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Privy Council Office (Re), 2024 OIC 70

Date: 2024-11-04
OIC file number: 5822-07530
Access request number: A-2018-00462

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 related to the review of the Canadian intelligence program carried out by the Intelligence Advisory Committee (IAC) for consideration by the Cabinet Committee for Security and Intelligence (CCSI), between January 1972 and June 1975.

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, 265 additional pages of responsive records were identified.

The Information Commissioner ordered that PCO provide a subsequent response to the access request by March 18, 2025.

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:

[2]      Records related to the review of the Canadian intelligence program carried out by the Intelligence Advisory Committee (IAC) for consideration by the Cabinet Committee for Security and Intelligence (CCSI), between January 1972 and June 1975. This review is sometimes referred to the IAC documentation as the ‘Supply’ and ‘Demand’ study.

[3]      The records include, but are not limited to, the following:

  • IAC letter of June 1972 to Deputy Ministers requesting input into this study;
  • CCSl discussion of the plan for the ‘Demand’ study, during the spring of 1973;
  • IAC discussion of the ‘Demand’ study, October 1973, including copies of any documents prepared for this discussion;
  • Draft submission to ICSI of the ‘Supply’ and ‘Demand’ studies discussed at IAC meeting of 10 June 1974;
  • Revised draft submission of the review discussed at ICSI meeting of 4 September 1974;
  • Further revised submission approved by the IAC on 25 September 1974;
  • CCSI discussion of the review at their meeting of 15 January 1975;
  • Memo from Hall to Gordon Robertson dated 27 January 1975; and Final version of the review considered by CCSI and approved on 20 March 1975.

[4]      The allegation falls within paragraph 30(1)(a) of the Act.

Investigation

[5]      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.

[6]      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.

[7]      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?

[8]      The potential records at issue comprise records related to the review of the Canadian intelligence program carried out by the IAC for consideration by the CCSI, between January 1972 and June 1975.

[9]      As part of their complaint and representations to the Office of the Information Commissioner (OIC), the complainant alleges that the following records, while specifically requested, were not included in the response to the request:

  • IAC letter of June 1972 to Deputy Ministers requesting input into the study;
  • CCSI discussion of the plan for the ‘Demand’ study, during the spring of 1973;
  • IAC discussion of the ‘Demand’ study, October 1973, including copies of any documents prepared for this discussion;
  • Draft submission to ICSI of the ‘Supply’ and ‘Demand’ studies discussed at IAC meeting of June 10, 1974;
  • Revised draft submission of the review discussed at ICSI meeting of September 4, 1974;
  • Further revised submission approved by the IAC on September 25, 1974;
  • CCSI discussion of the review at their meeting of January 15, 1975; and
  • Memo from Hall to Gordon Robertson dated January 27, 1975.

[10]    Additionally, the complainant maintains that the documents that were provided by PCO included references to additional relevant records that were missing from the response:

  • The MC “The Canadian Intelligence Program” 27 Sep 1974, refers to an annex containing the ‘Supply’ and ‘Demand’ studies (see para. 4 on page 58 of release); according to the complainant, this annex was not included in the release.
  • The MC “The Canadian Intelligence Program” undated c. March 1975, refers to two supporting papers— according to the complainant, these are very likely to be the ‘Supply’ and ‘Demand’ studies (see para. 1 on page 46 of release); these annexes were not included in the release.

[11]    In light of the above, I could not be satisfied that PCO demonstrated that a reasonable search occurred in response to the request.

[12]    Accordingly, the OIC sought representations from PCO concerning its search for the requested records.

[13]    In response, PCO advised the OIC of the following:

  • PCO Access to Information and Privacy (ATIP) initially tasked three (3) Offices of Primary Interest (OPIs) to search for relevant records on February 19, 2019 - Security and Intelligence Secretariat (S&I), Intelligence Assessment Secretariat (IAS), and PCO’s Information Management Operations (IM Ops). By March 6, 2019, IAS and IM Ops provided records, which were processed in PCO’s response to the requester, and S&I provided a nil response.
  • Following receipt of the OIC’s request for representations, S&I, IAS, and IM Ops were tasked with conducting a secondary search for records. S&I provided a nil response, noting that S&I does not store any historical security and intelligence related materials in their holdings/databases and that IM Ops would be the best resource to provide any historical S&I documents. IM Ops provided seven (7) documents consisting of 235 pages relevant to the request and IAS provided three (3) documents consisting of twenty-eight pages relevant to the request, for a total of 265 additional pages.
  • PCO will be expediting the review of the 263 additional pages of responsive records located for this request. In determining whether this additional information can be released under the Act, PCO advised it must first complete consultations with the Communications Security Establishment, the Department of National Defence, Global Affairs Canada and the Treasury Board Secretariat of Canada, as well as conduct internal consultations.
  • Based on the turnaround time from the other government departments, PCO has committed to provide a subsequent response to the access request by March 18, 2025.

[14]    In light of the above, I am now satisfied that PCO has conducted a reasonable search for responsive records. While the response date provided is several months from now, the complainant has agreed to accept it. I expect PCO to therefore ensure that it meets the March 18, 2025 date and I encourage its officials to respond sooner.

Outcome

[15]    The complaint is well founded.

Order

I order the Clerk of the Privy Council to:

  1. Complete the retrieval of all records responsive to the request.
  2. Process all additional pages of records located as a result of the additional searches.
  3. Provide a supplementary response to the access request by no later than March 18, 2025.
  4. 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 September 17, 2024, I issued my initial report to the Clerk of the Privy Council setting out my order(s).

On October 30, 2024, the Assistant Secretary to the Cabinet, Ministerial Services and Corporate Affairs gave me notice that PCO would be implementing my order. PCO advised that there are 263 pages of responsive records for this request and consultations are required with the Communications Security Establishment (CSE), Canadian Security Intelligence Service (CSIS), Department of National Defence (DND), Global Affairs Canada (Global Affairs), Immigration, Refugees and Citizenship Canada (IRCC), and the Royal Canadian Mounted Police (RCMP). The consultations are expected to be completed by January 6, 2025. Once received, a review from PCO’s Intelligence Assessment Secretariat (IAS) and Security and Intelligence Secretariat (S&I) will be required. PCO is expediting the review of records in order to provide a response by the ordered response 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.

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