avd ‘Travaux publics at Public Works and [MINISTERS REGISTRY Servigos gouvernementaux Government Services Canada Canada To Sous-ministre Deputy Minister NOV 10 2018 Sous-recoveur général Deputy Recsiver Generat eaten du Canada for Canade Fiene 134316 20000 le number) ‘ADK: Afted Maclecs NOV 07 20% ‘Security: Normal MEMORANDUM TO THE MINISTER CoO FOR INFORMATION SUBJECT: RESPONSE TO THE ATI COMMISSIONER'S RECOMMENDATIONS AFTER AN INVESTIGATION INTO A COMPLAINT CONCERNING DOCUMENTS ‘UNDER THE CONTROL’ OF PWGSC SUMMARY As a result of her investigation into a complaint with regard to documents ‘under the contro!’ of the Department, the Access to Information Commissioner wrote to you on April 21, 2014 sending you her report which contained four recommendations. | replied to the Commissioner on May 12, 2014, as the matters she raised are administrative, and indicated | would | provide a more fulsome reply after undertaking a review (Annex A). ‘The Department undertook a comprehensive review of its policies and practices with regard to documents under its control, including those created and held by third parties (mainly suppliers). My more fulsome reply to the ‘Commissioner provides her the results of this review, namely a department definition of documents considered to be under our control, and how this will be determined on a case-by-case basis using an appropriate test to determine ‘control’. My reply also indicates that we will be updating our various AT! policy instruments to reflect this definition, and that we will be producing an information management directive to support employees in the | real property branch | Attached is my reply to the Commissioner (Annex 8). | have also attached, for your information, the results of the review we undertook as well as our action plan and timelines (Annex C). beak dq. ora Enclosures. Canada ‘000034fe eat ble Wors ana rementaux Government Services OPY Canad ¢ Soueminse Deputy Met Sousecavourgénérsi Deputy Receiver Geceral au Caneca for Conan Ms. Suzanne Legault Information Commissioner of Canada 412 Kent Street Ottawa, Ontario KAA 1H3, BA 12201 1am writing in response to your letter of April 24, 2014 addressed to the Honourable Diane Finley regarding your conclusions and recommendations following your investigation of Access to Information request 2012-00079, ‘As these matters relate to departmental policies and practices, including contractual arrangements with third party service providers, | will be undertaking a review of current practices and obligations. Upon completion of this review, | will provide a substantive reply to your recommendations, ‘Thank you for taking the time to bring this matter to the Department's attention. Yours sincerely, Michelle d’Auray c.c.: The Honourable Diane Finley, Minister of Public Works and Government Services _ Canadi 000035Crpmiasaln — lfoemgten Gieertalee Beth AVenede EROTECTED 5 ABAD 4204 ‘The Honourable Diane Finley Minister of Public Works and Government Services Canada, 11 Laurier Strect, Phase {11, Place du Portage Gatineau QC K1A 083 Subject: Our files: 9212-00465 Institution's fies: A-2012-00079 Dest Minister: I write to you pureuant to subsection 97(1) of the Access to Information Act (the Act) to xeport the zesulte of my investigation into a coniplelnt made ageinst Public Works and Government Services Canada (PWOSC), On April 7, 2012, PWGSC received the complainant's requiest fori A.copy of all documents dnd communtcations relatad to the work Capital ‘Aifflow Ltd. had performed at 875 Heron Rd., Ottawa inthe period of Noveniber and December 2007, This would inchide tendering documents, consultant reports and all other reports related. On July 5, 2012, PWGSC provided the complainant with a response to his request, disclosing tet pages of records. On July 18, 2012, we received the . complainant's letter of complaint which alleged that more records should exist, On July 20, 2012, PWGSC sent a second response in which it disclosed, in part, | a two-page Capital Airflow Ltd. (Capital) letter dated November 28, 2007, Accordingly, PWGSC provided twelve pages of records to the complainant prior to the initiation of our investigation, On duly 27, 2012, we provided PWOSC with our Summaty of Complaint and Notice of Intent to Investigate. ‘000036PROXECTED B Page 2 Background ‘This complaint concerns records relating to work conducted in relation to e health and safety complaint made to the Canada Revenue Agency about the air quality at the Taxation Data Centre at 875 Heron Road, The operations and maintenance of 875 Heron Road was contracted out to SNC Layalin Operations & Maintenance Inc. (SNC) by PWGSC as pert of the Alternative Forms of Delivery (AFD) service delivery model implemented by PWGSC in 1998, SNC subcontracted the air quelity testing work, required by the health and safety complaint, to Capital in the fall of 2007. 