Employment and Social Development Canada (Re), 2021 OIC 22
Date: 2021-08-22
OIC file number: 5819-03938
Institution file number: A-2019-02045
Summary
The complainant alleged that Employment and Social Development Canada (ESDC) was incorrect in stating that it could not process an access request under the Access to Information Act. The access request was for records related to a named employee including dates of leave, job grade, letters of offer and salary history. Because the records in question would be the personal information of a named individual who is not the complainant, ESDC did not process the records and claimed that they were outside its control. While the Office of the Information Commissioner (OIC) agrees that the access request is for the personal information about a named individual who is not the complainant, the investigation concluded that the records at issue are under ESDC’s control. As a result, ESDC ultimately agreed to process the access request. The complaint is well founded.
Complaint
[1] The complainant alleged that ESDC was incorrect in stating that it could not process an access request under the Access to Information Act. The access request was for records related to a named employee including dates of leave, job grade, letters of offer and salary history for which ESDC claimed that they were outside its control.
Investigation
Control of records
[2] The Act provides requesters with a right of access to records that are “under the control” of government institutions. While the Act does not define “under the control,” the courts have affirmed that this phrase should be interpreted broadly and liberally in order to make the right of access meaningful. (See Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25.)
[3] A range of factors must be considered when determining whether an institution has control over the records. The scope of what constitutes relevant factors, and the relative weight accorded to each, varies depending on the circumstances.
Are the records under the control of the institution?
[4] After it receives a request, one of the first steps an institution must undertake is to task the request to the Offices of Primary Interest (OPI). Receiving a tasking is the trigger for OPIs to search for and produce records related to an access request.
[5] The investigation confirmed that ESDC had not tasked the OPI to gather records responsive to the request given it did not believe that the records, if they existed, were under ESDC’s control because the records in question would be the personal information of a named individual who is not the complainant.
[6] The fact that the documents were under the control of ESDC does not necessarily mean that they must be disclosed, but rather, the records must be reviewed and processed in accordance with the Act.
[7] During the investigation, the OIC also confirmed that the requested records were in the physical possession of ESDC.
[8] In determining whether the records were, in fact, under ESDC’s control, the OIC considered this and weighed it against other relevant factors, including:
- whether the contents of the records relate to an institutional matter and involve ESDC’s mandate, obligations, functions and operations;
- whether the records were created to fulfil any ESDC officer’s or employee’s duties or functions and/or were intended to be used for any employment-related purpose; and
- whether the records were created to fulfil a statutory requirement imposed on ESDC.
[9] While the OIC agrees that the access request is for the personal information about a named individual who is not the complainant – dates of leave, job grade and salary history – the OIC also concluded that the records:
- relate to institutional operations;
- are intended for employment-related purposes; and
- fulfill a statutory requirement imposed on ESDC.
[10] Further to discussions with the OIC, ESDC ultimately agreed that the records were under its control and agreed to process the access request. ESDC has since confirmed that the OPI has been tasked and records have been processed under the Act. A response has since been issued to the complainant.
Result
[11] The complaint is 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.