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Public Services and Procurement Canada (Re), 2022 OIC 45

Date: 2022-11-08
OIC file number: 5820-01920
Institution file number: A-2020-00130

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, for the Health Protection Building Whole Building (Tunney’s Pasture) Designated Substances Report. The complaint falls within paragraph 30(1)(a) of the Act.

In response to the access request, PSPC provided some of the contract documents listed in the access request. However, it did not provide the records which it stated are not under its control. The investigation found that although the records at issue were not in PSPC’s physical possession, they were under its control for the purposes of the Act.

The Information Commissioner ordered 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 orders.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Public Services and Procurement Canada (PSPC) failed to conduct a reasonable search for records in response to an access made under the Access to Information Act for the Health Protection Building (Tunney’s Pasture) Whole Building Designated Substances Report.

[2]      Specifically, the request sought a list of contract documents related to the subcontract awarded to DST Consulting Engineers Inc., by Brookfield Global Integrated Solutions (BGIS) on April 7, 2017, related to the drafting of the above-mentioned report. The complaint falls within paragraph 30(1)(a) of the Act.

Investigation

Reasonable Search

[3]      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.

[4]      A reasonable search involves a level of effort that would be expected of any fair, sensible person tasked with a search for responsive records where they are likely to be stored.

[5]      This search does not have to be perfect. An institution therefore is 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 under their control.

Did the institution conduct a reasonable search?

[6]      In response to the access request, PSPC provided some of the contract documents listed in the access request, including PSPC records related to the contract, the Investment Analysis Report (IAR), the Statement of Requirement, and the final report.

[7]      However, PSPC did not provide the following documents as responsive to the access request as PSPC is of the view that they are not under its control:

Bid documents

  • Addendum 1.pdf, uploaded Date Mar 1, 2017
  • Addendum 2.pdf, uploaded Date Mar 7, 2017

RFP documents

  • Attachment No. 7-Designated Substance Report 1.pdf, Uploaded 2017-02-21
  • Attachment No. 8-Designated Substance Report 2.pdf, Uploaded 2017-02-21
  • Section B Scope of Work

DST Consulting Engineers Inc. Completed Stipulated Bid Document

  • Appendix F Supplementary Conditions

[8]      The OIC’s investigation examined two questions with regard to these documents (hereinafter referred to as the “records at issue”):

  1. Whether PSPC has control of the records at issue, and
  2. Whether PSPC’s search for records responsive to the request under its control was reasonable.

Control of records

[9]      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. This notably includes the Supreme Court of Canada’s decision in the 2011 PM’s Agenda case (Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25.  See also: Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559).

[10]    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?

[11]    The legal test for control of a record that is outside the physical possession of the institution has two steps. The first step examines whether the contents of the record relate to an institutional matter.

[12]    The second step examines whether, having regard to all relevant factors, the institution could reasonably 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. The second step is an objective inquiry, focused on whether a senior official of a government institution reasonably should be able obtain a copy of the record upon request (Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, paras. 54-56).

[13]    The scope of what constitute relevant factors, and the relative weight accorded to different factors, will vary depending on the circumstances.

[14]    The records at issue are subcontract documents relating to a subcontract awarded by BGIS to DST Consulting Engineers Inc. to support BGIS in responding to its contractual obligations towards PSPC. During the investigation, PSPC provided the OIC with a copy of the contract between PSPC and BGIS, which governs the records at issue and includes General Conditions and the Statement of Work. DST Consulting Engineers Inc. performed some of the work envisioned by this contract as a subcontractor retained by BGIS.

[15]    Having reviewed the representations of PSPC and of the complainant, along with the relevant evidence, I find that PSPC does have control of the records at issue. PSPC’s position attempts to minimize the link between PSPC and the records at issue despite significant indications to the contrary.

[16]    It is evident that the records relate to a departmental matter. The records at issue exist because of PSPC’s contract with BGIS. The responsibility for the management of the government building in question ultimately lies with PSPC, as the designated custodian of general-purpose office accommodation in Canada.

