Decisions

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.

The complainant alleged that Health Canada had improperly withheld information under paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act in response to an access request. The request was for documents related to a series of consultations that Health Canada organized with stakeholders, between November 30 and December 21, 2020. These consultations pertained to the Regulation Amending the Food and Drug Regulations, in particular to the Interim Order Respecting the Importation, Sale and Advertising of Drugs for Use in Relation to COVID-19: SOR/2021-45. This allegation falls under paragraph 30(1)(a) of the Act.

The complainant also alleged that Health Canada 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.

Neither Health Canada nor any of the third parties established that the requirements of paragraph 20(1)(b) were met. Health Canada also failed to establish that it had carried out a reasonable search when it responded to the request.

The Information Commissioner ordered that Health Canada disclose the names of the third parties in full and carry out a new search for records. Health Canada gave notice to the Commissioner that it would comply with the order. The complaint is well founded.

An institution submitted an application seeking the Information Commissioner’s approval to decline to act on an access request under subsection 6.1(1) of the Access to Information Act. In the institution’s opinion, the access request is vexatious and an abuse of the right of access.

The Commissioner finds that the institution established that the access request at issue is an abuse of the right of access. Moreover, the circumstances warrant that she provides her approval to the institution to decline to act on this access request.

The application is granted.