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Public Services and Procurement Canada (Re), 2025 OIC 21

Date: 2025-03-24
OIC file number: 5820-03828
Access request number: A-2020-00477

Summary

The complainant alleged that Public Services and Procurement Canada (PSPC) had not conducted a reasonable search for records in response to an access request under the Access to Information Act. The request was for specific records related to a contract for decommissioning and demolition services at the Health Protection Building that was awarded to a subcontractor. The allegation falls under paragraph 30(1)(a) of the Act.

PSPC did not acknowledge control over some of the requested records, however, the Information Commissioner found that the records, if they exist, were under PSPC’s control. Additionally, PSPC did not demonstrate that it had conducted a reasonable search for responsive records.

The Commissioner ordered that PSPC seek assistance and copies of records from a third party, provide a new response to the complainant and give the complainant access to any additional records it located. PSPC gave notice to the Commissioner that it would comply with the order. The complaint is well founded.

Complaint

[1]        The complainant alleged that Public Services and Procurement Canada (PSPC) had not conducted a reasonable search for records in response to an access request under the Access to Information Act. The request was for the following records related to a contract for Decommissioning-Internal Demolition (Consulting Services) at the Health Protection Building (HPB) that was awarded to Temprano & Young Architects Inc. (PSPC Contract No. PWG360478):

  1. Complete DSR completed at time of Project Design Work, as per Addendum 1;
  2. Final Feasibility Report (required Project Deliverable), as per Addendum 1;
  3. Environmental Performance Assessment, Future Plans for Asset (HPB), provided to Temprano & Young by BGIS and/or PWGSC, as per Addendum 3;
  4. All 5 meeting minutes Temprano & Young partook during Project Definition Stage & Project Design Stage, as per Addendum 3;
  5. "Inventory of Equipment Deemed Usable" document which was completed during Site Investigation & provided to Project Mgr., as per Addendum 2;
  6. HPB Mechanical & Electrical Drawings provided a job Showing, as per Addendum 1;
  7. HPB Original PDF Architectural, Structural Drawings, as per Addendum 2&3;
  8. All HPB DSRs & IAQs completed in FY 2011;
  9. All HPB DSRs & IAQs completed in FY 2012;
  10. All HPB DSRs & IAQs completed in FY 2013;
  11. All HPB DSRs & IAQs completed in FY 2014;
  12. All HPB DSRs & IAQs completed in FY 2015; and,
  13. All HPB DSRs & IAQs completed in FYs 2016-2017-2018-2019.

[2]        The allegation falls under paragraph 30(1)(a) of the Act.

[3]        During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate whether PSPC had conducted a reasonable search for items 1, 2, 6 and 7 of the request.

Investigation

Control of records

[4]        The Act provides requesters with a right of access to records that are under the control of government institutions. While the Act does not define “control,” the Supreme Court of Canada held that the term should be interpreted broadly and liberally to provide a meaningful right of access. (See Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25.)

[5]        Records under the control of institutions need not be restricted to records in the physical possession of a government institution.

  • When institutions do not have physical possession of the records, they must, in order to determine whether they have the records under their control, consider whether the records relate to a departmental matter and, if so, whether a senior official of the institution should reasonably expect to obtain a copy of the records upon request. Institutions must consider all relevant factors when making this determination.
  • When institutions have physical possession of the records, they must consider all relevant factors when determining whether they have the records under their control.

[6]        In both cases, the precise factors to be considered vary depending on the circumstances. Such factors include and are not limited to whether the content of the records is relevant to the mandate, obligations, operations and functions of the institution, who created the records and why the institution created or obtained them. Generally, no one factor is determinative. Records are under the control of an institution when, taken together, the factors support such a finding.

[7]        When records are not under the control of the institution, they do not fall within the scope of the Act. Therefore, institutions are not required to give access to them.

Are the requested records under the institution’s control?

[8]        The request relates to a subcontract that was awarded by Brookfield Global Integrated Solutions (BGIS) to Temprano & Young Architects Inc. BGIS is a private company that manages PSPC’s buildings in certain locations.

[9]        PSPC did not explicitly state in its representations that it did not have control over any of the requested records. Rather, PSPC indicated that it has the records responsive to items 5 and 8-13 under its control. With respect to records that would be responsive to items 3 and 4, however, PSPC indicated either these records did not specifically exist, or no records were found. PSPC also indicated it had made no attempts to inquire with BGIS as to whether BGIS might have a copy of these records.

[10]      For this reason, I am inferring that PSPC does not acknowledge control over records responsive to items 3 and 4, should any exist, and I must thus assess whether PSPC would have control of these records, if they existed.

