Royal Canadian Mounted Police (Re), 2022 OIC 28

Date: 2022-06-14
OIC file number: 5819-03192
Institution file number: A-2018-05652

Summary

The complainant alleged that the Royal Canadian Mounted Police (RCMP) did not conduct a reasonable search under the Access to Information Act when responding to an access request seeking records relating to the RCMP’s “E Norther” file.

The request identified the RCMP’s Legal Services Unit as potentially having records but the RCMP initially refused to task this area stating that responsive records would not be under its control. The investigation found that the records, if they existed, would likely be under the RCMP’s control for the purposes of the Act.

The Information Commissioner ordered the RCMP to confirm if additional records existed and, if so, to process these records in accordance with the Act.The RCMP gave notice to the Information Commissioner that records had been identified and that an additional response was sent to the complainant.

The complaint is well founded.

Complaint

[1]      The complainant alleged that the Royal Canadian Mounted Police (RCMP) did not conduct a reasonable search under the Access to Information Act when responding to an access request seeking records relating to correspondence between certain members of the institution, relating to the RCMP’s National Administrative Records Management System (NARMS) and relating to RMCP file “E Norther”.

[2]      The Office of the Information Commissioner (OIC) is separately investigating the complainant’s allegation that the RCMP improperly withheld information under subsection 19(1) (Personal Information) and section 23 (Legal advice and litigation privilege) [OIC 5819-03190] in response to the same request.

Investigation

Reasonable Search

[3]      The RCMP 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 searching for responsive records where they are likely to be stored.

[5]      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?

[6]      Over the course of the investigation, the RCMP provided representations regarding the search it conducted in response to the request, including, representations in support of its refusal to conduct a search for records within the office of a specific lawyer from the RCMP’s Departmental Legal Services Unit (DLSU) identified in the request.

[7]      During the course of the investigation, the OIC questioned whether the RCMP had undertaken a search for information pertaining to NARMS and “E Norther”, in accordance with the text of the request, and asked that the RCMP provide details of this search. As a result, the RCMP tasked three additional Offices of Primary Interest (OPI) in British Columbia and the National Headquarters to identify any outstanding records. The RCMP indicated that it had received responses from the British Columbia OPIs and are currently reviewing the records. The relevant OPI in the National Headquarters has yet to respond.

[8]      With regard to the RCMP’s refusal to conduct a search for records within the office of a specific lawyer from its Departmental Legal Services Unit (DLSU), the RCMP argued that any potentially responsive records would be under the control of the Department of Justice (Justice) and not the RCMP.

[9]      The OIC took the position that in the present instance, given the subject matter of the request, it was likely that the content of any potentially responsive records within the office of the lawyer of the RCMP’s DLSU would relate to RCMP matters and might well satisfy the control test enunciated by the Supreme Court of Canada in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25. Furthermore, under the Act, the decision of whether or not records are under the control of the RCMP could not properly be made by the OPI tasked with the request, as they have not been delegated to do so. Therefore, a reasonable search necessitated that the RCMP retrieve and review all potentially responsive records, following which the RCMP would be able to determine whether any of these records fall under its control.

[10]    Ultimately, the RCMP agreed to task the DLSU, which resulted in additional information being located. In this instance, the additional information was determined to fall under the RCMP’s control. A supplementary release was provided to the complainant on December 9, 2021.

[11]    For the reasons given above, I conclude that the RCMP did not conduct a reasonable search in response to the access request.

Result

[12]    The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the Commissioner of the RCMP to:

1. Confirm with the outstanding OPI (National Headquarters) whether or not they have any relevant records;
2. Process any responsive records retrieved by the tasking and provide a new response to the complainant forthwith;

On April 7, 2022, I provided my initial report to the Commissioner of the RCMP, setting out my order.

On May 6, 2022, the Commissioner of the RCMP gave me notice that the outstanding OPI had responded and an additional response was sent to the complainant on April 8, 2022.

Section 41 of the Act provides a right to any person who receives this report to apply to the Federal Court for a review. Complainants and institutions must apply for this review within 35 business days after the date of this report. The person who applies for a review must serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by this deadline, this order takes effect on the 36th business day after the date of this report.