Health Canada (Re), 2021 OIC 2

Date: 2021-01-21
OIC file numbers: 3219-00763 and 3219-00764
Institution file numbers: A-2017-000925 and A-2017-000926

Summary

The complainant alleged that Health Canada did not conduct a reasonable search for records in response to two access requests for information related to the personal or designated producers and users of medical cannabis. Responsive records were drawn from a database of medical cannabis producers licensed under the Access to Cannabis for Medical Purposes Regulations (ACMPR). Health Canada acknowledged that there may be additional relevant records stored in a second database but that retrieving this potentially relevant information would be unreasonable. The Office of the Information Commissioner agreed, given the amount of manual labour involved in retrieving additional potentially relevant records.

The complaints are not well founded.

Complaints

[1] The complainant alleged that Health Canada did not conduct a reasonable search for records in response to two access requests, for information related to the personal or designated producers and users of medical cannabis.

Investigation

[2] In response to the access requests, Health Canada produced two tables of information drawn exclusively from a database of medical cannabis producers licensed under the Access to Cannabis for Medical Purposes Regulations (the ACMPR). This database does not include information about producers permitted to maintain their licenses under the former regulatory regime (the Marihuana Medical Access Regulations or MMAR), who have not subsequently obtained changes to their licenses or renewed their licenses under the ACMPR.

[3] The investigation focused on Health Canada’s obligation to search databases, other than the database dedicated to records related to the ACMPR, for records relevant to the access requests.

Did Health Canada conduct a reasonable search for responsive records?

[4] Pursuant to subsection 4(2.1) of the Access to Information Act, the head of a government institution is required to “…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.”

[5] An institution’s obligation to conduct a reasonable search for responsive records is one in which an employee, experienced in the subject matter, expends a reasonable effort to locate information responsive to the request. The threshold that must be met is one of “reasonableness”, as opposed to perfection.

[6] In the present instance, Health Canada searched for and retrieved postal code information pertaining to current medical cannabis producers licensed under the ACMPR, yet maintained that it would not have been reasonable to expend the effort to locate and retrieve additional information potentially relevant to the requests from its Secure Access Medical Marijuana (SAMM II) database (which housed information pertaining to licensees under the former regulatory regime -- the MMAR). To this, Health Canada added that if such data were capable of being identified and retrieved, officials would have then needed to manually compile this information with that from its database of medical cannabis producers licensed under the ACMPR in order to produce records responsive to the requests.

[7] In support of this position, Health Canada explained that the operation of the SAMM II database and its contents was suspended following the coming into force of the ACMPR on March 21, 2014; thereafter, no information within the SAMM II database was capable of being edited or updated. The SAMM II database consists of approximately 30,000 entries pertaining to separate applications / licensees under the former regulations. Only some of these entries pertain to current producers who have not since been licenced under the ACMPR. The SAMM II database is also not equipped with any advanced search functions and is also not linked to Health Canada’s database of medical cannabis producers licensed under the ACMPR.

[8] Therefore, while the SAMM II database may contain data regarding producers whose licenses under the MMAR continued with no subsequent modifications under the ACMPR, in order to identify and retrieve that information, Health Canada would have been required to:

individually review the data of all 30,000 (approximately) recorded entries in order to identify information pertaining to producers who might continue to operate under licenses issued under the MMAR;
cross-reference that data with information contained in Health Canada’s new database in an attempt to remove duplications; and
in cases of uncertainty, contact individual producers to ascertain whether they continue to operate pursuant to a license issued under the MMAR regime.

[9] Health Canada estimated that this process would take approximately 467 working days to complete and that the information compiled, in the end, might not be completely accurate i.e. if, for example, Health Canada was unable to contact any individual producers continuing to operate under the former regime.

[10] Based on the information and representations received, the OIC is satisfied that Health Canada’s search and retrieval of postal code information pertaining to current medical cannabis producers licensed under the ACMPR was reasonable. The OIC is also satisfied that it would not have been reasonable to expend the effort to locate and retrieve potentially relevant additional information from its SAMM II database.

[11] To this, the OIC further notes that had Health Canada been able to reasonably identify and retrieve additional relevant information from the SAMM II database, it would not have been required to produce a record compiling that information with information from its database pertaining to medical cannabis producers licensed under the ACMPR.

[12] Subsection 4(3) requires that a government institution produce a record to respond to the request, if:

the record can be produced from “a machine readable record” that is under the institution’s control through the use of hardware, software and technical expertise normally used by the institution; and
producing the record would not “unreasonably interfere with the operations” of the institution.

[13] In the present instance, Health Canada could not have compiled data from the SAMM II database and its new database using hardware, software and technical expertise normally used by the institution, in order to produce records responsive to the request.

[14] The OIC is satisfied that Health Canada conducted a reasonable search for records in response to the two above-mentioned access requests.

Results

[15] The complaints are not 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.