Interpretation: control of records

The Access to Information Act provides for a right of access to records under the control of government institutions. Control is a fundamental concept in the Act, since the right of access does not exist without it.

Institutions receiving access requests required to do reasonable searches for responsive records under their control. If there is a question as to whether certain records are, in fact, under the control of an institution, the institution’s delegated officials under the Act must review those records and make a determination on control. This determination does not rest with the institution’s Office of Primary Interest, or anyone else other than the institution’s delegated officials – who must be provided with the records.

The Act does not define the word “control”, so one must look to the case law for guidance. This notably includes the Supreme Court of Canada’s decision in the 2011 PM’s Agenda case.^{Footnote 1}

The case law indicates that control is to be interpreted broadly and liberally, to create a meaningful right of access to government information.

Whether records are under an institution’s control depends on the facts of each case. Furthermore, all relevant factors must be considered in determining whether an institution controls a record. The scope of what constitute relevant factors, and the relative weight accorded to different factors, will vary depending on the circumstances.

Physical possession of records is not determinative of control:

Records that are in the possession of an institution may not necessarily be under its control (eg. employees’ records of an entirely personal nature); and,
Records that are not in the possession of an institution may be under its control (eg. records that the institution has a right to obtain from an external source).

Below is a non-exhaustive list of relevant factors that the OIC may consider, in making determinations on control:

Who or what entity has physical possession of the record (location of the record);
Who created the record;
Do the contents of the records relate to an institutional matter (mandate, obligations, operations or functions of the institution);
Was the record created or obtained in fulfillment of an employment duty and/or intended to be used for an employment-related purpose;
Was the record created for the purpose of fulfilling a statutory requirement imposed on a government institution;
Was the record relied upon by the government institution when preparing government records;
Has the government a legally enforceable right of access to the record;
Has the government institution any authority to regulate or control the use or disposition of the record;
Does the communication of the content of the document require the authorization of an officer or employee of a government institution; and,
Is the record integrated with other records held by the institution, if so, how closely has the record been integrated?