Canada Post (Re), 2023 OIC 31

Date: 2023-07-05
OIC file number: 5820-02866
Institution file number: A-2020-00038

Summary

The complainant alleged that Canada Post failed to conduct a reasonable search in response to an access request made under the Access to Information Act for records containing the complainant’s name. The complaint falls within paragraph 30(1)(a) of the Act.

The investigation determined that Canada Post had not demonstrated that all relevant Offices of Primary Interest (OPI) had been tasked with retrieving records and that the OPIs tasked with retrieving records produced all relevant records under the OPI’s control. Canada Post did not provide sufficient explanation for the lack of certain records identified by the complainant that were not retrieved but would have been responsive to the access request.

The Information Commissioner ordered that Canada Post determine whether additional responsive records exist, and if so, process those relevant records and provide a final response to the complainant.

Canada Post gave notice that it would implement the order.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Canada Post failed to conduct a reasonable search in response to an access request made under the Access to Information Act for records containing the complainant’s name. The complaint falls within paragraph 30(1)(a) of the Act.

[2]      The Office of the Information Commissioner (OIC) is separately investigating allegations that Canada Post has improperly withheld information in response to the same access request (OIC file number 5820-02867).

Investigation

Reasonable Search

[3]      Canada Post was required to conduct a reasonable search for records that fall within the scope of the access request — that is, one or more experienced employees, knowledgeable in the subject matter of the request, must have made reasonable efforts to identify and locate all records reasonably related to the request.

[4]      A reasonable search involves a level of effort that would be expected of any fair, sensible person tasked with searching for responsive records where they are likely to be stored.

[5]      This search does not have to be perfect. An institution is therefore not required to prove with absolute certainty that further records do not exist. Institutions must however be able to show that they took reasonable steps to identify and locate responsive records.

Did the institution conduct a reasonable search for records?

[6]      The OIC reviewed documentation related to Canada Post’s search for responsive records.

[7]      The OIC also examined the responses of the Office of Primary Interest (OPI) to determine whether it had fulfilled its obligations under the Act to identify records relevant to the access request, under its control.

[8]      In response to the access request, Canada Post provided the complainant with 1101 pages of records partially responsive to the request.

[9]      From the outset of the investigation, the complainant noted that major classes of records were missing from the response or were largely incomplete. Among the many examples provided by the complainant, such missing or incomplete records included personnel files, overtime sheets, day logs, and handwritten documents completed by the complainant.

[10]    During the investigation, on December 6, 2022, Canada Post disclosed additional records, which it had not included when it responded to the access request. Canada Post indicated to the OIC that these records were the result of additional taskings. Although Canada Post provided details of the additional OPIs that were tasked, Canada Post did not provide any representations to support that these were the appropriate OPIs. Given the complainant worked at multiple locations, it seems likely that additional OPIs should have been tasked with searching for relevant records.

[11]    The complainant informed the OIC that they were not satisfied with the supplementary disclosure, providing examples of records they felt should also have been included in the response.

[12]    The OIC questioned the lack of handwritten records that would have been submitted by the complainant, such as leave forms, bid sheets she completed, grievance forms, incident reports, and overtime/signout sheets. The OIC requested clarification from Canada Post as to why such records would not exist, or would have been considered non-responsive to the request, but Canada Post indicated that it could not provide any such clarification.

[13]    The responsive records also contain certain documents from one work location but lack the same type of documents from other locations the complainant worked. For example, overtime and sign in sheets from Delton depot appear within the records, for a very small portion of the timeline covered by the request, but no such records from the other depots the complainant worked in are found within the records. Canada Post did not provide the OIC with any clarification as to why only Delton was tasked with retrieving records when the complainant worked at other depots such as Rosedale.

[14]    Other types of records that may be responsive to the request could not be found within the records, such as day logs. The OIC questioned whether day logs were considered non-responsive or whether no such records were found. Canada Post indicated that it could not provide any representations with respect to day logs.

[15]    The overall lack of representations that Canada Post was able to provide on the completeness of its search is unacceptable. It is unfortunate that the individuals with the first hand knowledge to track down responsive records no longer work for Canada Post. That does not, however, free Canada Post from its obligation to perform a reasonable search for records in response to this access request. Canada Post must determine where it is most likely that responsive records would be found and task any OPIs that have not yet provided such records.

[16]    In light of the above, I conclude that Canada Post did not conduct a reasonable search for records in response to the access request.

Result

[17  ]  The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the President of the Corporation to:

1. Determine whether additional OPIs should have been tasked in the search for records;
2. Task all relevant OPIs who have not yet been tasked, or who appear to have provided incomplete records, with retrieving all records responsive to the request;
3. Review and process any records that are deemed relevant and have not already been released to the complainant; and
4. Provide a final response to the complainant forthwith.

On May 29, 2023, I issued my initial report to the President of the Corporation setting out my order.

On June 19, 2023, the General Manager, Corporate Affairs, Compliance and Regulatory Affairs gave me notice that Canada Post would be implementing my order.

When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They must apply for this review within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by these deadlines, this order takes effect on the 36th business day after the date of this report.