Decisions

The complainant alleged that Employment and Social Development Canada (ESDC) had improperly withheld information under the following provisions of the Access to Information Act:

1. paragraph 16(1)(c) (law enforcement, conduct of investigations);
2. subsection 16(2) (facilitating the commission of an offence);
3. subsection 19(1) (personal information);
4. paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information);
5. paragraph 20(1)(c) (financial impact on a third party);
6. paragraph 21(1)(a) (advice or recommendations);
7. paragraph 21(1)(b) (accounts of consultations or deliberations); and
8. section 23 (solicitor-client and litigation privilege).

This was in response to an access request for records related to CSL Group Inc., including policy health and safety committee reports and workplace health and safety committee reports, from 2012 to 2022. This allegation falls under paragraph 30(1)(a) of the Act.

The complainant also alleged that ESDC had not conducted a reasonable search for records in response to the same access request. This allegation falls under paragraph 30(1)(a) of the Act.

Apart from some personal information and recommendations that clearly meet the requirements for exemption, ESDC and the third party did not establish that any of the other information was exempt from disclosure.

ESDC did not provide adequate evidence that its search for records was reasonable.

The Information Commissioner ordered that ESDC disclose most of the information and carry out a new search for records. ESDC gave notice to the Commissioner that it would comply with the order. The complaint is well founded.

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.