Requirements for transfer of request for access may be engaged regardless of whether government institution has control of record

Federal appeal | Privacy and Freedom of Information | Freedom of information | Federal legislation

Applicant requested certain documents from Access to Information Division (“ATIP Division”) of Department of Public Safety and Emergency Preparedness. ATIP Division informed applicant that it was determined that there were no relevant records in department. Applicant filed complaint with Office of Information Commissioner (OIC). OIC informed applicant that his complaint was not substantiated and that department did not possess records responsive to his request. OIC indicated that during investigation, it had become apparent that Correctional Services Canada (CSC) might possess documents responsive to applicant's request, and that it was open to him to file separate request with CSC. Applicant's application for judicial review was dismissed. Applicant appealed. Appeal dismissed. Department could not be held to have control of requested records on basis that these records might exist at CSC. Section 8 of Access to Information Act sets forth requirements for transferring request for access to record under Act from one government institution to another. Requirements for transfer of request for access as set forth in s. 8 of Act may be engaged regardless of whether or not government institution has control of record. Decision of department not to transfer applicant's request was justified on reasonableness standard of review. Subsection 4(2.1) of Act came into force several months after applicant's request was refused, and had no application in this appeal.

Yeager v. Canada (Public Safety and Emergency Preparedness) (2019), 2019 CarswellNat 1329, 2019 FCA 98, Wyman W. Webb J.A., Richard Boivin J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2017), 2017 CarswellNat 6056, 2017 CarswellNat 958, 2017 FC 330, 2017 CF 330, E. Susan Elliott J. (F.C.).

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