Natural Resources Canada (Re), 2021 OIC 35

Date: 2021-11-22
OIC file number: 5820-00156
Institution file number: DC7040-19-349/TR

Summary

The complainant alleged that Natural Resources Canada (NRCan) did not conduct a reasonable search in response to an access request under the Access to Information Act for driving data, including Global Positioning System (GPS) data and driver logbook entries from NRCan’s fleet vehicles for three separate time periods.

The Office of the Information Commissioner’s (OIC) investigation determined that in addition to the search conducted by the Office of Primary Interest for records in NRCan’s corporate repositories, it was also NRCan’s responsibility to retrieve information from a data storage company, where the GPS data for the dates requested was stored.

NRCan conceded that the information stored with the data storage company, despite it not being in NRCan’s physical possession, was under its control for the purposes of the Access to Information Act. As a result, NRCan retrieved the GPS records for the time periods in question. NRCan also located additional logbook records responsive to the request, subsequent to an additional search. The logbook records as well as the GPS data were provided to the complainant during the course of the investigation.

The complaint is well founded.

Complaint

Investigation

Reasonable Search

NRCan was required to conduct a reasonable search for records that fall within the scope of the access request – that is, one or more experience employees, knowledgeable in the subject matter of the request, must have made reasonable efforts to identify and locate all records related to the request.

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.

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?

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

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.

The OIC’s investigation revealed that the OPI most likely to have records relevant to the access request under their control, searched for records in the appropriate repositories. The OPI provided the records to the Access to Information and Privacy unit for processing. Records responsive to the request were then provided to the complainant.

However, the OIC’s investigation also determined that it was NRCan’s responsibility to retrieve information from a data storage company, where the GPS data for the dates requested was stored.

The OIC determined that this information was under the control of NRCan within the meaning of the two-step legal test established by the Supreme Court of Canada for determining whether an institution has control of a record that is not in its physical possession (Canada (Information Commissioner) v. Canada (National Defence), 2011 SCC 25, paras. 48, 54-56).

In particular, the GPS information at issue relates to an NRCan departmental matter, and having regard to all relevant factors, NRCan could reasonably expect to obtain a copy from the data storage company upon request. For example, the GPS information reflects the movement of NRCan owned vehicles driven by NRCan employees. In addition, the legal relationship between NRCan and the data storage company acknowledged that the GPS information belonged to NRCan, and provided for a mechanism through which NRCan could retrieve GPS information on request. In the circumstances, a reasonable search required NRCan to obtain this data – which, while not in its physical possession, was nonetheless under its control for the purposes of the Access to Information Act.

In light of the above, the OIC determined that NRCan had not met its obligations under the Access to Information Act to conduct a reasonable search for records.

During the course of the investigation, NRCan conceded that the information stored with the data storage company was under its control and responsive to the access request.

As a result of the OIC investigation, NRCan retrieved GPS records for the time periods in question. NRCan also located additional logbook records responsive to the request. This additional information was provided to the complainant in a supplementary release.

Result

The complaint is well founded.

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.