Public Services and Procurement Canada (Re), 2022 OIC 23

Date: 2022-05-06
OIC file number: 3219-00238
Institution file number: A-2018-01089 /CNE

Summary

The complainant alleged that Public Services and Procurement Canada (PSPC) has failed to provide records in response to an access request made under the Access to Information Act, regarding Contract Number PWG560229 awarded on April 10, 2017 relating to Health Protection Building Demolition – Prime Consulting Services.

In response to the access request, PSPC indicated that it could not identify any relevant records, under its control. The investigation found that while the subcontracts and related records were not in PSPC’s physical possession, they were under its control for the purposes of the Act. Therefore, the records should have been retrieved and processed in accordance with the Act.

The Information Commissioner recommended that the records be retrieved and that a response be provided to the complainant.

PSPC gave notice to the Commissioner that it would not implement the recommendations.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Public Services and Procurement Canada (PSPC) has failed to provide records in response to an access request made under the Access to Information Act, regarding Contract Number PWG560229 awarded on April 10, 2017 relating to Health Protection Building Demolition – Prime Consulting Services.

[2]      In response to the access request, PSPC indicated that they could not identify any relevant records. PSPC indicated that the solicitation in question was issued by Brookfield Global Integrated Solutions (BGIS) for their purposes.

Investigation

[3]      The investigation confirmed that the records being sought are a subcontract as well as all records related to the subcontract, awarded by BGIS to DST Consulting Engineers Inc. to support BGIS in responding to its contractual obligations towards PSPC.

[4]      At issue in the investigation was whether PSPC has control of the subcontract and the records related to it, and if so, whether it conducted a reasonable search to identify them.

[5]      The burden of proof rests on PSPC to demonstrate that it does not have control of the subcontract and of the records related to it.

Control of records

[6]      The Act provides requesters with a right of access to records that are “under the control” of government institutions. While the Act does not define “under the control,” the courts have affirmed that this phrase should be interpreted broadly and liberally in order to make the right of access meaningful. (See Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, para. 48)

[7]      Whether records are under the control of an institution must be assessed on a case-by-case basis. Physical possession of records is not determinative of control. A range of factors must be considered when determining whether an institution has control over the records. The scope of what constitutes relevant factors, and the relative weight accorded to each, varies depending on the circumstances.

Are the records under the control of the institution?

[8]      The legal test for control of records outside the physical possession of the institution has two steps. First, the contents of the record must relate to an institutional matter. Second, whether the institution could expect to obtain a copy of the record upon request. All relevant factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record-holder. (Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, paras. 54-56).

[9]      The subcontract in question exists because of PSPC’s contract with BGIS, relating to PSPC’s functions in relation to buildings the responsibility for which ultimately lies with PSPC – as the designated custodian of general-purpose office accommodation in Canada. During the investigation, PSPC accepted that the records at issue relate to an institutional matter.

[10]    However, PSPC took the position that subcontracts are not something they require, and that they play no role in determining the mandate contained in the subcontracts. PSPC further noted that BGIS is not an agent of Canada, but rather an independent contractor that was not directed by Canada in how it was expected to fulfill its contractual obligations to Canada.

[11]    PSPC differentiated between deliverables under its contract with BGIS, and non-deliverables such as subcontracts. PSPC stated the contract with BGIS does not indicate that PSPC has control over subcontracts

[12]    PSPC provided the OIC with a copy of the contract between PSPC and BGIS, which governs the subcontract at issue and includes General Conditions and the Statement of Work.

[13]    Having reviewed the representations of PSPC and of the complainant, along with the relevant evidence, I am not convinced of PSPC’s position that it does not have control of the requested records. I have considered various factors including the substantive content of the subcontract, the circumstances in which it was created, the legal relationship between PSPC and BGIS, whether PSPC relied on the record when preparing government records, and PSPC’s authority to regulate or control the use or disposition of the subcontract. These factors are discussed in detail below. Taken together, they indicate PSPC’s control over the subcontract and related records despite PSPC’s representations to the contrary.

