Immigration and Refugee Board of Canada (Re), 2022 OIC 60

Date: 2022-06-08
OIC file number: 5820-02055
Institution file number: A-2020-00248/SD

Summary

The complainant alleged that the Immigration and Refugee Board of Canada (IRB) had failed to perform a reasonable search for records in response to a request made under the Access to Information Act for all final decisions rendered pursuant to section 37 of the Immigration and Refugee Protection Act (IRPA) from January 2018 until June 2020. The complaint falls within paragraph 30(1)(a) of the Access to Information Act.

During the investigation, the Office of the Information Commissioner (OIC) learned that the IRB tasked the appropriate program areas with the retrieval of the requested records but the Access to Information and Privacy (ATIP) office had informed the Office of the Primary Interest (OPI) that only written decisions were being sought. This instruction ultimately reduced the scope of the request without the complainant’s approval. Despite the IRB’s justifications that audio recordings are only provided when specifically requested, the issue remained that audio recordings of final decisions fall within the scope of “all final decisions” and under the Act, a record means any documentary material, regardless of medium or form.

The Information Commissioner ordered that the IRB process all audio recordings within the scope of the request forthwith.

The IRB gave notice to the Commissioner that it would implement the order.

The complaint is well founded.

Complaint

[1]      The complainant alleged that the Immigration and Refugee Board of Canada (IRB) had failed to perform a reasonable search for records in response to a request made under the Access to Information Act for all final decisions rendered pursuant to section 37 of the Immigration and Refugee Protection Act (IRPA) from January 2018 until June 2020.

Investigation

[2]      IRB 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]      In response to the access request, the IRB provided the complainant with records pertaining to 101 final decisions rendered under section 37 of IRPA between January 2018 and June 2020.

[6]      From the outset of the investigation, the complainant noted that according to the statistics on the IRB’s website, there were 292 final decisions in that timeframe.

[7]      The IRB submitted that any discrepancies between the statistics posted to its webpage and the actual number of final decisions rendered could be a result of differences in timeframes, or a result of combined, withdrawn or abandoned cases.

[8]      The IRB provided evidence that would indicate that there were a total of 269 decisions rendered in the requested timeframe: 101 were documented on paper whereas another 168 were rendered orally without any readily available transcript. The IRB also confirmed that all hearings and verbal decisions are recorded (i.e., audio recording).

[9]      According to the evidence provided by the IRB, the IRB Access to information and Privacy (ATIP) erroneously indicated to the Office of Primary Interest (OPI) that the complainant was only seeking “written decisions/reasons”. To this effect, the IRB confirmed with the OIC that the scope of the request was never modified by the complainant. By informing the OPI that the request sought “written decisions” only, rather than “all final decisions”, including audio recordings, means that the IRB ATIP ultimately reduced the scope of the request without the complainant’s approval.

[10]    When the OIC requested representations pertaining to why the IRB failed to provide the audio recordings responsive to the request, the IRB explained that it had no indication the complainant was interested in receiving audio recordings as they were not included, nor mentioned, in his request. Further, the IRB stated that it only provides audio recordings when they are specifically requested, and that the complainant had many opportunities to inform the IRB he was interested in receiving audio recordings.

[11]    Despite the IRB’s justifications, the issue at hand remains that audio recordings of final decisions fall within the scope of “all final decisions.” Under the Act, a record means any documentary material, regardless of medium or form and under subsection 4(2.1), every reasonable effort must be made to assist the person in connection with the request, including by responding to the request accurately and completely.

[12]    In light of the above, I am of the view that the IRB did not perform a reasonable search for records. Audio recordings are records and must be processed when responsive to requests made under the Act.

Result

[13]    The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the Chairman of the IRB to:

1. Process all audio recordings within the scope of the request forthwith.
2. Email a copy of the response letter to the Office of the Information Commissioner’s Registrar (Greffe-Registry@oic-ci.gc.ca).

Institutions must abide by the terms of subsection 37(4) when disclosing any records in response to my order.

On March 9, 2022, I issued my initial report to the Chairman of the IRB setting out my order.

On April 1, 2022, the Chairman of the IRB gave me notice that he would be implementing my order.

Section 41 of the Act provides a right to any person who receives this report to apply to the Federal Court for a review. Complainants and institutions must apply for this review within 35 business days after the date of this report. The person who applies for a review must 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, this order will take effect in accordance with subsection 36.1(4).