Privy Council Office (Re), 2025 OIC 54

Date: 2025-11-07
OIC file number: 5824-02892
Access request number: N/A

Summary

The complainant alleged that the Privy Council Office’s (PCO’s) record-keeping practices as they pertain to appointment processes are not in compliance with the Access to Information Act.

The allegation falls under paragraph 30(1)(f).

PCO explained that appointment selection members may take notes during the interview process to support them during the deliberation stage. The conclusions of the deliberations between members are transcribed into a final advice letter. In terms of PCO’s record-keeping obligations within the organization and under the law, the final advice letter to the Minister is the document that constitutes the official record of the deliberations. PCO confirmed that all other documents, including handwritten notes, are considered transitory and disposed of after appointments.

The complainant also claimed that PCO’s record keeping practices give rise to a potential offence under the Act. The investigation determined that that there was no evidence of records having been destroyed with “the intent to deny a right of access”. Instead, the evidence supported a finding that the interview notes were transitory records used in the preparation of the advice letters to the then-Minister. The investigation also observed that the right of access is contingent on institutions’ proper documentation and retention of records. The Information Commissioner previously recommended the creation of a statutory duty for public servants and senior officials to properly document key actions while noting that transitory records would not need to be retained in order to safeguard accountability and transparency of government.

The complaint is not well founded.

Complaint

[1] The complainant alleged that the Privy Council Office’s (PCO’s) record-keeping practices as they pertain to appointments by the selection members are not in compliance with the Access to Information Act.

[2] The allegation falls under paragraph 30(1)(f).

Investigation

Context

[3] On October 23, 2024, the Standing Committee on Public Accounts (the Committee) met to seek clarity on the process by which the chair of Sustainable Development Technology Canada (SDTC) was appointed in 2019. The Committee heard from a witness from the Privy Council Office (PCO) concerning the appointment process. In discussing interviews for the selection process, the witness explained that the selection members function like interview boards where notes are taken on the interview as it is being conducted.

[4] Certain Committee members expressed concern at the lack of traceable records regarding appointments overseen by government departments. The witness explained that, in terms of PCO’s record-keeping obligations within the organization and under the law, the final advice letter to the Minister is the required document that constitutes the official record of the deliberations of the selection members. The witness claimed that all other documents, including handwritten notes, are considered transitory and disposed of after appointments.

PCO’s representations

[5] On May 8, 2025, my office sought representations from PCO concerning its record keeping practices as they pertain to selection processes and how the information that is gathered is treated. PCO was also asked to explain how it considers the records transitory.

[6] In response, PCO’s explanation of the record-keeping practices as they relate to selection processes confirmed the information provided by the witness during the Committee meeting.

[7] With respect to transitory records, PCO maintains that:

During the interview process, each selection member may take notes as they deem necessary to support them during the deliberation stage. PCO does not produce a transcript of interviews.
Following the conclusion of interviews, the selection members deliberate on the overall performance of each candidate, and members can utilize their own personal notes if they wish during the discussion.
The conclusions stemming from these deliberations are transcribed by the PCO Scribe into an official record and the letter of advice to the Minister. Any personal hand-written notes taken by selection members are not collected or kept by PCO as they are considered transitory and not an official record.

[8] PCO officials also referenced the Treasury Board Secretariat’s Access to Information Manual section on transitory records (discussed below) to support its position.

Complainant’s representations

[9] Following the receipt of PCO’s representations, my office sought representations from the complainant in order to obtain their views. The complainant did not respond.

There was no obligation under the Act to retain the interview notes

[10] The creation and / or retention of records are governed by the Library and Archives of Canada Act, and Treasury Board’s Policy on Service and Digital, not the Access to Information Act (the Act).

[11] Subsection 12(1) of the Library and Archives of Canada Act requires government institutions to obtain the written consent of the Librarian and Archivist of Canada prior to disposing of or destroying any government records:

No government or ministerial record, whether or not it is surplus property of a government institution, shall be disposed of, including by being destroyed, without the written consent of the Librarian and Archivist or of a person to whom the Librarian and Archivist has, in writing, delegated the power to give such consents.

[12] The Librarian and Archivist of Canada has issued disposition authorizations for government institutions to use in its disposition of government records, including transitory records. This means that institutions may destroy records they deem to be transitory without further reference to Library and Archives Canada. The disposition authority specifies that:

Transitory records are not of business value. They may include records that serve solely as convenience copies of records held in a government institution repository, but do not include any records that are required to control, support or document the delivery of programs, to carry out operations, to make decisions or to provide evidence to account for the activities of government at any time.

[13] The Access to Information Act provides a right of access to records under the control of a government institution at the time an access request is made (see ss.2(2) and 4(1)). This right applies regardless of whether those records have business value.

[14] In the present instance, there is no indication that the interview notes were the subject of an access to information request, much less that such records were under PCO’s control at the time that an access request was made.

[15] There is therefore no basis for me to conclude that there was an obligation under the Act for the interview notes to have been retained by PCO.

The destruction of the interview notes did not violate the Act

[16] The complainant additionally submitted that PCO’s record keeping practices give rise to a potential offence under the Act.

[17] Although the Act does not govern the creation or retention of records, section 67.1 does make it an offence to, among other things, destroy records with the intent to deny a right of access. This provision reads:

67.1(1) No person shall, with intent to deny a right of access under [Part 1 of the Act],

(a) destroy, mutilate or alter a record;

(b) falsify a record or make a false record;

(d) direct, propose, counsel or cause any person in any manner to do anything mentioned in any of paragraphs (a) to (c).

(2) Every person who contravenes subsection (1) is guilty of:

(a) an indictable offence and liable to imprisonment for a term not exceeding two years or to a fine not exceeding $10,000 or to both; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding six months or to a fine no exceeding $5,000, or to both.

[18] As Information Commissioner it is not my function to conduct criminal investigations of possible offences under section 67.1. Instead, if in my opinion there is evidence that an offence has been committed under section 67.1, I am authorized pursuant to subsection 63(2) to disclose to the Attorney General of Canada information relating to the commission of that offence.

[19] In the present instance, it is my opinion that there is no evidence of records having been destroyed with “the intent to deny a right of access”. Instead, in my view, the evidence supports a finding that the interview notes were transitory records used in the preparation of advice letters to the then-Minister.

[20] In turn, there is no basis for me to conclude that the destruction of the interview notes violates the Act.

Observation

[21] The right of access is contingent on institutions’ proper documentation and retention of records.

[22] For this reason, I have previously recommended the creation of a statutory duty for public servants and senior officials to properly document key actions. This, in my view, would be in line with one of the main objectives of the Act, institutional accountability, and would strengthen responsibility, transparency, good governance and public trust. [Observations and Recommendations from the Information Commissioner on the Government of Canada’s Review of the Access to Information Regime, January 2021]

[23] Such a duty, however, should not be construed as meaning that “every” record created would need to be kept, just in case there is an access request. If information related to key actions is properly managed, transitory records would not need to be retained in order to safeguard accountability and transparency of government.

Outcome

[24] The complaint is not well founded.

Review by the 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. 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.