Fisheries and Oceans Canada (Re), 2023 OIC 39
Date: 2023-11-09
OIC file number: 5822-07577
Institution file number: A-2022-01102/AM
Summary
The complainant alleged that Fisheries and Oceans Canada (DFO) did not conduct a reasonable search in response to an access request under the Access to Information Act for all records related to the Old Fort Band, Fort Babine Band, and Lake Babine Nation in British Columbia between 1871 and 1960. The complaint falls within paragraph 30(1)(a) of the Act.
During the investigation, the OIC sought information from DFO related to the program areas tasked to search for records and the parameters of the search. In response, DFO conducted a second search and re-tasked the relevant OPIs, including one additional program area that had not been tasked originally. As a result, approximately 7000 additional pages identified to be responsive to the request were retrieved.
The Information Commissioner ordered that DFO complete the retrieval of the records identified by DFO as responsive to the request and provide a new response to the complainant no later than 60 days after the effective date of the order. DFO gave notice that it would implement the order.
The complaint is well founded.
Complaint
[1] The complainant alleged that Fisheries and Oceans Canada (DFO) did not conduct a reasonable search in response to an access request under the Access to Information Act for all records related to the Old Fort Band, Fort Babine Band, and Lake Babine Nation in British Columbia between 1871 and 1960. The complaint falls within paragraph 30(1)(a) of the Act.
Investigation
Reasonable Search
[2] DFO 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.
[3] 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.
[4] 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?
[5] During the course of the investigation, the Office of the Information Commission (OIC) reviewed documentation related to DFO’s search for responsive records.
[6] The OIC examined the responses of the Offices of Primary Interest (OPIOPIs) to determine whether they had fulfilled their obligations under the Act to identify records relevant to the access request, under their control.
[7] The OIC required DFO to provide additional information related to the program areas tasked and the parameters of the search. In response, DFO conducted a second search and re-tasked the relevant OPIs, including one additional program area that had not been tasked originally. As a result, approximately 7000 additional pages identified to be responsive to the request were retrieved.
[8] In light of the above, I conclude that DFO did not conduct a reasonable search for records in response to the access request. However, given the additional search, I am now satisfied that a reasonable search has been conducted. DFO must now process the records and issue a supplementary disclosure to the complainant.
Result
[9] The complaint is well founded.
Order
Under subsection 36.1(1) of the Act, I order the Minister of Fisheries and Oceans to:
- Provide a new response to the complainant no later than the 60th business day following receipt of my final report;
- Give access to the responsive records, unless access to them, or to part of them, may be refused under a specific provision(s) of Part 1 of the Act. When this is the case, name the provision(s).
On October 23, 2023, I issued my initial report to the Minister of Fisheries and Oceans setting out my intended order.
On November 7, 2023, the Acting Director of the Access to Information and Privacy Division gave me notice that DFO would be implementing my order and would be providing a final response to the requester by January 12, 2024.
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.