request the draft report no longer existed and could not be re-produced, the OIC has exhausted its jurisdiction to investigate the reasonable search complaint.

[19]    As pointed out in my submission to the President of the Treasury Board in the context of the Government’s Review of the Access to Information Regime launched last year, the right of access cannot exist without records. Proper documentation of key actions and decisions made by institutions is fundamental for the right of access as it strengthens responsibility, transparency, good governance and public trust.

[20]    Given ECCC’s identification of an additional 122 pages of records, which it conceded ought to have been identified and processed in response to the request, the OIC’s investigation of this reasonable search complaint is well-founded. I must add that it is troubling, to say the least, that a record of business value, which ought to have existed at the time of the request, was not preserved thereby impacting upon the complainant’s right of access.

Result

[21]    The complaint is well founded.

Recommendation

I recommend the Deputy Minister of Environment and Climate Change Canada:

1. Provide training to staff at all levels of the organization regarding their obligations as they relate to access to information, recordkeeping and information management, including the requirements of the Policy and Directive on Service and Digital.

On October 20, 2021, I issued my initial report to the Deputy Minister of Environment and Climate Change setting out my intended recommendation.

On November 19, 2021, the Deputy Minister of Environment and Climate Change gave me notice that she would be implementing my recommendation. Specifically, she stated that, since the time of the complaint, ECCC has strengthened its processes around training, learning and development to adapt its information management practices in the following ways:

• ECCC has enabled access for all of its employees to records management training courses offered through the Canada School of Public Service, as well as in-house in-class and virtual learning sessions;
• ECCC has developed an Environment and Climate Change Canada 101 orientation course for new employees, which includes an information management component;
• ECCC has implemented multiple blitz communication campaigns throughout the year with a focus on IM best practices during the COVID-19 pandemic, good record keeping in a changing digital workspace, and promotion of upcoming training opportunities; and
• ECCC has relaunched the IM Working Group to provide ongoing support around information management practices, develop peer learning, and support promotion of new learning opportunities as the training courses mature.

She further assured me that ECCC remains committed to continually improving its records management practices and will continue to develop its learning approach by leveraging and improving its digital workspace with guided learning and micro courses as employees use this workspace on the job to ensure they retain what they learned.

Finally, ECCC senior officials will be reminded of their duty to ensure that decisions and decision-making processes are properly documented.

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.