Public Services and Procurement Canada (Re), 2022 OIC 16

Date: 2022-03-04
OIC file number: 5820-03982
Institution file number: A-2019-00619

Summary

The complainant alleged that Public Services and Procurement Canada (PSPC) did not process their access request in accordance with the Access to Information Act. Specifically, the complainant alleged that PSPC obstructed their right of access under the Act by concealing the requested records. The request focused on a list of contracts awarded in connection with the COVID-19 pandemic.

This investigation centred on the processing of the request under the Act, since it is not the Office of the Information Commissioner’s role to investigate allegations under section 67.1. Although there were serious failures in the processing of the access request, the Commissioner is not of the opinion that there is any evidence of an offence.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Public Services and Procurement Canada (PSPC) did not process their access request in accordance with the Access to Information Act. Specifically, the complainant alleged that PSPC obstructed their right of access under the Act by concealing the requested records. The request focused on a list of contracts awarded in connection with the COVID‑19 pandemic.  

[2]      The Office of the Information Commissioner conducted a separate investigation into the complainant’s allegation that PSPC failed to respond to the request within the time limit set out in the Act (5820-03591). The request was dated March 25, 2020, and the response was sent to the complainant on March 29, 2021. The OIC concluded that the delay complaint was well founded, since PSPC had not extended the time limit for responding to the request and failed to respond within the specified time limit.

[3]      Although the complainant ultimately received a response to their request, the complainant was of the opinion that the delay occurred because PSPC had tried to conceal records. Therefore, this investigation is limited to the allegation that PSPC failed to respond within the specified time limit because, among other things, it was trying to conceal records.

Investigation

Subsection 4(2.1): Responsibility of government institutions

[4]      Subsection 4(2.1)  requires that the head of a government institution, without regard to the identity of a person making a request for access to a record under the control of the institution, make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely and, subject to the regulations, provide timely access to the record in the format requested.

Did PSPC meet its obligations under the Act?

[5]      The investigation found that the delays were partially due to the difficulty that the access to information team had in obtaining the records from the office of primary interest (OPI).  

[6]      The investigation found that the OPI had grouped similar access requests together and had then given the information associated with those grouped requests to the access to information team for processing. Firstly, I must point out that this approach fails to comply with the Act; access requests must be processed separately and in the order they are received.  

[7]      The investigation also found that the OPI was not saving the records in a corporate repository, resulting in version control issues. The OIC learned that the OPI was manually compiling the data related to the contracts awarded in connection with the COVID‑19 pandemic.

[8]      The OPI took more than five months to provide the records for processing. In addition, the access to information team indicated that, because of restructuring in the procurement OPI, it had to ask a second OPI to identify responsive records.  

[9]      PSPC initially put the request on hold between March 25 and September 23, 2020. It finally responded to the request on March 29, 2021, more than six months after the hold ended. As indicated above, PSPC did not take a time extension justifying these two delays, which resulted in a delay of approximately one year.

[10]    Therefore, PSPC failed to meet its obligation to assist the requester, specifically its obligation to provide timely access to the records. This obligation extends not only to the access to information team, but also to the OPIs responsible for locating the records. Therefore, the complaint is well founded.

[11]    The complainant alleged that the delays were deliberate and were designed to conceal the records requested, which would contravene section 67.1 of the Act.

Subsection 67.1(1): Obstructing right of access

[12]    Subsection 67.1(1) stipulates that no person shall, with the intent to deny a right of access:

1. destroy, mutilate or alter a record;
2. falsify a record or make a false record;
3. conceal a record; or
4. direct, propose, counsel or cause any person in any manner to do anything mentioned in any of paragraph (a) to (c).

[13]    My mandate is to conduct administrative investigations into government institutions’ compliance with the Act and draw conclusions based on facts.  

[14]    I am unable to conduct criminal investigations or determine civil or criminal liability. Although I can draw conclusions based on facts, I do not have the authority to investigate whether actions were taken with the intent to deny a right of access under the Act.  

[15]    During the investigation, I may disclose to the Attorney General of Canada information relating to the commission of an offence against a law of Canada or a province by a director, an officer or an employee of a government institution if, in my opinion, there is evidence of such an offence, as stipulated in subsection 63(2).

[16]    Although it is my opinion that there were serious failures in the processing of the access request that contributed to the delay, I did not note any evidence of the commission of an offence by the OPI or the access to information team at PSPC. After several months of waiting, the complainant received the requested information.  

[17]    I am very disappointed that PSPC took more than a year to respond to this access request. This case was a unique opportunity for the department to demonstrate how much it values transparency, both in general and specifically during the pandemic, by disclosing important information related to public health. This opportunity was missed.  

Result

[18]    The complaint is well founded.

Section 41 of the 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.