Privy Council Office (Re), 2024 OIC 40
Date: 2024-07-11
OIC file number: 5819-03858
Access request number: A-2019-00281
Summary
The complainant alleged that the Privy Council Office (PCO) did not conduct a reasonable search in response to an access request under the Access to Information Act for records contained in Ops 3 and Ops 4 files.
The allegation falls within paragraph 30(1)(a) of the Act.
The investigation determined that the Offices of Primary Interest did not retrieve all relevant records when they were tasked to do so. PCO was unable to show that it conducted a reasonable search for all of the records responsive to the access request. The Office of the Information Commissioner asked PCO to conduct a subsequent search for all relevant records. As a result, 251 pages of responsive records were identified.
The Information Commissioner ordered that PCO provide a subsequent response to the access request by December 22, 2024.
PCO gave notice to the Commissioner that it would be implementing the order.
The complaint is well founded
Complaint
[1] The complainant alleges that the Privy Council Office (PCO) did not conduct a reasonable search in response to an access request under the Access to Information Act for the following:
The records contained in the following "Ops 3" files:
File 665-1 - ICSI General (S-1-23)
The records contained in the following "Ops 4" files:
File 588-1 - ICSI General (S-1-30)
These records are likely to be found in the files stored in the S&I branch special archives as indicated on the attached file listing. If these records have been transferred to LAC or elsewhere, please provide copies of the relevant records disposition authorities, dates of disposition and the disposition action taken.
[2] The allegation falls within paragraph 30(1)(a) of the Act.
Investigation
[3] PCO 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.
[4] 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.
[5] 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?
[6] PCO responded to the access request with two (2) pages of responsive records. In their complaint, the complainant alleged that PCO did not provide any of the requested records; rather, the records provided were a Records Retention and Disposal Authority form. This form describes PCO's responsibility for handling historically significant records as listed in the form, by describing the retention period for the records (30 years) and the authorized form of disposal (transfer to Library and Archives Canada). The complainant further alleged that the form provides no information on the actual disposition of any specific records.
[7] The complainant maintained that the requested records are included in the listing of PCO files that were provided to the complainant in response to a separate request to PCO. The Office of the Information Commissioner (OIC) confirmed that the list shows files under the Interdepartmental Committee on Security and Intelligence – 665-1 and 588-1.
[8] The OIC was not convinced that a reasonable search for the requested records was conducted and that all relevant records were located and processed. In particular, the OIC questioned why no documents from the files shown in the list under the Interdepartmental Committee on Security and Intelligence were located, processed and provided to the complainant in response to the request.
[9] The OIC sought representations from PCO concerning its search for the requested records. In response, PCO advised the OIC that, following a subsequent search, 251 pages of responsive records were identified by Information Management (IM) Operations in archival boxes in the central repository. Following a number of required consultations with other government institutions and its review and approval process, PCO committed to providing a complete response to the access request by December 22, 2024.
[10] In light of the above, I am not satisfied that PCO conducted a reasonable search for responsive records at the time it first processed the request.
Outcome
[11] The complaint is well founded.
Order
I order the Clerk of the Privy Council to:
- Complete the retrieval of all records responsive to the request.
- Process all additional pages of records located as a result of the additional searches.
- Provide a supplementary response to the access request by December 22, 2024.
- Give the complainant access to 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).
Initial report and notice from institution
On May 15, 2024, I issued my initial report to the Clerk of the Privy Council setting out my order.
On June 25, 2024, the Assistant Secretary to the Cabinet, Ministerial Services and Corporate Affairs gave me notice that PCO would be implementing my order and would provide a supplementary response to the access request by December 22, 2024. Furthermore, PCO advised that there are 251 pages of additional responsive records for the request and consultations are required with the Royal Canadian Mounted Police, Canadian Nuclear Safety Commission, Global Affairs Canada, Canadian Security Intelligence Service, Communications Security Establishment, and the Department of National Defence. These consultations are expected to be completed by November 2024. PCO is expediting the review of records in order to provide the supplementary response by the December 22, 2024 date.
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, this order takes effect on the 36th business day after the date of this report.