Global Affairs Canada (Re), 2023 OIC 43

Date: 2023-12-11
OIC file number: 5820-04289
Institution file number: A-2019-02396

Summary

The complainant alleged that Global Affairs Canada (Global Affairs) did not conduct a reasonable search in response to an access request under the Access to Information Act. The request was for records related to roundtable discussions held in 2010 regarding international education and the "Statement of Principles for the Ethical Recruitment of International Students by Education Agents and Consultants", also known as the “London Statement”, as well as information related to the reasons why Canada chose not to endorse the statement. The allegation falls within paragraph 30(1)(a) of the Act.

The investigation determined that additional records that would have been responsive to the request ought to have existed but, through inadvertence, they had not been preserved. Global Affairs conducted additional searches and found additional records.

The Information Commissioner recommended that Global Affairs save all records of business value to their corporate repositories and remind employees of their information management responsibilities.

The Commissioner also ordered Global Affairs to provide the additional records to the complainant. Global Affairs gave notice to the Commissioner that it would be implementing the recommendations and orders.

The complaint is well founded.

Complaint

[1]     The complainant alleged that Global Affairs Canada (Global Affairs) did not conduct a reasonable search in response to an access request under the Access to Information Act. The request was for records related to roundtable discussions held in 2010 regarding international education and the "Statement of Principles for the Ethical Recruitment of International Students by Education Agents and Consultants", also known as the “London Statement”, as well as information related to the reasons why Canada chose not to endorse the statement. The allegation falls within paragraph 30(1)(a) of the Act.

Investigation

Reasonable Search

[2]     Global Affairs 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) reviewed documentation related to Global Affairs’ 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 Act to make reasonable efforts to identify and locate all records reasonably related to the access request under their control. The Investment, Innovation and Education unit was tasked with searching for relevant records as this is the unit responsible for International Education, which is the subject of the request. The OIC’s investigation confirmed that this was the OPI which ought to have held records relevant to the access request under its control and that an experienced employee conducted the search for records through databases, as well as electronic and paper files. Despite these efforts, only a few records were retrieved and provided to the complainant in response to the access request.

[7]     During the investigation, Global Affairs was questioned regarding the limited number of pages identified in response to the request. It responded by acknowledging that pursuant to its 20-year retention and disposition policy, additional records of business value that would have been responsive to the request ought to have existed at the time the access request was received. Global Affairs, however, stated that through inadvertence, such records had not been preserved.

[8]     By way of explanation, Global Affairs stated that, during the time of the London Statement, employees had not followed “proper operational filing” of emails, and IT accounts and documents were destroyed 90 days following employees’ departures. Also, the employee primarily involved in the London Statement was transferred oversees, and while their emails and files were saved to a USB thumb drive, that thumb drive malfunctioned and those could not be recovered. Meanwhile, paper copies of reports and emails from that timeframe, which had been kept in filing cabinets, were destroyed following the unit’s relocation.

[9]     As a result of further queries from my office, Global Affairs however conducted additional searches, including tasking former employees of the unit involved in the London Statement with further searches for responsive records. Through those efforts, some additional records were found. More specifically, a former employee of the OPI located an additional record on an internal drive that was missed during the initial search. In addition, a CD-ROM containing records responsive to the access request was found.

[10]     I find that Global Affairs did not conduct a reasonable search when initially responding to the request. Where, as here, it was clear that additional records responsive to the request should have existed at the time of its receipt of the request, it is my view that, it was unreasonable for Global Affairs to have failed to pursue further inquiries.

[11]     The investigation raises serious concerns about information management practices at Global Affairs. The right of access cannot exist without records, it is therefore contingent on institutions’ proper documentation and retention of records of business value. The investigation brings to the fore the importance of these matters.

Outcome

[12]     The complaint is well founded.

Orders and recommendations

I order the Minister of Foreign Affairs to:

1. Provide a new response to the complainant, which includes the records that have been identified as responsive to the access request during the course of the investigation, located on the internal drive and on the CD-ROM, no later than the 36th business day following receipt of my final report;
2. Give access to the additional responsive records found, subject to applicable exceptions (exemptions and/or exclusions) to the right of access set out in Part 1 of the Act which are to be identified when providing the new response.

I also recommend that the Minister of Foreign Affairs take measures to ensure that:

1. All records of business value, currently stored on the CD-ROM located during the investigation, are saved within Global Affairs’ corporate repositories.
2. Global Affairs’ employees are reminded of their information management responsibilities, including through specific training and information sessions, and instructed to comply with those responsibilities.

Initial report and notice from institution

On November 8, 2023, I issued my initial report to the Minister of Foreign Affairs setting out my orders and recommendations.

On November 29, 2023, the Director of the Access to Information and Privacy Protection Division gave me notice that he would be implementing the orders and recommendations. Global Affairs intends to provide a complete response on or before December 20, 2023 and save the records currently stored on the CD-ROM within Global Affairs’ corporate repositories. Global Affairs also indicated that training sessions regarding information management responsibilities were provided to Global Affairs’ employees and will continue to be provided.

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.