Office of the Auditor General of Canada (Re), 2022 OIC 40

Date: 2022-08-12
OIC file number: 5819-03392
Institution file number: A-2019-00003

Summary

The complainant alleged that the Office of the Auditor General of Canada (OAG) had incorrectly decided that witness statements and documentation employed to support a harassment investigation final report were not under its control and that it could not, therefore, give access to these records in response to an access request under the Access to Information Act. The complaint falls within paragraph 30(1)(a) of the Act.

Although the records were not in the physical possession of the OAG, the Office of the Information Commissioner found that several relevant factors pointed to the records being under the control of the OAG. During the investigation, the OAG retrieved and processed the responsive records.

The complaint is well founded.

Complaint

[1]      The complainant alleged that the Office of the Auditor General of Canada (OAG) had incorrectly decided that witness statements and documentation employed to support a harassment investigation final report were not under its control and that it could not, therefore, give access to these records in response to an access request under the Access to Information Act. The complaint falls within paragraph 30(1)(a) of the Act.

Investigation

Control of records

[2]      The Act provides requesters with a right of access to records that are under the control of government institutions. While the Act does not define “control,” the Supreme Court of Canada held that the term should be interpreted broadly and liberally to provide a meaningful right of access. (See Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25)

[3]      Records under the control of institutions need not be restricted to records in the physical possession of a government institution.

• When institutions do not have physical possession of the records, they must, in order to determine whether they have the records under their control, consider whether the records relate to a departmental matter and, if so, whether a senior official of the institution should reasonably expect to obtain a copy of the records upon request. Institutions must consider all relevant factors when making this determination.
• When institutions have physical possession of the records, they must consider all relevant factors when determining whether they have the records under their control.

[4]      In both cases, the precise factors to be considered vary depending on the circumstances. Such factors include and are not limited to whether the content of the records is relevant to the mandate, obligations, operations and functions of the institution, who created the records and why the institution created or obtained them. Generally, no one factor is determinative. Consequently, records are under the control of an institution when, taken together, the factors support such a finding.

[5]      When records are not under the control of the institution, they do not fall within the scope of the Act. Therefore, institutions are not required to give access to them.

Are the records under the institution’s control?

[6]      The records at issue are investigative records created or compiled by Gowling WLG (hereinafter referred to as the “law firm”), during a harassment investigation over which the OAG had authority, and paid the firm to conduct. The firm was hired as the Investigator.

[7]      While the final report was provided to the OAG, the records used to prepare the final report, including the witness statements, and other documentation were not. As the records at issue were not in the physical possession of the OAG, the relevant test to determine control is set out in the decision of the Supreme Court in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, paras. 54-56). These factors and others are discussed below.

1. Do the contents of the records relate to an institutional matter?

[8]      The OAG agreed that the records relate to an institutional matter, as they relate to the investigation of a harassment complaint. The contents of the records relate to the mandate, obligations, operations and functions of the institution, as the OAG is obligated to investigate complaints of harassment in the workplace.

2. Does the institution have a legally enforceable right of access to the records?

[9]      Although the OAG stated that it did not need to consult the records at issue in this case, the question at hand was whether the OAG could reasonably expect to do so if it wished.

[10]    The issue of control, or lack thereof, does not depend on whether the institution did, in fact, need to consult specific records in a given instance. The issue is, instead, whether a senior OAG official should reasonably expect to obtain the records on request. 

[11]    The Terms of Reference for the investigation state that the investigation must be “conducted pursuant to the Policy on Workplace Investigations, as indicated in section 8.4.5 of the Harassment-free Workplace Directive.” The OAG provided these documents to the OIC during the investigation. They indicate that the OAG has a legally enforceable right to access the records at issue. 

[12]    Examples of indications of a legally enforceable right to access the records, from the Policy on Workplace Investigations, include the following:

• The OAG Senior Officer (the OAG employee responsible for supervising the Investigator) is responsible for managing the Investigator who must conduct the investigation in accordance with the Policy. This includes ensuring that allegations and matters included in the complaint being investigated thoroughly and objectively, and ensuring procedural fairness.
• The interview notes are a part of the investigation record and belong to the investigation.
• When necessary, the OAG Senior Officer will return the report to the Investigator for revisions to ensure its completeness, including to ensure that all conclusions are supported by the evidence and application of the appropriate policies or standards.

[13]    Furthermore, the OAG would be expected to have a legally enforceable right to review the work products – the records at issue – to verify billing information for accuracy.

[14]    In light of the above, the OIC finds that the OAG has a legally enforceable right to review the records at issue. The OAG would not be able to follow its own Policy without a legally enforceable right to obtain these records.

3. Does the communication of the content of the records require the authorization of an officer or employee of an institution?

[15]    In this case, the records have been described as containing the highly sensitive personal information of OAG employees. The OAG argued that there was no contractual obligation for the Investigator to seek the OAG’s authorization before sharing the records, but accepts that the Investigator has obligations to meet in the handling of such personal information, as it is subject to privacy legislation.

[16]    The OAG’s Policy on Workplace Investigations sets out certain circumstances where communication of the content of the records would be appropriate. The OIC agrees with the OAG that under certain circumstances the Investigator would not need to obtain express authorization from the OAG to communicate this type of information.

[17]    However, it is also relevant to consider whether the Investigator would need the OAG’s authorization to share the content of the records beyond what has been defined as appropriate in the course of the investigation. The OIC does not accept that the Investigator could, for example, post excerpts from the records on a website or otherwise disclose the information, without the OAG’s authorization. In this sense, it is apparent that communication of the content of the records would require the OAG’s authorization.

[18]    The OIC concludes that communication of the content of the records require the authorization of the institution.

4. Did the institution rely on the records when preparing other government records?

[19]    While the OAG does not appear to have, itself, relied on the records at issue when preparing other government records, it is clear that the law firm relied on these records when preparing other government records – the preliminary and final reports, which were then provided to the OAG.

[20]    The Investigator was performing services for the OAG and being paid with public funds. As such, the Investigator was acting on the government’s behalf when relying on the records at issue to prepare the preliminary and final reports.

5. Should a senior official of the institution reasonably expect to obtain a copy of the records upon request?

[21]    During the course of the investigation, a senior official of the OAG informed the OIC that it had been in touch with the Investigator and requested a copy of the records at issue in order that they be processed under the Act. The OAG informed the OIC that the law firm agreed to provide a copy of the records at issue.

[22]    Based on the factors above, taken together, the OIC concludes that the test set out in Canada (Information Commissioner) v. Canada (Minister of National Defence) is met. The witness statements and documentation employed to support a harassment investigation final report are under the control of the OAG and fall within the scope of the Act.

[23]    The OAG ultimately conceded that the records were under its control and agreed to retrieve the records at issue. The OAG obtained these records from the law firm. The OAG also agreed to respond to the access request, which means giving access to the records in full, unless the information is withheld in whole or in part on the basis of specified provisions in the Act.

[24]    On August 8, 2022, the OAG issued an interim release to the complainant. The complainant informed the OIC that they were satisfied with the OAG’s response to the access request and that no further records were necessary.

Result

[25]    The complaint is well founded.

When a complaint falls within the scope of 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. 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.