Indigenous Services Canada (Re), 2023 OIC 17

Date: 2023-07-11
OIC file number: 5821-04307
Institution file number: A-2018-00499

Summary

The complainant alleged that Indigenous Services Canada (ISC) did not conduct a reasonable search in response to an access request under the Access to Information Act for records from 2014 onwards related to the National Priority Ranking Framework, the Priority Framework for Water and Wastewater Projects, and long-term First Nations Infrastructure Investment Plans - including internal correspondence. The complaint falls within paragraph 30(1)(a) of the Act.

The investigation determined that the Offices of Primary Interest (OPIs) tasked with retrieval of responsive records may not have been the only appropriate OPIs to task, and that additional OPIs may hold responsive records.

The Information Commissioner ordered that ISC conduct a new search for additional records that respond to the access request and provide a new response once the search is complete that either gives access to any additional records or identifies why no such records were located.

ISC responded that it would implement the orders and expand the breadth of its search and provide any additional records by July 31, 2023.

The complaint is well founded.

Complaint

[1]     The complainant alleged that Indigenous Services Canada (ISC) did not conduct a reasonable search in response to an access request under the Access to Information Act for records from 2014 onwards related to the National Priority Ranking Framework, the Priority Framework for Water and Wastewater Projects, and long-term First Nations Infrastructure Investment Plans - including any internal correspondence, reports, memos, briefings, audits, and assessments. The complaint falls within paragraph 30(1)(a) of the Act.

Investigation

[2]     ISC 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]     ISC initially responded to the request with 44 pages of responsive records.

[6]     During the course of the investigation, the Office of the Information Commissioner (OIC) asked ISC to provide details related to the search for responsive records, in particular regarding tasking and search methodology. ISC responded that two offices of primary interest (OPIs) were tasked – the Regional Operations (RO) and the Policy and Strategic Direction (PSD), neither of which appeared to be the appropriate OPI for internal correspondence or primary interest exchanges relating to the subject matter of the request. While ISC stated that there were no other OPIs that may have relevant records, both RO and PSD indicated that they were not the appropriate OPI. ISC has since stated that they have identified additional OPIs that may hold responsive records. However, to date, these additional searches have not been completed.

[7]     ISC was unable to provide concrete details regarding the parameters of the searches conducted, due to the passage of time and staff turnover. ISC was also unable to explain what steps were taken to ensure that all records reasonably related to the access request were located, including internal correspondence, reports, memos, briefings, audits, and assessments. Institutions are expected to document the efforts they made to search for, identify, and retrieve responsive records. In this case, these efforts were not sufficiently documented.

[8]     The onus is on institutions to provide sufficient evidence to show that they conducted a reasonable search for responsive records. To date, ISC has not provided sufficient evidence to show that they conducted a reasonable search.

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

Result

[10]     The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order Minister of Indigenous Services to:

1. Conduct a new search for additional records that respond to the access request, in accordance with the points set out in the report.
2. Provide a new response to the complainant once the search is complete.
3. Give access to any additional responsive records, unless access to them, or to part of them, may be refused under a specific provision(s) of Part 1 of the Act. When this is the case, name the provision(s).
4. If no additional responsive records are identified or located during the search, indicate in the response how and where the search was conducted and why no such records were identified or located.

On May 10, 2023, I issued my initial report to the Minister of Indigenous Services setting out my order.

On June 30, 2023, the Minister of Indigenous Services gave me notice that ISC would be implementing my order. Specifically, ISC has expanded the breadth of its search and will be providing records to the complainant by July 31, 2023.

When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They must apply for this review 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 these deadlines, this order takes effect on the 36th business day after the date of this report.