1a November and December 2007 Capital provided a number of dectments ts SNC in relation to the air quality testing it conducted, In April 2008, Capital provided farther documents to SNC regarding the testing carried out in those same two months When it received the access request, PWOSC ATIP tasked the Real Property Branch (RPB) which in turn obtained 12 pages from SNC. These 12 pages were. i processed and provided to the requester, As a result of my investigation inte the requester'e missing zecords complaint, SNC provided PWGSC with an additional 27 pages of records.1 Thus by December 18, 2012, PWGSC had obtained a total of 39 pages of responsive records from SNC. ‘Two months latet, on Februsy 19, 2013, PWGSC provided the complainant with 25 of the additional 27 pages retrieved from SNC. The two pages that were not relcased consioted of letter from Capital to SNC dated April 5, 2008 {the April B letter), Taye the complainant nd received 97 of the 38 pages resporisive to the vequest: PWOSC-ATIP meintained that the SNC records were not under the cottrol of PWGSC. It slated that it was releasing the additional 25 pages of records obtained as a result of my investigation to the requester as part of its duty to aseist. My office did not agree with this position since the records were requested end obtained from SNC. ‘The former Assistant Deputy Minister, Caroline Webcr inct with the Assistant Commissioner Emily MoCarthy on May 21, 2013. At thatmeeting, ADM Weber explained PWGSC's position on the issue of control. The Assistant Commissioner stated that the jurisprudence has established that control is not limited to ' My inveatigator was informed that PWGSC's failure to retrieve all the relevant records In the Gat instance wae due to an information manayentent problem at SNC.vhich it claims thas subsequently been rectified 000037EROTECTED y Page 3 physical possession of records but extends to records which @ government institution hes the right to request and receive, ‘The Assistant Commissioner offered ADM Weber an opportunity to provide further written representations on the control issce pursuant to paragraph 35(2}(b) of the Act, In response to the request for zepresentations, ADM Alfred MacLeod advised, by letter dated August 23, 2013, that PWGSC “contends that the records gathered under Request A-2012-00079, including all the additional recocds sent to the Office of the Information Commissioner in the course of its investigation, ere under PWGSC's control as they have been released to the requestor." ‘The letter also noted that: “Cding forward, files will be evaluated on a case by case basis to determine the control issue. This will be coupled with training and awarences sessions regarding the proper handling of dociments (information lifecycle) to eneure compliance with records management policies.” However, at this point, PWGSC had etill not processed and released the two-pags ‘April 8, 2008 letter which SNC hed provided to the RPB in December 2012, Despite a number of requests to do 80 by my officials, senlor officials in PWGSC ATIP refused to release the two-page April 8, 2008 letter olelming that ATIP did not have a copy of this record, Jn her email response of October 16, 2018, to the investigator's enquiry, Julie Lafrance, A/Director, ATIP, advised that the letter of April 8, 2008 *is not Under tho control of PWGSC, as it wes not provided tothe institution, The requirements pursuant fo section 4(2.1) do not include providing records that are not under the control of the institittion.” ‘The mall conchided "that SNC Lavalin O&M is responsible for maintaining such records.” We do not retain corporate responsibility for SNC Lavelin.” This position was previously confirmed by Penny Levesque, Director Generel, Corporate Services, in an email to the investigator on October 7, 2013, in response to a request for more detailed representations regarding PWGSC's position on the control of contractors! records. . (On December 6, 201, my Assistant Commissioner spoke to ADM McLeod about the April 8, 2008 letter which PWGSC maintained was not under its control, She advieed that it wae our view that the letter was under PWGSC's control and should be released to'the requester, During that conversation it was also noted that a section 37 letter would likely be sent to the Minister about the issue of setrieval and control of contractors’ records even if the April 8, 2008 letter was released. More than a year after it had first received the April 8, 2008 letter from SNC, on Jantiary 13,2014, PWGSC released it to the complainant, 000038PROTECTED Page ¢ 4g indiosted by the Assistant Commissioner to the ADM, | have decided to bring Unis file to your attention since [ am concerned that PWGSC is applying an incorrect interpretation of the concept of control. ‘As you know, section 4 of the Access to Information Act provides requesters with fa “right” of accees to all records under the control of « government institution, Fight hes been characterized es quasi-constinational, and in cortain circumstances, constitutional, While the Act does not define control, in the decision of Canada (information Commissioner) v, Canada (Minister of Nationa! Defence), 2011 SCC 25, a two-step test was applied: first, once it is established that the zecord relates to a departments! mutter, then all relevant factors must be considered in order to determine whether the governnient institution could reasonably expect to obtain a copy upon request. The Court further held: ‘Thase factors include the substantive content of the record, the ‘ circuinstances in whlch it was created, and the legal relationship between the government institution and the record holder. The reasonable expectation