2014-2015 The Investigation

The OIC conducted a preliminary assessment of the 15 files originally identified for investigation.

The OIC obtained evidence from PWGSC in response to three Orders for the Production of Records issued pursuant to section 36 of the Act.

The first and second production orders, issued on November 19, 2010, and December 2, 2010, respectively, required the production of departmental information relating to the 15 files under review by the OIC. PWGSC complied with these production orders.

The third production order, which was issued on December 23, 2010, required the production of, among other things, all records of communications to and from the three ministerial staff members involved in this investigation. Records of communication were defined as emails with attachments, back-up emails, and PIN-to-PIN messages. On January 7, 2011, PWGSC responded that it would not produce the records of communications to and from the ministerial staff members because it considered these communications to be under the control of the Minister and not the Department.

On January 12, 2011, the Commissioner wrote to Minister Ambrose and requested that the records identified in the third production order be provided to the OIC. On January 26, 2011, Minister Ambrose informed the Commissioner that her office would provide the requested records. The OIC received the records on May 9, 2011.

The OIC also requested that the then Chief of Staff provide an affidavit confirming that all records responsive to the third production order had been provided in response to the production order. On August 22, 2011, the Minister’s Chief of Staff provided the requested affidavit.

Based on the OIC’s review of the records, the following eight files were selected for more in-depth investigation.

1. A-2008-00588 (March 26, 2009): An access request for copies of four briefing notes to the Minister of PWGSC, one of which dealt with a public opinion research project. [translation]
2. A-2008-00519 (February 20, 2009): An access request for all records pertaining to changes in PWGSC’s daily activities in preparation for and during the visit of the American President to Canada. [translation]
3. A-2009-00169 (June 24, 2009): An access request for copies of specific Question Period (QP) cards prepared for the PWGSC Minister, one of which concerned the issue of visible minorities. [translation]
4. A-2009-00042 (April 21, 2009): An access request for information on financial disbursements by the Canadian Government on office furniture through the aboriginal set aside funds in 2007–2008.
5. A-2009-00033 (April 27, 2009): An access request for a list of all QP notes created for the Minister from April 13 to April 27, 2009. In this list of QP notes, “(French)” was indicated next to the name of those notes drafted in French.
6. AC-2009-00039 (June 16, 2009): A consultation request from Health Canada pertaining to an access request on the completed Affiliations and Interests Declaration Form for Chrysolite [sic] Expert Panel members.
7. AC-2008-00049 (June 6, 2008): A consultation request from the Department of National Defence pertaining to an access request for briefing notes to the Minister on the status of the Cyclone Helicopter Procurement and/or problems with the contractor.
8. AC-2009-00056 (July 22, 2009): A consultation request from Library and Archives Canada regarding written reports provided by the Independent Review Monitor appointed to oversee the request for proposals process for the Portrait Gallery of Canada.

In the course of the investigation, 17 witnesses were summoned to testify under oath.

Confidentiality orders were issued to protect the integrity of the investigation. The witnesses were advised of their right to retain counsel of their choice. Sixteen of the witnesses chose to be represented by counsel. The witnesses’ testimony was transcribed by a court reporter. Witnesses were also given an opportunity to review the transcripts of their testimony. Certain witnesses received notices of potential adverse findings and were given an opportunity to present further evidence and/or representations prior to the finalization of the Preliminary Report of Facts and Findings. Representations were received and considered.

All witnesses were then given an opportunity to provide further evidence and/or representations in relation to the preliminary report. Representations that were received were considered in the preparation of the preliminary report.

On April 12, 2013, the OIC provided PWGSC with an opportunity to provide representations under section 35 of the Act. The letter requesting these representations was included as an appendix to the preliminary report. In addition to seeking representations on the findings set out in the preliminary report, the OIC also sought representations about the designation of requests as “high profile” or “interesting,” the internal processes put in place by PWGSC to address potential breaches of section 67.1 of the Act, the “zero-tolerance policy,” communications between access officials and members of the Minister’s Office, the duty to assist and records held in the Minister’s Office.

On May 10, 2013, the Deputy Minister provided representations on behalf of the Department.

In its representations, PWGSC indicated that it takes its responsibilities under the Act very seriously. PWGSC also noted that it had undertaken a number of initiatives during and after since March 2011, the date of the Commissioner’s previous special report on interference.^{Footnote 5} Many of these initiatives were aimed at increasing awareness of the Act and the responsibilities of employees in its implementation. In addition, PWGSC made changes to its senior management review of responsive records by reducing the time allocated to senior managers and by conducting such reviews simultaneously. PWGSC also implemented a system whereby delays in the processing of requests are identified and promptly addressed at a senior level. Moreover, an increased level of resources was provided for the access to information function.

These are all laudable initiatives that, in the view of the Commissioner, should assist PWGSC in better meeting its responsibilities under the Act.

Of note, the Deputy Minister made no comment on or correction to the Preliminary Report of Facts and Findings. Accordingly, this document was finalized and is available as Appendix A. As such, the final version of the report serves as the Commissioner’s findings of fact in this investigation. These findings are based on the documentary evidence obtained, the testimonial evidence of the witnesses and the representations of the witnesses in relation to the notices of potential adverse findings provided to them.