[11]      Turning to the first part of the control test established by the Supreme Court of Canada in Canada (Information Commissioner) v. Canada (Minister of National Defence) supra, I find that records responsive to items 3 and 4, should any exist, relate to a PSPC departmental matter. In Canada (Public Services and Procurement) v. Canada (Information Commissioner), 2024 FC 918 (PSPC), the court considered the scope of PSPC’s “departmental matters”, finding that PSPC’s responsibilities extended to “all matters […] relating to […] the construction, maintenance and repair of public works, federal real property and federal immovables” among other things (para 65). Furthermore, where PSPC contracted out the work that fell within its responsibilities, this work continued to relate to PSPC’s departmental matters (para 70), as did work subcontracted by the main contractor (para 73).

[12]      Should any documents responsive to item 3 exist, I find that they would relate to a PSPC departmental matter. Any environmental assessment or document detailing plans for the asset would directly relate to PSPC’s real property responsibilities set out in the Department of Public Works and Government Services Act.

[13]      Considering any documents responsive to item 4, I find similarly that they would relate to a departmental matter, should they exist. Meeting minutes relating to the five meetings expected to have taken place in keeping with Addendum 3, would relate to how the work under the subcontract was to be carried out. Given the court’s finding in PSPC that subcontracted work can relate to a departmental matter, I find that if any of these meeting minutes exist, they would relate to a PSPC matter for the purposes of the control test set out above.

[14]      The second part of the control test asks whether a senior official of the institution should reasonably expect to obtain a copy of the records upon request, considering all relevant factors. In regards to both items 3 and 4, I answer this question in the affirmative for the reasons that follow.

[15]      In the context of the OIC’s investigation that resulted in the referenced court case, PSPC provided the OIC with a copy of the main contract between PSPC and BGIS. This same contract is relevant here, and various portions of the contract provide indications of PSPC’s control of the records requested under items 3 and 4. This includes a legally enforceable right of access to such records, PSPC’s authority to control or regulate the use or disposition of such records, and its authority over the communication of such records (see: PSPC at paras. 87-95). Paragraphs 86 and 96 of the PSPC decision are of particular relevance:

[86] The Main Contract contains the legal foundation for BGIS to do work and to subcontract. The parties exchanged detailed submissions, both in writing and orally at the hearing, concerning whether specific terms in the Main Contract permitted PSPC to require BGIS to provide copies of the records mentioned in the Request. While a contractual right to obtain copies is obviously influential, it is not necessarily determinative of control under subsection 4(1). Nor is the existence of such a contractual right a condition precedent to a conclusion that the second step of National Defence has been met: see YUDC v. Information and Privacy Commissioner, at para 55. As the parties recognized, one cannot lose sight of the larger question to be answered: whether a senior PSPC official could (i.e, should reasonably be able to) obtain a copy of the records from BGIS.

[…]

[96] The provisions identified above in the Main Contract are not the only indications that if a senior official at PSPC were to ask for copies of the documents in the Request, BGIS would respond positively and provide them. BGIS has already shown its cooperation and assistance in relation to the Request.

[16]      I find that several contractual provisions within the main contract support that PSPC should reasonably expect to obtain copies of the records responsive to items 3 and 4 upon request, if they exist, including section 2.5.7, section 2.10.5, section 2.44, section 5.9.2.5 and section 5.9.2.13 of the main contract.

[17]      In light of the Federal Court decision in PSPC, and the facts before me in this case, I conclude that any records responsive to this request that are in the physical possession of BGIS are under the control of PSPC and should have been retrieved in response to this request. PSPC made no representations as to why it would not have been reasonable or necessary for PSPC to request responsive records from BGIS.

[18]      I conclude that all of the records, if they exist, were under the control of PSPC. Therefore, PSPC was required to give access to them.

Reasonable Search

[19]      PSPC 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.

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

[21]      This search does not have to be perfect. An institution therefore is 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 under their control.

Did the institution conduct a reasonable search for records?

[22]      The Office of Primary Interest (OPI) PSPC tasked with searching for responsive records was the Real Property Branch and PSPC released 623 pages of records in response to the request.

[23]      For the reasons that follow, I am not satisfied that PSPC conducted a reasonable search for records responsive to the request.

[24]      PSPC, in support of the reasonableness of the search performed, asserted that it performed an extensive search of both electronic and paper records, using appropriate key words to search electronic repositories.

[25]      This assertion, however, is undermined by the fact that PSPC has since identified numerous additional records that it omitted to identify when initially responding to the request. For example:

  • Indoor Air Quality Reports (responsive to items 8-13 of the request); and
  • A record responsive to that portion of the request for “Inventory of Equipment Deemed Usable Document (responsive to item 5 of the request).

