Canadian Security Intelligence Service (Re), 2022 OIC 37

Date: 2022-07-28
OIC file number: 3215-00664
Institution file number: 117-2014-489

Summary

The complainant alleged that the Canadian Security Intelligence Service (CSIS) did not conduct a reasonable search under the Access to Information Act when responding to an access request seeking records related to pay equity for unionized CSIS employees. The complaint falls within paragraph 30(1)(a) of the Act.

Despite the involvement of its Departmental Legal Services Unit (DLSU) in the pay equity issue, CSIS refused to task this area, stating that DLSU records form part of the Department of Justice’s information holdings and are therefore not under CSIS’ control.

The Office of the Information Commissioner found that records responsive to the request might be under the control of CSIS and/or both CSIS and Justice. CSIS, in refusing to task, retrieve and review requested records from its DLSU to determine the issue of control, failed to conduct a reasonable search.

The Information Commissioner recommended that CSIS retrieve and review responsive records from its DLSU, and issue a new response.

CSIS gave notice to the Commissioner it would not implement the recommendations.

The complaint is well founded.

Complaint

[1]      The complainant alleged that the Canadian Security Intelligence Service (CSIS) did not conduct a reasonable search under the Access to Information Act when responding to an access request seeking copies of all communications between CSIS and all other Canadian Federal Government Departments and Agencies concerning pay equity for unionized CSIS employees.

[2]      The Office of the Information Commissioner (OIC) separately investigated the complainant’s allegations that CSIS improperly withheld information based on exemptions to the right of access in file 3215-00663, which was concluded as resolved.

Investigation

[3]      On April 1st, 2019 and June 3rd, 2021, CSIS disclosed additional records, which it had not provided to the complainant when it responded to the access request.

[4]      The complainant informed the OIC that they were not satisfied with the supplementary disclosure.

Reasonable search

[5]      CSIS was required to conduct a reasonable search for records that fall within the scope of  the access request – 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.

[6]      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.

[7]      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. Institutions must however be able to show that they took reasonable steps to identify and locate responsive records.

Did the institution conduct a reasonable search for records?

[8]      CSIS, when initially responding to the request, tasked its Human Resource Compensation Branch, to search for and retrieve responsive records. This search culminated in a total of 30 pages being identified as responsive. These records, in turn, were disclosed in severed form.

[9]      During the investigation, CSIS conducted a second search for records, which resulted in the retrieval of an additional four-page document responsive to the request. That document was also processed and partially disclosed to the complainant. Given that the pay equity matter, for which ‘’…all communications between CSIS and all other Canadian Federal Government and Departments and Agencies’’ have been sought, commenced in 2008, the OIC further questioned why additional records had not been found. In response, CSIS conceded that additional records fitting the description of the records sought might be located within the offices of lawyers from CSIS’s Departmental Legal Services Unit (DLSU) – given their involvement in the pay equity complaint. However, CSIS maintained that DLSU records form part of the Department of Justice’s (Justice’s) information holdings. In CSIS’ view, they are therefore under the control of Justice, a separate government institution with its own Access to Information and Privacy (ATIP) Office, as opposed to being under the control of CSIS.

[10]    According to CSIS, in these circumstances, it would be inappropriate for CSIS to even request that such records be provided to its ATIP office because:

1. Justice would not be expected to grant such a request;
2. CSIS does not have a ‘’collection authority’’ to collect information not related to its mandate;
3. If the records were to involve any personal information and CSIS were to collect this information for matters unrelated to CSIS’s mandate, this would be contrary to the Privacy Act, constitute an improper collection of personal information, and result in one or more privacy breaches.

[11]    Having considered CSIS’s representations, and for reasons set out below, I am of the view that CSIS has failed to establish that it conducted a reasonable search.

[12]    CSIS’s position that it is not appropriate and/or it would be unreasonable to task its DLSU counsel is premised on CSIS’s conclusion that records physically located with its DLSU counsel cannot be under CSIS’s control. It is my view that this conclusion is premature and cannot reasonably be made without additional inquiry by CSIS. Until the records relating to CSIS matters are retrieved and reviewed by CSIS’s delegated officials, a determination of control cannot be made. Only those officials with the requisite delegated authority can make determinations of control; thus, the Office of Primary Interest (OPI), namely CSIS’s DLSU, who in this case is not imbued with the necessary authority, cannot make a determination regarding control.

[13]    While the Act does not define ‘’under the control’’, the Courts have affirmed that this phrase should be interpreted broadly and liberally in order to provide a meaningful right of access to government information.