[14]    The substantive content of the subcontract is ultimately defined by the contract between PSPC and BGIS; as are the circumstances in which the subcontract was created. PSPC’s contract with BGIS expressly provide for the use of subcontractors. 

[15]    The legal relationship between the government institution, PSPC, and the record-holder, BGIS, is a contractual relationship for the management of PSPC buildings, which indicates that PSPC has control of BGIS subcontracts – through its legally enforceable right to obtain such subcontracts, including the one at issue in the present investigation.

[16]    The contract between PSPC and BGIS contains mechanisms for Canada (PSPC) to obtain records that are not limited to deliverables, but extend to subcontracting and inquiries concerning the awarding of subcontracts.

[17]    In addition, BGIS is required to provide the Technical Authority with a detailed listing of the subcontracts in place in specific situations. The investigation confirmed that the Technical Authorities for this contract between PSPC and BGIS are PSPC employees.

[18]    Various other provisions in the contract between PSPC and BGIS, which the OIC examined in detail, indicate PSPC’s control over BGIS subcontracts. Canada clearly has a role in ensuring compliance with the contract as it relates to subcontracts. Accordingly, I am of the view that PSPC’s position to the contrary is incorrect.

[19]    The legal relationship between PSPC and BGIS is, in the circumstances, the most important factor in the analysis of whether a senior official at PSPC should reasonably expect to obtain a copy of the subcontract in question upon request. The analysis above demonstrates that, to the extent that PSPC wants to obtain the subcontracts, it has the legal ability to do so. PSPC’s representations and the evidence before me do not demonstrate otherwise.

[20]    Lastly, I find that another relevant factor is PSPC’s authority to regulate or control the use or disposition of the subcontract. The confidentiality clause in the contract between PSPC and BGIS appears to indicate some authority on the part of PSPC to control the use or disposition of the subcontract, if it contains confidential information.

[21]    In light of all of the above, I conclude that PSPC has control of the subcontract in question, and therefore also records related to the subcontract which are the records at issue. As PSPC does have control of this subcontract and related records, I now turn to the question of whether it conducted a reasonable search.

Reasonable Search

[22]    PSPC was required to conduct a reasonable search for records that fall within the scope of the access request – that is, one or more experience employees, knowledgeable in the subject matter of the request, must have made reasonable efforts to identify and locate all records related to the request.

[23]    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.

[24]    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?

[25]    In light of my conclusion above, that PSPC has control of the subcontract and related records, I conclude that PSPC did not conduct a reasonable search for records responsive to the request. The subcontract and the related documents are in BGIS’ physical possession but under the control of PSPC for the purposes of the Act. PSPC made no effort to obtain the subcontract and related document.

[26]    A determination that the records are under the control of an institution does not necessarily mean that they must be disclosed, but rather that the records must be retrieved and processed in accordance with the Act.

Result

[27]    The complaint is well founded.

Recommendations

I recommend that the Minister of Public Services and Procurement Canada:

1. Retrieve the requested records from BGIS, which I have determined to be under the control of PSPC;
2. Respond to the access request by processing the requested records in accordance with the Act by giving access to the entire subcontract as well as its related records, unless the information is withheld in whole or in part on the basis of specified provisions in the Act.

On February 28, 2022, I issued my initial report to the Minister of Public Services and Procurement Canada setting out my intended recommendations.

On April 28, 2022, the Minister of Public Services and Procurement Canada gave me notice that she would not be implementing my recommendations. This decision appears to be based on the same rationale that was provided during the investigation, which I continue to find is contrary to what is intended by the Act.

The Minister also stated that while PSPC takes its obligations under the Act very seriously, “applying the approach outlined in the initial report to this particular contract, and potentially to the thousands of other contracts that federal organizations have awarded to companies, would substantially expand the applicability of the Act beyond its current legislated framework.”

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.