Public Health Agency of Canada (Re), 2023 OIC 36
Date: 2023-08-31
OIC file number: 5822-03285
Institution file number: PHAC-A-2022-000143
Summary
The complainant alleged that the Public Health Agency of Canada (PHAC) did not conduct a reasonable search in response to an access request under the Access to Information Act for records related to the fee schedule or dispersal of payments to every province and territory of Canada pursuant to Budget Implementation Act, 2021, No. 1, SC 2021, c 23, s 197. This complaint falls within paragraph 30(1)(a) of the Act.
During the investigation, the OIC sought information from PHAC related to the program areas tasked to search for records and the parameters of the search. In response, PHAC re-tasked the relevant program areas. As a result, approximately 104 additional pages identified as responsive to the request were retrieved.
The Information Commissioner ordered that PHAC complete the retrieval of the records identified by PHAC as responsive to the request and provide a new response to the complainant no later than 60 days after the effective date of the order. PHAC gave notice that it would implement the order.
The complaint is well founded.
Complaint
[1] The complainant alleged that the Public Health Agency of Canada (PHAC) did not conduct a reasonable search in response to an access request under the Access to Information Act for records related to the fee schedule or dispersal of payments to every province and territory of Canada pursuant to Budget Implementation Act, 2021, No. 1, SC 2021, c 23, s 197.
Investigation
Reasonable Search
[2] PHAC 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.
[3] 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.
[4] 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?
[5] During the course of the investigation, the Office of the Information Commission (OIC) reviewed documentation related to the PHAC’s search for responsive records.
[6] The OIC examined the responses of the Office of Primary Interest (OPI) to determine whether they had fulfilled their obligations under the Act to identify records relevant to the access request, under their control.
[7] The OIC required PHAC to provide additional information related to the program areas tasked and the parameters of the search. In response, PHAC re-tasked the relevant OPIs. As a result, approximately 104 additional pages identified to be responsive to the request were retrieved.
[8] In light of the above, I conclude that PHAC did not conduct a reasonable search for records in response to the access request. However, given the additional search, I am now satisfied that a reasonable search has been conducted. PHAC must now process the records and issue a supplementary disclosure to the complainant.
Result
[9] The complaint is well founded.
Order
Under subsection 36.1(1) of the Act, I order the President of PHAC to:
- Complete the retrieval and processing of the records identified by PHAC as responsive to the request;
- Provide a new response to the complainant once the processing is complete, but no later than 60 days after the effective date of the order;
- Give access to the 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).
On July 26, 2023, I issued my initial report to the President of PHAC setting out my intended order.
On August 18, 2023, PHAC gave me notice that it would be implementing my order.
When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They must apply for this review 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 these deadlines, this order takes effect on the 36th business day after the date of this report.