Public Safety Canada (Re), 2021 OIC 7

Date: 2021-03-16
OIC file number: 3217-01373
Institution file number: A-2017-00232

Summary

The complainant alleged that Public Safety Canada (Public Safety) refused to process an access request for every record under its control and all associated metadata related to a series of keywords. Public Safety explained that portions of the request did not meet with certain requirements of the Access to Information Act and that processing any parts of the request would involve an expansive volume of records and all of its operations. The complaint is well founded yet the Commissioner agreed with Public Safety’s position that parts of the request did not satisfy the requirements of section 6. The Commissioner considered the effort required by an experienced employee to identify specific records as unreasonable and agreed that identifying portions of the records would take significant time and resources. Public Safety failed to meet its legislated obligations under the Act as it did not claim an extension of time and did not have the authority to refuse to process the request. The Deputy Minister of Public Safety Canada gave the Commissioner notice that he would process parts of the request and committed to processing 5,000 pages per year of the approximate 645 000 pages identified as relevant to the request.

Complaint

[1]      The complainant alleged that Public Safety Canada (Public Safety) refused to process an access request for every record under its control related to a series of keywords including but not limited to: counter-radicalization, countering violent extremism, de-radicalization, cyber radicalization, and anti-radicalization.

Investigation

[2]      During the investigation, the Office of the Information Commissioner (OIC) sought representations from Public Safety regarding their refusal to process this access request.

[3]      In their representations, Public Safety explained that the refusal was based on the expected large volume of records the request would generate. Public Safety also submitted that portions of the request did not meet with the requirements of section 6 of the Access to Information Act. It should be noted that the request contains three Schedules and 691 pages of references in appendix.

[4]      Public Safety finally indicated that when the complainant did not respond to a letter asking that the scope of the request be modified, it decided to simply close the request.

Did Public Safety comply with its legislated obligations under the Act?

Section 6: Request for access to records

[5]      Section 6 of the Act stipulates that a request for access to a record shall provide sufficient detail to enable an experienced employee of the institution to identify the record with reasonable effort.

[6]      In their representations, Public Safety acknowledged that parts of the request do in fact meet with the criteria of section 6—specifically, Paragraph 1 and Schedule A. However, Public Safety explained that the remaining portions did not. Public Safety referred to the complexity involved in processing this information and stated that it would be impossible for an experienced employee to identify whether or not records would be relevant or not to the request. Specifically, it would require an employee to cross-reference each document found with the 691 pages provided by the complainant as an appendix to the request, in order to ascertain if the information is relevant. Furthermore, it would require that each program area involved to have read and understood those 691 pages in order to conduct their respective searches for records.

[7]      In addition, the request also sought any metadata associated with the responsive records. Public Safety stated it would require more clarification for the term “metadata” in order to assess whether it would satisfy section 6.

[8]      Notwithstanding this, Public Safety claimed that it would not process the parts of the request that met with section 6. Public Safety explained that it processes each access request it receives as a whole and not in parts. Further, Public Safety stated that processing Schedule A of the request would involve all of its operations including those of the Royal Canadian Mounted Police and that the time involved would surpass any length of time it has spent to date processing requests.

[9]      I agree with Public Safety’s position that Paragraph 1 and Schedule A are sufficiently detailed to satisfy the requirements of section 6.

[10]    I also agree that parts of the request do not satisfy the requirements of section 6. Specifically, I agree that the effort required by an experienced employee to identify records responsive to Paragraph 2, “Schedule B” and “Schedule C,” of the request is unreasonable.

[11]    Public Safety’s position that it treats access requests “as a whole” (that is, as either meeting the requirements of section 6 or not—with nothing in between) is not supported by the Act. I am of the view that Public Safety’s refusal to process any part of the request is contrary to section 6. It must process Paragraph 1 and Schedule A of the request, since those parts of the request are sufficiently detailed to enable an experienced employee of Public Safety to identify responsive records with a reasonable effort.

[12]    With regard to metadata for records falling within the scope of Paragraph 1 and Schedule A of the request, I am of the view that a Public Safety employee who is knowledgeable in the area of information technology could assist in clarifying the term and potentially identifying the metadata.

[13]    I note that identifying all of the records responsive to Paragraph 1 and Schedule A of the request would take significant time and resources, given the broad scope of the request. It would have been helpful, and consistent with the principles underlying the Act, for the complainant to have narrowed or clarified the scope of the request. This is especially so, given resource constraints faced by institutions and delays faced by requesters. The use of the Act in this manner exacerbates these significant issues and, unfortunately, weakens the access regime for other requesters. 

Subsection 9(1): Extension of time

[14]    In refusing to respond to the request, Public Safety failed to meet its legislated obligations under the Act. The Act requires that the head of an institution respond to access requests within 30 days of their receipt, unless an institution meets the specified circumstances described in subsection 9(1) in order to claim an extension of time. 

[15]    In the present instance, Public Safety’s failure to respond to the request was not based on any of the specified circumstances set out in subsection 9(1). Accordingly, neither subsection 9(1) nor any other provision in the Act provides Public Safety with the authority to refuse to process the request. 

Responsibility of government institutions

[16]    Subsection 4(2.1) of the Act provides that: “the head of a government institution shall, without regard to the identity of a person making a request for access to a record under the control of the institution, 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.”

[17]    The complainant requested that the records be provided in their “native electronic format.” It is the OIC’s experience that Access to Information and Privacy offices within government institutions have consulted with their Offices of Primary Interest (OPI) regarding this issue and were often successful in releasing information in the format requested. In keeping with subsection 4(2.1), it is my position that Public Safety is required to conduct its own consultations in this regard.

[18]    More generally, Public Safety’s refusal to process any part of this request is inconsistent with making every reasonable effort to assist the requester in connection with the request and to respond to the request accurately and completely. 

Results

[19]    Public Safety is deemed to have refused access to the requested information, as per subsection 10(3).

[20]    The complaint is well founded.

Recommendations

I recommend that Public Safety:

1. Proceed with processing Paragraph 1 and Schedule A of the request.
2. Provide a timeline to the OIC and the complainant by which Paragraph 1 and Schedule A of the request will be processed;
3. Consult with OPI(s) regarding the term “metadata” and process any information falling within this scope that meets the requirements of section 6;
4. Consult with OPIs and, subject to the regulations, provide information responsive to Paragraph 1, Schedule A of the request in the format requested.

On October 22, 2020, I issued my initial report to Public Safety setting out my recommendations.

On December 23, 2020, the Deputy Minister of Public Safety Canada gave me notice that he would process Paragraph 1 and Schedule A of the request and committed to process 5,000 pages per year (over 645 000 pages of records were identified as relevant on an initial review). The Deputy Minister is of the view that this rate is consistent with current capacity levels and that it maintains Public Safety’s ability to ensure the right of access for other Canadians.

I understand that recently, the complainant expressed to the OIC a commitment to work with Public Safety and reconsider the scope of the request. I encourage Public Safety and the complainant to work together to fulfil this request in a realistic timeframe. I also encourage Public Safety to consider whether it could process more than 5,000 pages per year. Based on my experience, the current target is not as ambitious as it could be.  I also encourage Public Safety to communicate with the complainant about “metadata” and the format in which the information will be provided and to consult with the relevant OPI(s) regarding these aspects of the request.

Having made my recommendations, my investigation is now concluded.