Conducting a reasonable search for records
- The duty to conduct a “reasonable search”
- What is a “record”?
- Meaning of “reasonable search”
- What constitutes sufficient evidence of a reasonable search
- What do institutions need to do after conducting a reasonable search?
- Commissioner’s decisions
The duty to conduct a “reasonable search”
Institutions are required to conduct a “reasonable search” for records in response to access requests.
This obligation is not explicitly set out in any one provision of the Access to Information Act. Instead, the obligation stems from a number of provisions, most notably the following:
Subject to this Part, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
Section 2 of Extension Order, No. 1, extends the right of access to all individuals and all corporations present in Canada.
The head of a government institution shall, without regard to the identity of a person making a request for access to a record under the control of the 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.
A request for access to a record under this Part shall be made in writing to the government institution that has control of the record and shall provide sufficient detail to enable an experienced employee of the institution to identify the record with a reasonable effort.
What is a “record”?
A “record” is defined by section 3 of the Act as “any documentary material, regardless of medium or form.” It could be documents, letters, spread-sheets, emails, photos, videos, text messages, etc.
If a record requested does not exist, but the institution has under its control the raw information that is requested, and this information can be produced from a machine readable record using computer hardware and software and technical expertise normally used by the institution, it is deemed to be a record under the Act (subsection 4(3))
“Records” refers to the package of documentary material that would be responsive to the access request that are under the institution’s control (see the Information Commissioner’s guidance on Control of records for more information on control).
“Responsive” means relevant. It describes any documentary material that is reasonably related to the access request.
Meaning of “reasonable search”
Institutions are required to conduct a reasonable search for records that fall within the scope of access requests—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.
If it would unreasonably interfere with operations, an institution does not have to produce a record that does not exist from a machine readable record (section 3, Access to Information Regulations.
A reasonable search involves a level of effort that would be expected of any fair, sensible person tasked with searching for responsive records where they are likely to be stored.
This search does not have to be perfect. An institution is therefore not required to prove with absolute certainty that further records do not exist. The institution must however be able to show that it took reasonable steps to identify and locate responsive records.
Institutions are expected to document the efforts they made to search for, identify and retrieve responsive records.
What constitutes sufficient evidence of a reasonable search
The onus is on institutions to provide sufficient evidence to show that they conducted a reasonable search for responsive records. Relevant considerations include the following:
- the specific steps the institution took to identify and locate all the responsive records, including keywords used to locate records and the repositories searched (and how the institution decided they were the correct ones in both instances);
- the scope of the search (e.g. physical locations, program areas, specific databases, off-site storage areas searched);
- the retention and disposition schedules that apply to the records;
- who did the search; and
- why the institution believes no responsive records exist or why no more records exist beyond what they found.
What do institutions need to do after conducting a reasonable search?
What constitutes a response to an access request?
The response to the access request must be in writing and indicate whether the institution is giving access to any or part of the requested records.
- When the response indicates that the institution has given access to the records or part of them, the institution must provide access to those records.
- When the response indicates that the institution has denied access to the records or part of them, the institution must explain that the records do not exist or that the institution has refused to give access to them, or part of them, under a specific provision of Part 1 of the Act, which the institution must name.
In specific circumstances, the institution may, in its response, refuse to confirm or deny whether records exist under subsection 10(2).
Once institutions have conducted a reasonable search, they must provide a response to the access request.
When the search identified records responsive to the access request, institutions must give access to these records, unless access to them, or to part of them, may be refused under a specific provision(s) of Part 1 of the Act.
If responsive records are not identified or located during the search, as a best practice, institutions should indicate in their response how and where they conducted the search and why they did not identify or locate any responsive records.
Consult the Commissioner’s decisions on the OIC website.