Public Services and Procurement Canada (Re), 2021 OIC 29
Date: 2021-10-27
OIC file number: 5820-03499
Institution file number: A-2020-00590
Summary
The complainant alleged that Public Services and Procurement Canada (PSPC) did not conduct a reasonable search for a recording of a specific meeting, which took place over Microsoft Teams, as well as all communications regarding that meeting, in response to an access request under the Access to Information Act.
The investigation revealed that although Microsoft Teams has the capacity to record meetings, this function was not used to record the meeting in question. In addition, PSPC officials indicated that the meeting was informal and did not involve activities and decisions of business value for which there was any obligation to create a record.
Based on the evidence and representations received, the OIC is satisfied that PSPC took reasonable steps to identify and locate responsive records. However, no responsive records were identified.
The complaint is not well founded.
Complaint
[1] The complainant alleged that Public Services and Procurement Canada (PSPC) did not conduct a reasonable search for a recording of a specific meeting, which took place over Microsoft Teams, as well as all communications regarding that meeting, in response to an access request under the Access to Information Act.
Investigation
Reasonable search
[2] PSPC 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?
[5] During the investigation it was learned that, prior to responding to the request, PSPC tasked the appropriate program area to search for a recording of the Microsoft Team meeting and communications regarding that meeting. When this search failed to identify any responsive record, PSPC further consulted its information technology (IT) branch, who confirmed that although Microsoft Teams has the capacity to record meetings, this function was not used to record the meeting in question. As a result, no recording of the meeting exists.
[6] The complainant maintained that because PSPC’s policy on information management states that audio/video conferences held on Microsoft Teams are subject to access to information and privacy policies, the Teams meeting ought to have been recorded and the requested recording should have been created. This policy, however, only provides that if records are created using Microsoft Teams, access and privacy policies apply. Neither the Access to Information Act, nor the access to information and privacy policies referenced by the complainant, impose an obligation to create records.
[7] Deputy Heads are required by the Policy on Service and Digital to ensure that decisions and decision-making processes are documented. Similarly, the Directive on Service and Digital requires all public service employees to document activities and decisions of business value.
[8] The Policy and Directive on Service and Digital, however, do not impose any obligation to create or retain transitory records i.e. records that are not needed to control, support or document the delivery of programs, carry out operations, make decisions or provide evidence to account for the activities of government. (See Library and Archives Canada’s Government Records Disposition: Frequently Asked Questions (FAQs)).
[9] During the course of the investigation, PSPC re-tasked attendees of the meeting to confirm whether the requested recording of the meeting or other communications regarding the meeting exist. No records were identified.
[10] When asked to explain the absence of responsive records, PSPC officials indicated that the meeting was informal and did not involve activities and decisions of business value for which there was any obligation to create a record.
[11] Throughout the investigation, the complainant maintained that responsive records should exist and that they have evidence of the existence of responsive records (i.e. in the form of meeting notes). When asked, however, to share this information with the OIC, the complainant declined to do so.
[12] Based on the evidence and representations received, the OIC is satisfied that PSPC took reasonable steps to identify and locate responsive records. However, no responsive records were identified.
Result
[13] The complaint is not well founded.
Section 41 of the Access to Information Act provides a right to the complainant who receives this report 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.