Institutions must apply two-part test for records in ministers’ offices

Complaint: Fisheries and Oceans Canada (DFO) did not ask the Minister’s office for records in response to a request for the emails of a number of individuals, including some exempt staff. Instead, it asked the requester to exclude the exempt staff from the request. It then put the request on hold when it did not hear back from the requester about this.

InvestigationDFO told the OIC that, because the exempt staff were known not to be employees, the request could not be processed as worded, since coverage of the Act does not extend to ministers’ offices.

Outcome: The institution agreed to ask the Minister’s office to look for records, and approximately 1,100 pages were identified as falling within the scope of the request.

Information Commissioner’s position

  • The correct test is not whether a minister’s office or its staff are covered under the Act. The Supreme Court of Canada set out a two-part test in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 for instances in which records responsive to a request may be located in a minister’s office.
  • Institutions must ask two questions when processing requests for such records: Does the record relate to a departmental matter? If so, and based on all relevant factors, could a senior official of the institution reasonably expect to be able to obtain a copy of the record upon request? (Relevant factors include the substantive content of the record, the circumstances in which the record was created, and the legal relationship between the institution and the record holder.)
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