April 22, 2013
To: Access to Information and Privacy Coordinators
The purpose of this Implementation Report is to identify under what circumstances Access to Information and Privacy (ATIP) offices are to task a Minister’s office with searches for relevant departmental records pursuant to an Access to Information Act (ATIA) request or a request under the Privacy Act (PA). The following procedures reflect the Supreme Court of Canada’s (SCC’s) decision on the meaning of “control” in Canada (Information Commissioner) v. Canada (Minister of National Defence (commonly referred to as the “Prime Minister’s Agenda Case”) See footnote .
On May 13, 2011, the SCC issued its decision in respect of four applications for judicial review brought by the Information Commissioner of Canada relating to refusals to disclose information under the ATIA. The four cases are commonly referred to as the “Prime Minister’s Agenda Case”. The primary issue addressed by the SCC was whether records found in the offices of the Prime Minister and of the Ministers of National Defence and Transport were under the control of the respective government institutions.
The SCC dismissed the Information Commissioner’s appeals. In so doing, the SCC made a number of important findings as set out below.
The procedures set out below reflect the two-step approach set out by the SCC for assessing whether a record located in a Minister’s office is deemed to be under the control of the institution.
When receiving an access to information request, the Minister’s delegate, usually the ATIP Coordinator, must then consider whether there are reasonable grounds to believe (that is, there is a serious possibility based on credible evidence) that there exist relevant records in the Minister’s office that would be considered to be under the institution’s control, as set out in the two-step control test discussed above. Such evidence may come from, for example, records already obtained from the institution.
Two clear examples where it would be likely that the Minister’s delegate would have reasonable grounds to ask the Minister’s office to search for records are the following:
In cases where the Minister’s delegate has determined that there are reasonable grounds to believe that there exist relevant records in the Minister’s office that would be considered to be under the institution’s control, the ATIP Office must ask the Minister’s office to search for relevant records. The search for responsive records does not need to be conducted personally by the Minister. Although a member of the Minister’s exempt staff may conduct the search, he or she cannot decide whether the records are relevant and under the control of the institution. The Minister or the Minister’s delegate must make the final determination.
The fact that a Minister's delegate is reviewing records in a Minister's office would not render them under the control of the department. The delegate should physically go to the Minister's office to review the records.
In those cases where records are located in the Minister’s office that are relevant to the access request and meet the two-step control test, the Minister’s office should remit these records to the ATIP office to be administered as part of the ATIA or PA request, and to be disclosed subject to any applicable statutory exemptions under either the ATIA or the PA.
If no records are provided by the Minister’s office in response to the search request within the established time frame, the ATIP office must seek written confirmation from the Minister’s office that the search has been conducted and that no records have been found that are deemed to be under the institution’s control.
A requester may file a complaint with the Office of the Information Commissioner (OIC) that, for example, an ATIP office has not included records that the requester claims are located physically in a Minister’s office. The OIC may, in the course of its investigation, ask to see the records in a Minister’s office to determine whether the records are under the control of the government institution. Should an ATIP office receive such a request from the OIC, it should tell the OIC to communicate directly with the Minister or the Minister’s Office.
Chief Information Officer Branch
If you have any questions concerning this IR, please contact us at Contact TBS IPP Division by email: email@example.com.
Return to footnote reference  Ibid p. 20 paragraph 48.