test is objective, Ifa senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, subject to any speoific statutory exemption. paras: 28° Information Management Obligations PWGSC is oubject to the Trecsury Board Contracting Policy. ‘The policy describes a number of other goverment policies /administrative practices which muat be observed to sstisly contracting policy regtuirements, in this regerd, Item 12,3 Contract documentation, requires the establishment of procurement files to facilitate management oversight. PWGSC employe various mnechanisms to ensure complisnce with this policy and other requirements regarding service delivery as fellows: L. PWOSC Facility Meintenance Pottey Real Property Services (RPS) must follow the requirements of PWGSC Fecility Maintenance Policy, One of the requirements of the policy, as set out under the Policy Statement, is that RPS “enable eflective decision making by providing necessary and sufficient information on facilities and facility maintenance activities in a timely and effective manner." This is supported by Item 8, Accountability, which requires RPS to “maintain current information required in ‘000038EROTRCTED . Page 5 accordance to applicable laws, codes and regulations.” Lastly, under Item 10. Monitoring, it is specified that RPS “is to monitor compliance with all aspects of this policy.’ The Regional Director General, and the Executive Director must, conduct periodic evaluzation of the state of the effectivences of the facilities maintenance program in support of this policy.” 2, PWESC Contractual Requiraments of Service Providers PWGSC requires suppliers to comply with conditions setout in Client Specific Conditions which apply in addition to all.other contract requirements agreed to betwen the parties. In.the.case of work contracted out for SNCL O&M, SNCL, O&M in turn requires sub-contractors, and its eutb-contractors, to adhere to the seme requirements, Clause 6.0 Confidential Information, references the Act in the context of requiring ell parties to ensure the protection of proprietary informacion. 8, Ottawa Perimoter Portfolio, Contract No, 2P810.034001/003/62, Statement of Work” ‘The following clauses also provide evidence that documents held by contractors are under the control of PWGSC: Clause 2.8.1,17, “The Contractor shell ensiiré the accuracy and completeness of all information and data through quality control end assurance of ell data and shall ensure Bile formats and standards are consistent with PWGSC. standards, where appropriate.” Clause 2,8.1:18, “The Contractor shell store, backup, organise and protect all information with due regard to security and disaster recovery and shall apply and adhere at all times PWOSC security procedures for the protection of sensitive information and assets under ite control.” + ‘Clause 2.8.1.22.: *With respect to PWGSC-prescribed forms, provided to the Contractor by PWGSC in both printed copy and electronic formats, the Contractor shall, in a diligent and timely fasision and in accordance with PWGSC policies, procedures and practices es amended from time to time, unless directed otherwise, complete and submit to PWGSC -using the electronic format: ‘0 Building Performance Reviews, as per the requirements detailed in Sub-section 2.3.1, Building Performance Reviews, electronically, by June 30% of each year, using the following forma, which may be amended by PWGSC from time to time ‘00040‘Treasury Board Secretariat (TDS) ATIA Reference ‘The TBS Policy on Access to Information, April 1, 2008, under item 6.2.9 Contracts and Agreements, requires contracting institutions to establish “meaoures to ensure that the government institution = requirements of the ATIA when contracting with private eeotor organisations..." ‘The TBS Directive on the ATIA, effective January 16, 2012, under section 8, Requirements for Employees of Governmext institutions, {tem 8.1.5 Contracts and Agreements states “Ensuring, if involved in contracting activities, that contracts and agreements do not wealen the right of puxblic access to information,” . The archived Access to Information Guidelines ~ General, Under the Control state: .nRegarding the question of physical possession, a record held by an institution, whether at headquarters, regional, satellite or other office, ( either within or outside Canada, is presumed to be under its control unless theve ts evlcience to the contrary. A record held clsewhere on behalf of an institutlon is also under its controt., _ ‘The TBS Guidance Document: ‘Talking Privacy into Account Before Making Contracting Deciatons*, item 4.1 Establish control, states that: “Ceontracts for the management of government programs and services should include pravisiona to ensure that the government institution maintains control of personel information or other records that are transferred to the contractor and, where appropriate, over information collected, created, obtained, or maintained by the contractor in fulfillment of the contract, Establishing control is necessary to enable the contracting institution te comply with its statutory obligations under the Privacy Act and the Access to Information Act.” inally, the°TBS Implementation Report No.115 - Access to Records in a inister’s Office ~ Prime Minister's Agenda Cese, references the Mey 13, 