Indigenous Services Canada (Re), 2024 OIC 03
Date: 2024-02-08
OIC file number: 5823-01046
Institution file number: A-2022-00376
Summary
The complainant alleged that Indigenous Services Canada (ISC) did not conduct a reasonable search in response to an access request under the Access to Information Act for records related to the Non-Insured Health Benefits Mental Health Counselling benefit, including the “detailed review” of how services are delivered and associated expenditure decisions; proposals to fund community mental wellness projects outside of Benefits Program authorities, and the "risk-based review to improve financial controls and management practices across all regions".
During the investigation, ISC indicated that the “detailed review” was conducted verbally. However, given that the term “detailed review” came from a Briefing Note prepared by ISC, it was reasonable to conclude that the term “detailed review” was significant, and that some responsive documentation would exist. The OIC also questioned why no records were found relating to parts 2 and 3 of the request.
ISC advised the OIC that the subject matter experts and records holders originally tasked with the search, “searched their records with a broader lens in terms of scope and timeframe”. ISC confirmed that these additional efforts generated at least 170 pages of documents that were not found initially and that those records are now being triaged and reviewed.
The Information Commissioner ordered that ISC complete the retrieval of the records identified by ISC as responsive to the request and provide a new response to the complainant no later than the 36th business day after the effective date of the order. ISC gave notice that it would implement the order.
The complaint is well founded.
Complaint
[1] The complainant alleged that Indigenous Services Canada (ISC) did not conduct a reasonable search under the Access to Information Act when responding to an access request seeking records for the following:
[2] 1.The "detailed review of how services are delivered and associated expenditure decisions in the Non- Insured Health Benefits Mental Health Counselling benefit" mentioned in briefing note #HW354 dated Jan. 4, 2021; 2. Information on proposals received from regional offices to fund community mental wellness projects outside of Non-Insured Health Benefits Program authorities, mentioned in above-noted briefing note; 3. and, the "risk-based review to improve financial controls and management practices across all regions" for the mental health benefit, mentioned in briefing note #HW354.
[3] The complaint falls within paragraph 30(1)(a) of the Act.
Investigation
[4] ISC 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.
[5] 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.
[6] This search does not need 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?
[7] Documents from ISC’s processing file show that the Office of Primary Interest (OPI) in this case - the First Nations and Inuit Health Branch (FNIHB) - believed that there were records responsive to the request. In a memo between FNIHB and ISC’s Access to Information and Privacy (ATIP) unit, FNIHB stated it required an extension of time to “review and gather records, especially considering the Regional component”. In response to follow-up questions from the Office of the Information Commissioner (OIC) and the ATIP office, FNIHB maintained that the “detailed review” referred to in part 1 of the request was conducted verbally and that there are no relevant records. It is not clear from documents on the file nor from follow-up questions to the ATIP unit, why no records were located for any of the three parts of the request or whether any other OPIs were tasked to search for records.
[8] The OIC finds that the FNIHB response that the “detailed review” was conducted verbally and that no records exist was not reasonable, and should have been challenged by the ATIP unit. As the requester referenced the “detailed review” from a Briefing Note prepared by ISC, it is reasonable to conclude that the term “detailed review” was significant, even if it did not refer to a specific document or single report.
[9] As such, based on the responses to the OIC questions and the lack of details in the processing documents provided, the OIC advised ISC that it was not convinced a reasonable search was conducted when responding to the request.
[10] In response, ISC advised the OIC that the subject matter experts and records holders originally tasked with the search, “searched their records with a broader lens in terms of scope and timeframe”. ISC confirmed that these additional efforts generated 170 pages of documents “so far” that were not found initially and that those records are now being triaged and reviewed.
[11] While ISC officials have agreed to process these records, they also claim that the records are not responsive to the request but that ISC will process them regardless. Without the records or any additional information to justify ISC’s position, I cannot agree that the records are not responsive to the request, nor am I convinced that all records responsive to this request have been retrieved. As ISC continues to retrieve and process more records, it should consider that the requester was seeking any records related to the review, not a document called “detailed review”.
[12] ISC did not provide a timeline to complete this review nor when it would be in a position to issue a subsequent response to the complainant.
[13] In light of the above, I conclude that ISC did not conduct a reasonable search for records in response to the access request.
Outcome
[14] The complaint is well founded.
Order
I order the Minister of Indigenous Services Canada to:
- Complete the retrieval of all records responsive to the request.
- Process all additional pages of records located as a result of the additional searches.
- Provide a new response to the access request on the 36th business day following the date of the final report.
- Give the complainant access to 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).
Initial report and notice from institution
On December 19, 2023, I issued my initial report to the Minister of Indigenous Services Canada setting out my orders.
On January 25, 2024, the Minister of Indigenous Services Canada gave me notice that she would be implementing my order. The Minister confirmed that an additional search for records was conducted, which resulted in more responsive records being located. These records are currently being processed and a new response to the complainant will be provided by ISC in the next 60 days.
Review by Federal Court
When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. Whoever applies for a review must do so 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 this deadline, the order(s) takes effect on the 36th business day after the date of this report.