Implementation Report No. 115 - Access to Records in a Minister's Office - Prime Minister's Agenda Case

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”) ^{Footnote 1}.

1) The SCC Decision in the Prime Minister’s Agenda Case

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.

Meaning of “Under Control”

The SCC dismissed the Information Commissioner’s appeals. In so doing, the SCC made a number of important findings as set out below.       

• A Minister’s office is not in and of itself a government institution, nor is it part of a government institution for purposes of the ATIA. Therefore, a Minister’s office is not subject to the ATIA. 
• Under the ATIA, requesters have a right to access records “under the control of a government institution.” “Control” is not defined in the ATIA. The majority of the SCC found that to give a meaningful right of access to government information, the notion of “control” must be broadly and liberally interpreted, although “it cannot be stretched beyond reason.” ^{Footnote 2}
• Although physical control over a record will play a leading role in deciding control, it is not determinative of the issue: there may be other factors to consider. 
• With respect to the question before it, the SCC held that a record found exclusively in a Minister’s office could be deemed to be under the control of a government institution if a two-step test is satisfied. The two steps are as follows:
  
  
  1. Do the contents of the record relate to a departmental matter?
  2. If so, could a senior official of the government institution reasonably expect to obtain a copy of the record upon request?

• If a record meets the first step of the control test, one must go to the second step. This second step is an objective one to be assessed on a review of all relevant factors including the following:
  
  
  • the substantive content of the record;
  • the circumstances in which it was created; and
  • the legal relationship between the government institution and the record holder.
• If the two-step control test set out by the SCC is satisfied, then the record is deemed to be under the institution’s control and must be disclosed unless it is subject to any specific statutory exemption under the ATIA.

Powers of the Information Commissioner

• The Information Commissioner does not have the power to enter a Minister’s office; however, the Commissioner does have significant powers of investigation for those records that fall under the control of the institution pursuant to the two-part control test set out above. Those powers include the authority to:
  
  
  • summon the appearance of witnesses, including ministers and exempt staff;
  • compel those persons to give evidence under oath; and
  • compel them to produce such documents and things as the Commissioner deems requisite to the full investigation of the complaint.   

2) Procedures on How to Task a Minister’s Office With Searching for Records

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 to Task a Minister’s Office With a Search

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:

1. Where there is evidence from a search of departmental records that a document was sent to the Minister’s office but a copy of it no longer exists in the department’s own files.
2. Where there is a request for expense records submitted for a trip taken by the Minister where he or she has asked to be reimbursed for the expenses but has not provided the itemized bills to the department.

How to Task a Minister’s Office

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.

3) Procedures in Cases Where Records in a Minister’s Office Are Requested Pursuant to an Investigation 

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.

Mimi Lepage,
Executive Director,
Information and Privacy Policy Division
Chief Information Officer Branch

Enquiries

If you have any questions concerning this IR, please contact us at ippd-dpiprp@tbs-sct.gc.ca.