2011 SCC decision cited above, provides guidance to ATIP officials in the determination of contro! of ministers’ records, which can alse be applied principle te all records requested under the Act. ‘The case law and tae relevant applicable policies and contracte lead to the conclusion that all of the records requested by the compininant were at all times under the control af PWGSC, 00041PROTECTED 3 Page 7 ‘The records wore creatéd as the result of @hcalth and safety complaint made by an employee of CRA at 875 Heron Road, The tests were subcontracted by SNC to Capital, SNC had a contractual right to obtain all of the records produced by Capital in relation to the Leating services performed, PWGSC had ® contractual right to obtain these reaords from SNC. The test to establish control requires that a senior official can rcasonably expect to be entitled to be provided with a copy of e record; it is not limited tb physical control, In responding to my office, PWGSC has articulated a narrow interpretation of “control" which is not supported by the jurisprudence or the eurrounding contracttal and policy documents. This interpretation ceused a lengthy delay in what should have been a simple investigation, When asked to confirm the position PWGSC would take in relation t6 the retrieval of records in future. requests, the ADM informed the Assistant Commissioner thet it would be done on a case-by-case basis but did not speak to the criteria which would be applied, Given the position taleen by your officials, even after ADM McLeod wrote to my office on August 22, 2015, Lam concerned that records held by contractors acting on behalf of PWSC in the context of the AFD initiative in the RPB will not be routinely retrieved and processed by PWGSC ATIP. This would significantly undermine the principles of accouatebility end transparency discussed in the PriceWaterhouseCoopers Forensic Audit of Seventy Transactions under the SNC- Lavalin O&M Contracts, submitted to PWGSC on August 9, 20118. Summary of Finding end Recommendation For the reasona set out sbove, I find that this complaint was well-founded Although the substance of the complaint was resolved when thie Capital April 8, 2008 letter was disclosed, I am concerned about the approach being talon by PWGSC to the retrieval of records held by third party contractual service, providers in the context of the AFD-RPB program. Lam therefore recommending that: 1, PWQSC ensure that ell records under its control, whether or not they are in its physioal possession, are retrieved and processed in response to requests made uncler the Access to Information Act 2, PWGSC draft and implement a clear policy explaining the issue of control and its application to records held by contractors and subcontractors; 3. PWGSC provide training to employees to ensure thet all records under the contro} of POSC are retrieved and processed by PWGSC-ATTP, ° 00042EEQIROTED B Page & 4. PWGSO ensure that all contractors are aware of the requirements of the Act and take steps to manage thelr information holdings sccordingly. In accordance with paragraph 37(J){a), 1 ask that ‘you inform me by May 9, 2014, whether or not you intend to implement my recommendations in this matter. ‘After that date, 1 will report the results of this investigation to the complainant, Should you or your officials wish to discuss any aspect of this matter before that ‘date, please do not hesitate to communicate with Assistant Commissioner Emily McCarthy at 819-994-0008. Yours sincerely, u pH Susan Lega Gommifsioner Mayeasury Board Polley Sulte, Contracting Policy (date modified 2013-10-09), clause 128.1 Procurement files ohall be established and structured to facitate management oversight with c complete audit tral that contains contracting datalts related to relevant communication and decision including the identification of involved officials sind contracting approval authorities, \ Faeitlty Maintenance Policy ~ Real Property ~ PWGSC (date modified: 3012-10-30}, whish oeta out in the Policy Objective “..the direction that RAS must follow in order to provide serulee exzellence in the maintenance of facilities so as to meet the requirements of Clients, occupants, PWOSS, government and the public in a manner consistent whith fegulatory and other poliey constraints at an aoceptatle He eycle cost." © SNC-Lavatin O&M, Client Specific Conditléns, applicnble to Suppliers performing work {or SNCL O8M In connection with the PWGSC contract, April 2010 - Page 1 of 4 (revised September 2013}, 3.0 Conduct of the Work, 3.4 The Supplier shall provide reports of the performance of the Work as are required by the Contract and such other reporis as may racsonably be requived by SNCL OFM Ottawa Perlmeter Portfolio, Contract Ne, EPS10-03A00t /003/GB, Client Rel.No. €P310-09A001, Statement of Work, ‘ eo3s9 000043PROTECTED 8 Page 9 “TBS Guidance Document: Taking Privacy into Account Before Making Contracting Deelsions (date modified: 2010-08-25), +! PriceWaterhouseCsopers, Forensic Audit of Seventy Transactions Under the SNC- Lawalin O&M Contracts, Publls Warks and Government Services Canada Contract No. EN790-104293/001/ZQ, August 9, 2011. ‘000448.23 STEERING COMMITTEE ON “INFORMATION UNDER THE CONTROL OF THE DEPARTMENT” Background On May 7, 2012, the Access to Information