Shared Services Canada (Re), 2022 OIC 24
Date: 2022-05-12
OIC file number: 5820-02800
Institution file number: A-2020-00107
Summary
The complainant alleged that Shared Services Canada (SCC) has wrongfully refused to process an access request made under the Access to Information Act for records related to informal official language complaints.
SSC refused to process the access request as it did not believe it met the requirements of section 6 of the Act.
SSC asserted that responding to the access request as worded would require tasking every employee of the department to search for records, more than 8,300 individuals. In addition, the administrative burden placed on SSC to respond to the request would unreasonably conflict with core activities.
The Information Commissioner did not agree, and ordered the Minister of Public Services and Procurement Canada to accept the access request as meeting the requirements of section 6 and to proceed accordingly.
SSC did not respond to the Commissioner’s initial report. It is therefore unknown whether SSC will implement the Commissioner’s order.
The complaint is well founded.
Complaint
[1] The complainant alleged that Shared Services Canada (SSC) has wrongfully refused to process an access request made under the Access to Information Act for records related to informal official language complaints.
[2] SSC attempted on a number of occasions to secure agreement by the complainant to reduce the scope of the access request. During this process, the complainant agreed to restrict the access request to a one-year timeframe and amended it as follows:
I am requesting any and all emails with a subject line that includes “Official” “official” “OL” “ol” “Languages” “languages” “Language” “Language” AND CONTAINS ANY OF THE FOLLOWING: “Complaint” “complaint” “Complaints” complaints” for the calendar year of 2020. Response do not need to include any signature lines or attachments.
[3] Even with the new wording, SSC refused to process the request as it felt that the request did not meet the requirements of section 6 of the Act.
Investigation
[4] When an institution refuses to process a request under the Act, it bears the burden of showing that it is justified.
[5] I have reviewed and carefully considered all submissions made by SSC. If they are not addressed in this final report, it is because I did not find them relevant to determine the matters at issue.
Section 6: Request for access to record
[6] Section 6 of the Act requires that a request for access to a record under the Act be made in writing to the government institution that has control of the record and shall provide, “sufficient detail to enable an experienced employee of the institution to identify the record with a reasonable effort.”
Does the request meet the requirements of section 6?
[7] SSC alleges that processing the request as worded would still require tasking all of its employees to search for records responsive to the request. SSC has more than eight thousand three hundred (8,300) employees.
[8] In its representations, SSC stated that a request requiring that such a large number of employees be tasked does not provide sufficient detail to meet the requirements of section 6. In addition, according to SSC, there is an implicit statutory requirement for a request to target specific groups of individuals with the retrieval of records in order to be considered valid.
[9] SSC also argues that the requirement of “reasonable effort” under section 6 should consider the administrative burden that a specific request will have on the operations of an institution. SSC’s position is that the burden imposed by the request does not constitute a reasonable effort because of the work involved in tasking the individuals and retrieving the records. In addition, the administrative effort required to process the request within the legislated timeframe would unreasonably conflict with the core activities of each branch.
[10] I cannot agree with SSC’s position. The term “reasonable effort” is not a stand-alone requirement; it is to be read in its entire context, in which it is the effort to “identify” the records that needs to be reasonable. The Supreme Court of Canada endorsed this approach in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para 21, and stated that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”
[11] It is also my view that the requirements of section 6 do not put a limit on the number of individuals who must be tasked in order to search for and provide responsive records, nor do they require that specific groups be targeted. Rather, paragraph 9(1)(a) of the Act provides an extension of time due to the volume of records when the request is for a large number of records or requires searching through a large number of records and meeting the 30-day deadline would unreasonably interfere with the institution’s operations.
[12] To this, SSC’s position is that an extension of time does not alleviate the burden on an institution, but will prolong it and create a liability for years to come. While I acknowledge the effort that is required from an institution with this type of request, the Act does not allow an institution to refuse to process a request on the sole basis that it will create a burden on its operations.
[13] In addition to the administrative burden, SSC asserts that the request, as worded, does not provide sufficient detail to enable an experienced employee to identify records with a reasonable effort. This is because SSC opines that the keywords will generate a large number of records that are non-responsive.
[14] A request will generally be considered to provide “sufficient detail to enable an experienced employee of the institution to identify the record with a reasonable effort” if there is a timeframe and a subject. The keywords used in the request are specific enough to allow an employee to identify what the complainant is seeking. The narrowed scope of the access request asks for emails with the subject line containing the listed keywords, not the body of the email nor any potential attachments. In addition, the complainant excluded from the scope of the request signature lines containing the keywords, and restricted the request to a one-year timeframe.
[15] I further note that during the time that SSC officials were attempting to re-scope the request, they suggested to the complainant that a group of individuals (for example, Human Resources) within the department could be tasked as the Office of Primary Interest (OPI). The rationale for this suggestion was that tasking and receiving responsive records from a smaller group of individuals would reduce the administrative burden associated with tasking everyone in the department, and could provide the complainant with records related to official language complaints. For their part, the complainant repeatedly confirmed that they were not interested in a small group of individuals’ email messages containing subject lines with the specified keywords, rather, they are seeking all email messages created during a specific timeframe.
[16] If a smaller group of individuals (i.e. Human Resources) could identify records responsive to the request as worded – using keywords – then it would stand to reason that a larger group of individuals could also identify records relevant to the request.
[17] It is therefore my view that the request is sufficiently detailed to enable an experienced employee to identify responsive records with a reasonable effort.
[18] I must also disagree with SSC’s submissions that there is no valid reason to task every employee, on the basis that the search would retrieve significant amounts of personal information that would be redacted under the Act. This is not a valid justification to refuse to process a request. Subsection 19(1) of the Act exists to protect personal information; therefore there is no reason for SSC to refuse to process the request on the basis that information would be exempted. Whether some or all of the requested information consists of personal information that would be exempt under the Act is not relevant to an institution’s ability to identify responsive records.
[19] In light of the above, I conclude that the request meets the requirements of section 6.
Observation
[20] I note that in defending its decision not to process the request, SSC made representations suggesting the request is vexatious and an abuse of the right of access. Section 6.1 of the Act provides for a separate process under which institutions can address requests that are, in their view, vexatious, made in bad faith, or otherwise an abuse of the right to make a request for access to records. This process, which is subject to my approval prior to refusing to act on the request, was not followed in the current instance. As SSC did not avail itself of this process, I will not address these submissions.
Result
[21] The complaint is well founded.
Order
Under subsection 36.1(1) of the Access to Information Act, I order the Minister of Public Services and Procurement Canada to accept the access request, as meeting the requirements of section 6, and to proceed accordingly.
On March 29, 2022, I issued my initial report to the Minister of Public Services and Procurement Canada setting out my intended order. The deadline for a response was April 22, 2022 which I extended until May 6, 2022. At the signing of this final report, no response has been received.
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.