5820-01920 — Public Services and Procurement Canada
The complainant alleged that Public Services and Procurement Canada (PSPC) failed to conduct a reasonable search for records related to a Designated Substances Report for the Health Protection Building. PSPC provided some records but withheld others, claiming they were not under its control as they were held by a subcontractor, BGIS. The Information Commissioner investigated whether the records were under PSPC's control and whether a reasonable search was conducted. The Commissioner found that despite not having physical possession, the records were under PSPC's control due to the contractual relationship with BGIS, which included a legally enforceable right to obtain such documents. Consequently, the Commissioner concluded that PSPC had not conducted a reasonable search for these controlled records. The complaint was found to be well founded, and PSPC was ordered to retrieve and process the records. However, PSPC notified the Commissioner that it would not implement the order.
- 1Whether records not in physical possession of the institution are 'under the control' of the institution for the purposes of the Access to Information Act
- 2Whether the contents of the record relate to an institutional matter
- 3Whether the institution could reasonably expect to obtain a copy of the record upon request
- 4Whether the legal relationship between the institution and the record holder indicates control
- 5Whether the institution conducted a reasonable search for records under its control
- Control of records: Records deemed under institution's control
- Adequacy of search: Search found unreasonable
- Complaint outcome: Complaint well founded
- Order to institution: Institution ordered to retrieve and process records
- Implementation of order: Institution refused to implement order
Complaint well founded — disclosure ordered, but institution refused to comply
The Information Commissioner determined that the records, though not in PSPC's physical possession, were under its control due to the strong contractual relationship with BGIS, which provided PSPC with a legally enforceable right to obtain them. Therefore, PSPC's failure to retrieve and process these records meant it had not conducted a reasonable search.
The Minister of Public Services and Procurement Canada was ordered to retrieve all identified records from BGIS (or DST Engineers Inc.) and respond to the access request by processing them in accordance with the Act, giving access unless specific provisions apply.
- s.30(1)(a) ATIA
- s.36.1(1) ATIA
- s.37(4) ATIA
- s.41(2) ATIA
- s.43 ATIA
This summary is for informational purposes only and does not constitute legal advice.
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