and Privacy (ATIP) Directorate received a request (A-2012-00078) for “all documents and communications related to the work Capital Airflow Ltd. had performed at 875 Heron Ré., Ottawa in November and December 2007. This would include tendering docurnents, consultant reports and all other reports related.” The racords requested relate to work contracted out to SNC-Lavalin Operations & Maintenance Inc. (SNC), by Public Works and Government Services Canada (PWGSC). The ATIP Directorate tasked the Real Property Branch (RPB) with retrieving ‘the relevant records. After an initial ni! response, RPB requested documents from the contractor, SNC. Records were retrieved, processed under the Act and released to the requester. ‘The requester issued a complaint regarding the processing of the request to the Office of the Information Commissioner (OIC) who followed-up with an investigation. PWGSC's position is that, going forward files will be evaluated on a case by case basis to determine the control issue. ‘The OIC did not agree with this position stating that the jurisprudence has established ‘that “contra!” is not limited to physical possession of records but extends to records which an institution has the right to request and receive. For this reason, the Information Commissioner made the following recommendations in her report to the Minister: 1. PWGSC ensure that all records under its control, whether or not they are in its physical possession, are retrieved and processed in response to requests made under the Access to Information Act; 2. PWGSC craft and implement a clear policy explaining the issue of control and its application to records held by contractors and subcontractors; 3. PWGSC provide training to employees to ensure that all records under the control of PWGSC are retrieved and processed by PWGSC-ATIP, 4, PWGSC ensure that all contractors are aware of the requirements of the Act and take steps to manage their information holdings accordingly. A preliminary response was sent to the Information Commissioner advising her that PWGSC will initiate a review of current policies and practices with a commitment to provide her with a more substantive response upon completion of this exercise. ‘0004sPolicy review and proposed mitigating measures. In August 2014, terms of reference were developed to clarify the mandate of the policy and practice review. A steering committee at the director-general level was set-up ‘composed of representatives from the Policy, Planning and Communications Branch, Acquisitions Branch, Real Property Branch as well as Legal Services. The Committee's mandate was to determine a common understanding of what “under our control” means in relation to the retrieval of information from a contractor following an access to information request; ascertain what information is required by PWGSC to properly execute its mandate; and propose, through a systematic review of all policies aligned with the OIC recommendations, measures to ensure consistent practices when responding to access to information requests for documents held by third parties acting on behat of the Crown. Defining “Documents deemed to be under the Department's control” ‘The notion of conirol must be given a broad and liberal meaning in order to ensure a meaningful right of access to government information. “Physical” possession of a document is not required for control to be present. ‘There is contro! if the Department has the legal (for example health and safety) or contractual obligation to retrieve the documents from third parties upon demand, under specific circumstances. The Department may include in Its contracts and other instruments measures to ensure access to information held by third parties for specific purposes such as quality monitoring, performance measurement and audits. However, if an audit, for example, has not been initiated by the Department, the information is, deemed not to be under its control. Further, if an audit has been initiated by the Department, only the information / documentation in scope for and/or requested and received to respond to the aucit exercise would be considered to be under the control of the Department. The fact that detailed information is provided by third parties for quality monitoring, performance measurement and audit purposes does not mean that all information of a similar nature that may be in the possession of and controlled by a third party is Ceemed to be under ‘the control of or available to be requested by the Department. When the documents requested are not in the physical possession of the Department, a ‘two step test approach should be used to determine if such documents are under its, control: Step 1: Inquire whether or not the record requested relates to a departmental matter (departmental matter is defined as being an issue or subject directly related to the, departmental mandate, a departmental program or a legislative or regulatory requirement); and 00046Step 2: Determine if a senior official of the Department should reasonably have a copy of the record based on factors such as the substantive content of the record, the circumstances in which it was created, and the legal relationship between the Department and the record holder. o The reasonable expectation test is objective: whether