[17]    I also find that a senior PSPC official should reasonably expect to obtain the records at issue upon request to BGIS.

[18]    I have considered various factors including the substantive content of the records at issue, the circumstances in which they were created, the legal relationship between PSPC and BGIS, PSPC’s authority to regulate or control the use or disposition of the records at issue and PSPC’s authority over the communication of the records. These factors are discussed in detail below. Taken together, they demonstrate PSPC’s control over the records at issue despite PSPC’s representations to the contrary.

[19]    The substantive content of the records at issue (subcontract documents) is ultimately defined by the contract between PSPC and BGIS. This is also the case for circumstances in which the records at issue were created. PSPC’s contract with BGIS expressly provide for the use of subcontractors.

[20]    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 subcontract documents – through its legally enforceable right to obtain these documents, including the ones at issue in the present investigation. In the circumstances, this is the most important factor determining control. 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.

[21]    In addition, BGIS is required to provide the Technical Authority with full information and assistance in order that the Technical Authority may verify, assess or determine that the Work is executed in accordance with the Contract. The investigation confirmed that the Technical Authorities for this contract between PSPC and BGIS are PSPC employees.

[22]    It is of note that PSPC concedes that it can obtain records of the type at issue, from BGIS, if required for a Court case, for example. Various other provisions in the contract between PSPC and BGIS, which the OIC examined in detail, further support PSPC’s legally enforceable right of access to the records and indicate PSPC’s authority to regulate or control the use or disposition of the records at issue, and/or its authority over the communication of the records at issue.

[23]    The OIC provided PSPC with a detailed preliminary view that it has control of the records at issue, along with a preliminary analysis of various relevant factors. Unfortunately, PSPC failed to engage with these factors and displace my office’s preliminary view. Rather, in response to the OIC’s request for representations pursuant to paragraph 35(2)(b), PSPC re-iterated that it does not currently possess not has it ever processed, documents which are under the control of BGIS.

[24]    In light of all of the above, I conclude that PSPC has control of the records at issue despite not having them in its possession. The records at issue relate to PSPC departmental matters. In light of all relevant factors including the key factors considered above, and most notably PSPC’s legally enforceable right to obtain the records at issue, a senior PSPC official should reasonably expect to obtain them upon request. The analysis above demonstrates that, to the extent that PSPC wants to obtain the records at issue, it has the legal ability to do so. PSPC’s representations and the evidence before me do not demonstrate otherwise.

[25]    Therefore, I conclude that PSPC has not yet conducted a reasonable search for these records.

[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.

Order

Under subsection 36.1(1) of the Act, I order the Minister of Public Services and Procurement Canada to:

  1. Retrieve all of the records at issue from BGIS (or DST Engineers Inc.), which I have determined to be under the control of PSPC – specifically:

Bid documents

  • Addendum 1.pdf, uploaded Date Mar 1, 2017
  • Addendum 2.pdf, uploaded Date Mar 7, 2017

RFP documents

  • Attachment No. 7-Designated Substance Report 1.pdf, Uploaded 2017-02-21
  • Attachment No. 8-Designated Substance Report 2.pdf, Uploaded 2017-02-21
  • Section B Scope of Work

DST Consulting Engineers Inc. Completed Stipulated Bid Document

  • Appendix F Supplementary Conditions
  1. Respond to the access request by processing the records at issue in accordance with the Act by giving access to them in their entirety, unless they are withheld in whole or in part on the basis of specified provisions in the Act.

The Minister must abide by the terms of subsection 37(4) when disclosing any records in response to my order.

On October 3, 2022, I issued my initial report to the Minister of Public Services and Procurement Canada setting out my order.

On October 20, 2022, the Assistant Deputy Minister, Policy, Planning and Communications gave me notice that PSPC is of the view that the contract between PSPC and BGIS does not give rise to a right of production of documents associated with subcontracts.

As a result, the Minister is not implementing my order. As indicated to the Minister in my initial report, if she does not plan to implement my order she must apply to the Federal Court for a review within the time limit set out in subsection 41(2) of the Act.

When a complaint falls within the scope of 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. 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.

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