Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction confined to whether access to specific records was properly denied under the Access to Information Act.

• Issue of whether records held by former contractors are under the control of Natural Resources Canada for access purposes.

• Examination of the adequacy and reasonableness of the searches conducted by Natural Resources Canada for the requested records.

• Additional challenges regarding confidentiality, retention, and redactions found to be outside the scope of this application.

• No evidence presented that responsive records existed or were improperly withheld by Natural Resources Canada.

• No costs or damages were awarded as none were requested.

Facts and outcome of the case

Background and factual context

This case is an application brought by Richard R. Govier against Natural Resources Canada (NRCan) pursuant to subsection 41(1) of the Access to Information Act (ATIA). Mr. Govier made two access to information requests to NRCan, seeking the dates and content of communications between the Ministry of Natural Resources and both the Major Projects Management Office (West) (MPMOW) and the Ministerial Review Panel for the Trans Mountain Pipeline Expansion (TMX) project. The requests focused on how presentations and emails received during public meetings on the TMX were handled.

The Panel was appointed in May 2016 to assist with the TMX project and report to the federal government on public input missing from the National Energy Board’s review. The Panel was supported by three contractors, all of whom had contracts with NRCan that expired in 2016 after the Panel published its final report on November 1, 2016. MPMOW was the project authority for the Panel’s work, and all dealings with NRCan went through MPMOW. In October 2017, MPMOW was renamed Indigenous Partnership Office-West, and in March 2022, it was combined with the Indigenous Affairs and Reconciliation sector to form the Nòkwewashk sector.

NRCan responded to Mr. Govier’s requests by providing documents from a previous 2016 ATIP request and conducted further searches. Mr. Govier confirmed he wanted to proceed with his requests, specifically seeking records discussing what should happen with the presentations from the town halls and emails received by MPMO. NRCan clarified that records held by the Ministerial Panel were not under its control and that the Terms of Reference for the Panel did not address retention of records.

Mr. Govier filed complaints with the Information Commissioner, who found that NRCan had improperly determined that parts of the records related to the Panel were not under its control, but concluded that NRCan had conducted a reasonable search and was unable to locate them.

Legal issues and analysis

The court identified two issues for determination: whether NRCan had control over the requested records and whether NRCan conducted a reasonable search. The court stated that its role under section 41 of the ATIA is narrowly circumscribed and limited to evaluating whether access to a specific record that was denied should be allowed.

Applying the Supreme Court’s two-step test for control under the ATIA, the court found that while the requested records related to a departmental matter, there was no evidence that such records still existed or were under NRCan’s control at the time of the request in 2023. The contracts with the former contractors expired in 2016, and there were no ongoing obligations for those individuals to retain or provide records to NRCan after the end of their contracts.

Regarding the adequacy of the search, the court reviewed the steps taken by NRCan, including searches of the Nòkwewashk sector’s electronic document repository, the Communications & Portfolio sector, and prior access requests. The court found that NRCan’s efforts were reasonable and that there was no evidence of additional existing records that were improperly withheld. The applicant could not point to any specific documents that NRCan refused to produce, and the court emphasized that mere suspicion is not sufficient to require a further search.

Outcome

The court dismissed Mr. Govier’s application. There was no request for costs, and none were awarded. The respondent, Natural Resources Canada, was the prevailing party.