senior officials could reasonably expect to get access to a record upon request. Therefore, determining whether or not PWGSC has control over information has to be done on a case by case basis, taking into account the nature of the information, the requirement to have access the document and the relationship between the Department and the third-party. Policy review In addition to arriving at a common understanding of what it means to have control over documents in the context of responding to an access to information request, a number of critical policy instruments were reviewed to assess if any opportunttias, that would add clarity to our internal practices and activities and in applying our due diligence, could be found, ‘The ATIP Program's policy and the policy suites, for procurement and real property management, were analyzed to determine if they are compatible with the departmental position on the issue of control. A detailed table of policies reviewed and observations can be found at the end of the document. Proposed measures The main conclusion of the review is that the Department's policy framework and practices are sound and only slight modifications are required to add clarity to our ‘a0cess to information practices in regard to the determination as to the documents that should be protessed following a request. ‘The following are PWGSC's actions in response to the Information Commissioner's recommendations: 1. Amend the Policy on Access to Information and Privacy (ATIP) Program (002) by January 2015 by clarifying the definition of “under our contro!” and providing more guidance on how and when to access documents created/held by third parties. 2. Amend the Framework in accordance with the updated ATIP policy to provide guidance to employees when answering requests that may require documents created/held by third parties. 0000478. 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At that time, | informed you that in advance of a more substantive response to your four recommendations regarding the issue of control, Public Warks and Government Services Canada (PWGSC) would be conducting a systematic review of our policies and practices: We have now completed an extensive, horizontal review of 12 departmental and Treasury Board policies related to Access to Information and Privacy (ATIP), Acquisitions and Real Property. With regard to your first recommendation, we established PWGSC's definition and interpretation of documents deemed under our control for purposes of the Access fo Information Act: “There is control if the Department hes the legal (for example health and safety) or contractual obligation to retrieve the documents from third parties upon demand, under specific circumstances. The Department may Include in its contracts and other instruments measures to ensure access to Information held by third parties for specific purposes such as quality monitoring, performance messurement and audits. However, if an audit, for example, has not been initiated by the Department, the information is deemed not to be under its control.” Within the context of the definition, tivo questions will be asked every time a document is requested that is not in the physical possession of the Department: 1. Whether or net the record requésted relates to a departmental matter (departmental matter is defined as being an issue or subject directly Canada - ‘00052related to the departmental mandate, a departmental program or a legislative or regulatory requirement); and 2, Determine if a senior official of the Department should reasonably have a copy of the record based on factors such as the substantive content of the record, the circumstances in which it was created, and the legal relationship between the Department and the record holder. With this in place, PWGSC will ensure that all records under its control, whether or not they are in our physical possession, are retrieved and processed in response to requests made under the Access fo Information Act In consideration of your other three recommendations, we reviewed the policies and practices and concluded that they are sound, but identified opportunities to refine certain access to information practices across PWGSC and to clarify our application of due diligence in our relationships with contractors. As a result, the Department will implement measures fo ensure that all documents under our control are retrieved and processed in accordance with the ATIP Act. These measures wil also reinforces the effectiveness of current practices and refine our approach to relevant areas of : our operations. More specifically, PWGSC will amend its policy on the ATIP : Program to reflect our definition of ‘under our contro." The Department will also amend the Acquisition Policy Framework in accordance with the updated ATIP Policy and develop a Real Property Information Management Directive to better support employees when answering requests that may require documents created and/or held by third parties. These measures will also assist in establishing clear expectations to suppliers on PWGSC information requirements. A targeted training program Is being developed to support these measures, trust that the combination of these actions will address the points you have raised. Again, thank you for taking the time to bring this matter to the Department's attention Yours sincerely, bapharan Michelle d'Auray ¢.c.: The Honourable Diane Finley, PC, MP Minister of Public Works and Government Services. 