[14]    In its representations, CSIS focuses on its lack of physical possession of the records. However, physical possession of a record is not determinative of control. Even without physical possession, a government institution may still control a record if the record relates to a departmental matter and a ‘’senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record’’ (Canada Information Commissioner) v. Canada (Minister of National Defence) et al., 2011 SCC 25 (the PM’s Agenda Case)). Control must be assessed based on a consideration of all relevant factors, including: whether or not the contents of the records related to a CSIS matter; if the records were relied upon by CSIS when preparing CSIS records; if CSIS has a legally enforceable right of access to the records; as well as whether or not the records are integrated with other records held by CSIS and, if so, to what extent.

[15]    Furthermore, control can be ‘’partial’’ as well as ‘’full’’, ‘’transient’’ as well as ‘’lasting’’, and ‘’de jure’’ as well as ‘’de facto’’. (PM’s Agenda case) Nowhere within this jurisprudence is it suggested that an institution must have exclusive control in order for an institution to have ‘’control’’, within the broad meaning ascribed to this term.

[16]    In the present instance, the request is specifically for ‘’communications between CSIS and all other Canadian Federal Government Departments and Agencies concerning pay equity for unionized CSIS employees’’. Although some of these records may well be within the exclusive physical possession of CSIS’s DLSU, such records necessarily relate to CSIS’s departmental matters. They might equally be reasonably expected to be capable of being obtained by ‘’a senior official’’ of CSIS, based on all relevant factors, including the substance of the records and the lawyer-client relationship between DLSU and CSIS, as client. In this regard, I note that, generally, a client has a strong ownership interest in much of their lawyer’s work. For example, in Wadsworth v. Elkin Injury Law, 2008, CanLII 21907 (ON SC), it it is stated at paragraph 17: ‘’it is well established that the vast majority of the documents contained in a solicitor’s file, including any drafts, letters, pleadings and notes, are the property of the client.’’

[17]    Therefore, one would reasonably expect that records fitting within the scope of the request, but physically located in the exclusive confines of the offices of CSIS’s DLSU, might well be under the control of CSIS and/or both CSIS and Justice, upon considering all relevant factors.

[18]    The situation, therefore, differs markedly from that before the Court in Yeager v. Canada (Minister of Public Safety and Emergency Preparedness), 2019 FCA 98 (Yeager), in which records requested of one institution were unrelated to that institution’s mandate and were not within that institution’s possession. In that case, the Court concluded that the fact that a single Minister was the head of two separate government institutions was not sufficient to extend control by one institution over records under the control of the other.

[19]    In the present instance, clearly Justice and CSIS are headed by different Ministers. However, the records at issue in the present instance, unlike in Yeager, invariably relate to the mandate of the institution in receipt of the request. In addition, given the solicitor-client relationship between the institution in receipt of the request and the institution with physical possession of the document sought, it is difficult to envision why a senior official from the former would not reasonably be expected to be able to obtain a copy on request.

[20]    In light of the above, and bearing in mind the subject matter of the request, it is far from clear that requested records located within CSIS’s DLSU, would be beyond the control of CSIS. Therefore, in order to determine whether such records are under CSIS’s control, it ought reasonably to have sought and retrieved those records from its DLSU in order to assess the issue of control based on a consideration of all relevant factors. This, CSIS has not done.

[21]    I conclude that CSIS, in refusing to task, retrieve and review requested records from its DLSU for the purpose of ascertaining the issue of control, failed to conduct a reasonable search for responsive records. CSIS’s search remains incomplete until the DLSU is properly tasked with the request.

Result

[22]    The complaint is well founded.

Recommendations

I recommend that the Minister of Public Safety and Emergency Preparedness:

1. Retrieve from the DLSU all the records responsive to the access request;
2. Review any records retrieved in order to determine whether they fall under CSIS’s control;
3. Provide a new response to the complainant and give access to any additional responsive records, unless access to them, or part of them, may be refused under a specific provision(s) of Part 1 of the Act. When this is the case, name the provision(s);
4. If no additional responsive records are identified or located during the search, indicate in the new response how and where the search was conducted and why no such records were identified or located.

The Minister of Public Safety and Emergency Preparedness must abide by the terms of subsection 37(4) when disclosing any records in response to my recommendations.

On June 17, 2022, I issued my initial report to the Minister of Public Safety and Emergency Preparedness setting out my recommendations.

On July 15, 2022, CSIS’s coordinator gave me notice that the Minister of Public Safety and Emergency Preparedness would not be implementing my recommendations and that CSIS maintains its original position in regards to the control of records.

When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right 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.