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Who Do the Department’s Lawyers Really Work for?

Background

An individual concerned about the government’s refusal to pay interest on the retroactive amounts awarded to her by way of disability pension made an access request to Human Resources Development Canada (HRDC), now known as Human Resources and Social Development (HRSD), for records about Canada Pension Plan (CPP) Disability Plan. In particular, she asked for records concerning a recently launched class action suit against the government seeking interest on retroactive disability pension payments.

In response, HRSD provided 12 pages of records as well as a few previously released records. Only one record (the statement of claim) was provided (or exempted) concerning the related class action suit.

In particular, HRSD did not, in response to the request, search for relevant records which may have been held by the department’s in-house lawyers. HRSD took the view that its lawyers are employees of the Department of Justice and, even though the lawyers’ offices may be on HRSD premises, any records held exclusively by them and not shared with HRSD employees, are Department of Justice records, not HRSD records. Under this view, the requester would have to make an access request to the Department of Justice rather than to HRSD for any records the in-house lawyers might hold relating to the pension interest class action.

Legal Issues

Does an access request, addressed to HRSD, cover records relevant to the request which are held by the HRSD legal branch?

The investigation confirmed that two class actions had been filed seeking payment of interest on retroactive CPP disability pension payments. HRSD’s in-house lawyers were seized of these actions, and HRSD was the "client" department.

The investigation confirmed that some 53 pages of records relevant to the access request were held exclusively in HRSD’s legal services branch.

The Information Commissioner concluded that the lawyer in HRSD’s legal branch, who had physical possession of records relevant to the access request, was an employee of the Department of Justice. He also took into account the fact that the records the lawyer possessed consisted of an exchange of communications between Department of Justice lawyers which were not shared (or intended to be shared) with HRSD employees.

In these circumstances, the commissioner concluded that the 53 records were not under the control of HRSD and, hence, a separate request would have to be made for them to the Department of Justice.

Lessons Learned

Although Department of Justice lawyers may be housed in and work for another government institution, not all records held by those lawyers will be considered to be under the control of the client department. Some record held by lawyers consist of communications between or among Department of Justice lawyers which are not shared with, or intended to be shared with, officials of the client department. Such records remain under the control of the Department of Justice and access requests for them must be addressed to the Department of Justice. 

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