900053He Travaux publics et Public Works and Services gouvernementaux Goveriment Services oa oe COPY Sous mitra Sousrreceveur général Deputy Rocelver Goneral au Canaca for Canada tae, Canaca Otae, Canaéa Rings Rats Madame Suzanne Legault NOV 07-2016 Commissaire a information du Canada 112, rue Kent Ottawa (Ontario) K1A 1H3 wen ‘ Madel La présente a pour but de donner suite ma lettre du 12 mai 2014 concemant vos recommandations a la suite de enquéte sur la demande d'aceés a linformation 2012-00079. Je vous avais alors indiqué qu’avant de vous foumir une réponse plus détalllée concernant vos quatre recommandations sur la question des documents relevant d’urig stitution fédérale, Travaux publics et Services gouvernementaux Canada (TPSGC) procéderait 4 un examen systématique de ses politiques et de ses pratiques. Nous avons maintenant terminé un examen horizontal exhaustif de 12 politiques du Minist&re et du Conseil du Trésor sur l'accés a l'information et la protection des renseignements. personnels (AIPRP), les approvisionnements et les biens immobiliers. En ce quia trait a votre premiére recommandation, nous avons établi une définition et une interprétation des documents considérés comme relevant de TPSGC aux fins de la Loi sur faccés 4 l'information: « On considére que des documents relévent du Ministére sice dernier a Fobligation légale (par exemple pour une question de santé et de sécurité) ou obligation contractuelle d'obtenir ces documents auprés de tiers sur demande, dans des circonstances précises. Le Ministére peut inolure dans ses contrats et d'autres instruments des mesures pour assurer acces a information détenue par des tiers pour des raisons précises comme le contréle de la qualité, a mesure du rendement et les vérifications. Toutefois, si une verification, par exemple, n’a pas été entreprise par le Ministére, information n’est pas considérée comme relevant du Ministére. » Canada ‘000054Dans le contexte de la définition, deux questions doivent étre posées chaque fois qu’on demande un document qui ne se trouve pas dans la possession matérielle du Ministére : 1. Est-ce que le document a trait & une question ministérielle (enjeti ou ‘sujet qui aun lien direct avec le mandat ou un programme du Ministére, ou avec une exigence juridique ou réglementaire)? 2, Déterminer si un cadre supérieur du Ministére devrait raisonnablement avoir Une copie du document en se fondant sur des facteurs comme le contenu du document, les circonstances dans lesquelles Il e été produit et les liens juridiques entre le Ministére et le détenteur du document. Une fois cela établi, TPSGC doit s'assurer que tous les documents qui telavent de lui, qu’ils soient ou non en sa possession matérielle, sont obtenus et traités pour répondre aux demandes présentées en vertu de la Loi sur laceas 4 l'information. Quant aux trois autres récommandations, nous avons examiné les politiques et les pratiques en vigueur et conclu qu’elles sont toujours pertinentes, mais nous avons déterminé qu'il était possible d’'améliorer certaines pratiques en matiére d'accés @ l'information dans ensemble du Ministre et de préciser notre maniére d’appliquer la diligence raisonnable dans nos relations avec les entrepreneurs. Le Ministére entend doric appliquer des mesures pour que tous les documents qui relevent de lui soient obtenus et traités conformément & li Loi sur accés a Information. Ces mesures nous permettront de renforcer Vefficacité de nos pratiques en vigueur et de raffiner notre approche a I’égard des éléments pertinents de nos activités. De facon plus précise, TPSGC modifiera sa Politique sur le programme a’AIPRP en prenant en compte sa définition de « relevant de ». De plus, le Ministére modifiera le Cadre stratégique des politiques du Programme des approvisionnements, conformément aux modifications qu'il apportera & sa Politique sur | AIPRP, et i élaborera une Directive sur la gestion de Y'nformation pour les biens immobiliers pour mieux appuyer les employés lorsau'ils doivent répondre A des questions qui pourraient nécessiter des documents créés ou détenus par des, tiers. Ces mesures contribueront aussi 8 définir des attentes claires pour les foumisseurs au sujet des exigences én matiére d'information de TPSGC. Un programme de formation ciblé pour appuyer ces mesures est en cours d'6laboration. Jespére que ces mesures sauront répondre aux points que vous avez soulevés, BB ‘000085Je vous remercie encore d’avoir pris le temps de porter cette question & attention du Ministre et vous prie d’agréer, Maclame, t'expression de mes sincéras salutations, Michelle o’Auray e.c. L’honorable Diane Finley, C.P., députée Ministre des Travaux publics et des Services gouvernémentaux 000056“La Nn S waz Sector DM Teeveucubles et Buble Works ang 139283, vices gouvernementaux Goverment Serves Senada ™ Canada = 05/11/2014 Sous-ministre adjoint Assistant Deputy Minister tana, Canada Rinse ADM: Aired MacLeod, 819-956-4058 DG: Anne-Marie Peltier, 818-956-5132 Security: Normal MEMORANDUM TO THE DEPUTY MINISTER FOR DECISION SUBJECT: Follow-up to your initial response to the Information Commissioner's