Privy Council Office (Re), 2024 OIC 71

Date: 2024-11-06
OIC file number: 5820-03812
Access request number: A-2018-00464

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 creation of the position of Intelligence Coordinator and/or Security and Intelligence Coordinator in PCO between 1 September 1984 and 28 February 1985, including but not limited to the document 'Memorandum for the Intelligence Coordinator' signed by Cabinet Secretary Osbaldeston and dated 27 November 1984.

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, 187 additional pages of responsive records were identified.

The Information Commissioner ordered that PCO provide a subsequent response to the access request by December 10, 2024.

PCO gave notice to the Commissioner that it would be implementing the order.

The complaint is well founded.

Complaint

[1]      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 the following:

[2]      Records related to the creation of the position of Intelligence Coordinator and/or Security and Intelligence Coordinator in PCO between 1 September 1984 and 28 February 1985, including but not limited to the document 'Memorandum for the Intelligence Coordinator' signed by Cabinet Secretary Osbaldeston and dated 27 November 1984. I do not require copies of the 'Fadden Report' or the 'Kroeger Report' produced around this time and dealing with related matters.

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

Investigation

[4]      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.

[5]      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.

[6]      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?

[7]      The potential records at issue comprise records related to the creation of the position of Intelligence Coordinator and/or Security and Intelligence Coordinator at PCO between September 1, 1984, and February 28, 1985.

[8]      As part of their complaint and representations to the Office of the information Commissioner (OIC), the complainant alleges the following:

• The request for records dealing with the decision to create the position of Security and Intelligence Coordinator covered the period from September 1, 1984 to February 28, 1985. However, PCO only provided records from January 1985.
• Additional records should exist from this period that PCO has not provided. These records are likely to include consultations with other departments and members of the Interdepartmental Committee for Security and Intelligence (ICSI), and PCO internal consultations and recommendations.
• PCO has not provided a copy of the ‘Memorandum for the Intelligence Coordinator’ signed by Cabinet Secretary Osbaldeston and dated November 27, 1984, which the complainant specifically asked for in the request.  

[9]      The OIC’s Registrar requested the relevant processing documents from PCO in order to obtain a preliminary understanding of how the request was processed, including the tasking and search of the requested records. However, PCO did not provide the OIC with the requested documents.

[10]    In light of the above and in the absence of documentation from PCO, the OIC was not convinced that that a reasonable search was conducted for all the requested records.

[11]    The OIC sought representations from PCO concerning its search for the requested records. In response, PCO advised the OIC that the Security and Intelligence Secretariat (S&I), the Intelligence Assessment Secretariat (IAS), and PCO’s Information Management Operations (IM Ops) were tasked to conduct secondary searches 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. IAS provided 35 pages of records from 1984 and 1985, and IM Ops provided approximately 110 pages of additional records.

[12]    PCO informed the OIC that it will be expediting the review the additional records provided by both IM Ops and IAS. In determining whether this additional information can be released under the Access to Information Act, PCO must complete consultations with the Communications Security Establishment, the Department of National Defence, the Canadian Security Intelligence Service and Global Affairs Canada.

[13]    Finally, PCO has committed to provide the subsequent response to the access request by December 10, 2024.

[14]    I am now satisfied that PCO has conducted a reasonable search for responsive records.

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 December 10, 2024.
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 19, 2024, I issued my initial report to the Clerk of the Privy Council setting out my orders.

On November 1, 2024, the Assistant Secretary to the Cabinet, Ministerial Services and Corporate Affairs gave me notice that PCO would be implementing the orders. Furthermore, PCO advised that there are 187 pages of records responsive to the request and consultations are required with Communications Security Establishment Canada, the Canadian Security Intelligence Service, National Defence, the Department of Justice Canada and Global Affairs Canada. All consultations are expected to be completed by November 22, 2024. Once received, a review from PCO’s Security and Intelligence and Intelligence Assessment secretariats will be required. PCO’s Access to Information and Privacy office is expediting the review of the records in order to provide a response by the proposed order 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, the order(s) takes effect on the 36th business day after the date of this report.