[26]      PSPC did not cogently explain how such records were not identified in response to its original searches. For instance, while PSPC asserted that certain deliverables under the contract were not prepared because the project was cancelled, it did not identify what deliverables this entailed nor how this explained the absence of any particular records responsive to the request.

[27]      The complainant alleged that the following records are missing from PSPC’s response to the request:

  • Item 3 - Environmental Performance Assessment, Future Plans for Asset (HPB), provided to Temprano & Young by BGIS and/or PWGSC, as per Addendum 3;
  • Item 4 - All 5 meeting minutes Temprano & Young partook during Project Definition Stage & Project Design Stage, as per Addendum 3;
  • Item 5 - "Inventory of Equipment Deemed Usable" document which was completed during Site Investigation & provided to Project Mgr., as per Addendum 2;
  • Item 8 - All HPB DSRs & IAQs completed in FY 2011;
  • Item 9 - All HPB DSRs & IAQs completed in FY 2012;
  • Item 10 - All HPB DSRs & IAQs completed in FY 2013;
  • Item 11 - All HPB DSRs & IAQs completed in FY 2014;
  • Item 12 - All HPB DSRs & IAQs completed in FY 2015; and,
  • Item 13 - All HPB DSRs & IAQs completed in FYs 2016-2017-2018- 2019.

[28]      It is my view that it was unreasonable for PSPC to have failed to seek and obtain responsive records from BGIS vis a vis records responsive to items 3 and 4 of the request. This is because, for reasons that I have already outlined, it is my view that additional records, if they exist, would be under PSPC’s control.

[29]      For item 5, PSPC indicated that it did retrieve this record, but had marked it as non-responsive in error. PSPC has not yet processed nor provided this record to the complainant.

[30]      For items 8-13, PSPC indicated that all Designated Hazardous Substance Reports were provided to the complainant, but that the Indoor Air Quality Reports were not. PSPC has now located these reports but has not yet processed them nor provided them to the complainant. PSPC also indicated it had found additional records related to these reports but not specifically requested, which it is willing to provide to the complainant.

[31]      I note that PSPC did not provide any page numbers pointing to the location of the Designated Hazardous Substance Reports within the response and the OIC found only two documents from the requested time period with the title “Designated Hazardous Substance Report” (pages 700-708). While acknowledging that records with various other names may be equivalent, and therefore PSPC may have processed the records for all of the relevant years, PSPC has not demonstrated that this is the case. PSPC should verify that it has provided all of these reports, or their equivalent, to the complainant for the requested time periods. The complainant also noted that certain reports she received are titled as “Update” reports, but that no corresponding original reports were provided. PSPC should again verify that it has provided all available versions of the reports from the requested time periods.

[32]      Although the OIC questioned whether BGIS might reasonably be expected to hold responsive records, PSPC asserted that such a question is speculative. I find this consideration to be irrelevant, as until records are retrieved, the matter of where responsive records are held is most often speculative. For the reasons I have already outlined, I find that PSPC should have contacted BGIS in order to determine if in fact responsive records not in PSPC’s physical possession exist, and then obtain copies of those responsive records under PSPC’s control.

[33]      I conclude PSPC did not conduct a reasonable search for records.

Outcome

[34]      The complaint is well founded.

Orders

I order the Minister of Public Works and Government Services to do the following:

  1. Inquire with BGIS what documents were provided, if any, in response to question 9 in Addendum 3 as referenced in item 3 of the request text;
  2. Obtain copies from BGIS of any documents provided in response to question 9 in Addendum 3, as referenced in item 3 of the request text, if any exist;
  3. Obtain copies from BGIS of all minutes of meetings held with bid proponents during the “Project Definition Stage & Project Design Stage”, if any exist, per question 6 in Addendum 3, as referenced in item 4 of the request text;
  4. Seek information and assistance from BGIS concerning the Designated Hazardous Substance Reports and the Indoor Air Quality Reports to verify whether PSPC has all available versions of these reports, or their equivalent, for the period specified in item 8-13 of the access request;
  5. Obtain copies from BGIS of any versions of the Designated Hazardous Substance Reports and Indoor Air Quality Reports, referenced in items 8-13 of the request text, that PSPC does not possess, if any exist;
  6. Provide a new response to the complainant; and
  7. Give the complainant access to any additional records located as a result of the additional searches, 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 February 18, 2025, I issued my initial report to the Minister of Public Works and Government Services setting out my orders.

On March 18, 2025, PSPC’s Assistant Deputy Minister, Policy, Planning and Communications gave me notice that PSPC would be implementing the order. PSPC indicated that it will engage with BGIS to search for additional responsive records and provide a complete response to the complainant.

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.

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