Final report (5819-03082): Health Canada

Institution: Health Canada
OIC file number: 5819-03082
Institution file numbers: A-2014-00280 (EDIMS) and A-2014-01444 (FLOW)
Date: October 16, 2020

Summary

A complainant alleged that Health Canada had failed to identify all records responsive to a request under the Access to Information Act and ought to have also produced an index of all responsive records. The investigation showed that Health Canada had conducted a reasonable search for responsive records and there was no evidence of missing records. It was also determined that Health Canada’s refusal to provide the complainant with an index of all responsive records did not contravene its duty to assist obligations under subsection 4(2.1), as the creation of an index, with respect to this particular request, would have been unreasonable. The complaint is not well-founded.

Complaint

The complaint alleged Health Canada had failed to identify all records responsive to a request made under the Access to Information Act. The complaint also alleged Health Canada ought to have provided an index of the responsive records.

Investigation

Reasonable search

When responding to an access request under the Act, a government institution is required to undertake a reasonable search for responsive records.

Upon receiving the access request, Health Canada tasked the department’s Proprietary and Scientific Information Assessment (PSIA) division to identify and retrieve responsive records. The PSIA was properly identified as the division within Health Canada from which responsive records would be found. There was no reasonable basis for Health Canada’s Access to Information (ATI) officials to believe that additional responsive records would be located elsewhere within the department.

Health Canada’s processing file showed that PSIA conducted a thorough search for records containing words and subject matters identified within the access request. PSIA initially estimated that there would be approximately 36,250 pages of records responsive to the request. Further to subsequent communications between complainant and Health Canada’s ATI officials, the complainant clarified and narrowed the scope of the access request (the “amended request”).

A total of 1,434 pages of responsive records were ultimately determined to be responsive to the amended request. There is no evidence upon which the OIC could reasonably conclude that responsive records were omitted from those identified in response to that request.

The complainant suggested that “…missing records appear evident in the records received even with 90% redacted….” When asked to specify the basis for the belief that additional records ought to have been found, the complainant did not identify any portions of the record that would evidence missing documents. Instead, the complainant asserted that “Each time that I ask Health Canada for more, they provide more records….”

Health Canada’s identification of additional records in response to previous access requests does not establish that the institution failed to conduct a reasonable search or omitted to identify relevant records in response to the present request. The Federal Court has made clear that “…a mere suspicion or belief that a record exists is not, in and of itself, sufficient to establish the premise that further records do exist. Some evidence beyond mere suspicion is required.” (see: Tomar v. Parks Canada Agency, 2018 FC 224; also see Olumide v. Canada (Attorney General), 2016 FC 934).

The OIC is satisfied that Health Canada’s search for responsive records was reasonable and that there is no evidence that Health Canada failed to identify records responsive to the amended request.

The Index of Records

The access request initially submitted to Health Canada was for records, dated February 2003 to March 6, 2015, containing certain words and subject matters.

That being the case, in early communications between the complainant and Health Canada’s ATI officials, the complainant stated “To help specify my request, you should provide me with an appropriate Index of Records that would allow me to do the ‘heavy lifting’ of deciding what types of records would be responsive to my request”. The complainant went on to expressly ask that such an index be created, indicating that without this index he would be unable to narrow Health Canada’s search for the records that he was interested in receiving.

Subsection 4(2.1) of the Act requires that “The head of a government institution ….make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely and, subject to the regulations provide timely access to the record in the format requested.”

There is little doubt that the creation of an Index of Records may well have assisted the complainant identify records of interest held by the department. However, whether or not Health Canada was obligated to create such an Index depends on whether, in the circumstances, doing so would have exceeded Health Canada’s obligation to make every reasonable effort to assist the requester in connection with the request.

The complainant maintained that Indexes of Records have been used by the Archives of Ontario and Archives of Alberta and are “an industry standard among Provincial and international agencies”. To this, the complainant added that Health Canada had previously provided an Index of Records through Vanessa’s Law, suggesting that Health Canada could have likewise created such an index to assist with his access request.

The OIC recognizes that Indexes of Records (sometimes referred to as “Vaughn Indexes”), are useful procedural tools. Such indexes are part of the discovery procedure developed in litigation under the United States (federal) Freedom of Information Act, and have been encouraged in certain contexts by some provincial Information and Privacy Commissioners. Notwithstanding their usefulness, the requirement that an institution create such an index under the Act is contingent on whether the efforts needed to create such an index are reasonable in the circumstances.

In the present instance, the creation of an Index of Records would have exceeded the reasonable efforts required of Health Canada pursuant to subsection 4(2.1). Software used by Health Canada does not facilitate the creation of lists of records detailing descriptions, dates or authors of records. The Index of Records, therefore would have needed to be manually produced. That list, in turn, would have then needed to be reviewed to ensure that any descriptions listed did not fall within the scope of an exemption to the right of access under the Act. Given the volume of records at issue (particularly the initial estimate), and the time needed to create and review any index generated, the creation of an index would have exceeded the reasonable efforts required to have been made.

The OIC is satisfied that Health Canada was not required to create an index pursuant to subsection 4(2.1). Consequently, Health Canada did not fail to abide by its duty to assist when refusing to create an Index of Records.

Results

The complaint is not well founded.

Section 41 of the Act provides a right to the complainant who receives this report 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.

Rachel Laurin
Director of Investigations
Economic, Social and Cultural Affairs

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