report of findings of an investigation into a complaint regarding request A-2012-00079 SUMMARY On May 12, 2014, you sent a letter to the Information Commissioner concerning the findings and recommendations of her investigation into a complaint, fled against the Department, about the manner in which an ATIP request was processed (Annex A). In your reply, you indicated that the Department would undertake a systematic review of current policies and practices prior to providing a more substantive reply to the recommendations. The review is completed. The Department's policy framework and access to information practices are sound. Only slight modifications are required to respond to the Information Commissioners finding, and ensure access to. records held by contractors. You will find enclosed an overview of the policy review results (Annex B) as well as a proposed follow-up letter to the | Commissioner, for your approval (Annex C), J TIME FRAME At your conver BACKGROUND (On May 7, 2012, the Access to Information and Privacy (ATIP) Directorate received a request (A-2012-00078) for “all documents and communications related to the work Capital Airflow Ltd. had performed at 875 Heron Rd., Ottawa in Novernber and December 2007. This would include tendering documents, consultant reports and all other reports related, 2 00001$23 ‘The records requested relate to work contracted out to SNC-Lavalin Operations & Maintenance Inc, (SNC). Following the release of documents, the requester issued a complaint to the information Commissioner regarding the manner in which his request was processed. The OIC did not agree with this position. For this main reason, the Information Commissioner made the following recommendations in her report following her investigation 1. PWGSC ensure that all records under its control, whether or not they are in its physical possession, are retrieved and processed in response to requests made under the Access to Information Act, 2. PWGSC draft and implement a clear polioy explaining the issue of control and its application to records held by contractors and subcontractors; 3. PWGSC provide training to employees to ensure that all records under the control of PWGSC are retrieved and processed by PWGSC-ATIP: 4, PWGSC ensure that all contractors are aware of the requirements of the Act and take steps to manage their information holdings accordingly. In your provisional response, you informed the OIC that PWGSC would undertake a systematic review of intemal policies and practices prior to providing @ more substantive reply to her recommendations. PWGSC POLICY REVIEW WORKING GROUP A Director General level working group of key stakeholders from the Acquisitions Branch, Real Property Branch and Legal Services was formed with a mandate to: - review and assess the adequacy and effectiveness of the policies and procedures pertaining to management of PWGSC contractual relationships = respond to recommendations made by the Office of the Information Commissioner of Canada. (Annex A) ‘00002= propose an implementation strategy with concrete actions and recommendations to enhance the policy framework conceming contracting practices as necessary on a go forward basis. FINDINGS. ‘The main conclusion is that the Department's policy framework and practices are sound. The review identified opportunities to gain greater clarification to assist in our access to information practices in regard to the determination as to the documents that should be processed following a request (Annex B) ACTION PLAN In response to the OIC recommendations, the following actions are set out: 1. Amend the Policy on Access to Information and Privacy (ATIP) Program (002) by January 2015 by clarifying the definition of "under our contro!” and providing more guidance on how and when to access documents created/held by third parties. The following will assist PWGSC to ensure that all contractors are aware of the requirements of the Act and take steps to manage their information holdings accordingly: 2, Amend the Acquisition Branch's Framework on information management in accordance to the amended ATIP Policy by May 2015 3. Develop an information management directive to be integrated into the Real Property Policy Management Framework by October 2015, ‘To Support implementation and consistency across the department: 4, The ATIP Directorate will provide tailored-training to respond to the specific needs of Acquisitions and Real Property staff most affected by the changes. (ongoing) RECOMMENDATION | recommend that you send the enclosed response letter to the OIC to fic% the file on this complaint (Annex C). i Mk Alfred MacLeod 14 000003Attachment(s): + Annex A—May 12, 2074 reply to the Information Commissioner + Annex B ~ Policy Review Working Group's report ‘+ Annex C — Final response to the OIC. ‘000004fed “Travaux publics et Public Werks and Services gouvernementaux Govetnmant Services Canada Canada Sous-ministe Deputy Minister Sous-ecoveur général Deputy Recaiver General ‘du Canada {for Canada Ms. Suzanne Legault Information Commissioner of Canada 112 Kent Street Ottawa, Ontario K1A 1H3 MA 12201 omy {1am writing in response to your letter of April 24, 2014 addressed to the Honourable Diane Finley regarding your conclusions and recommendations following your investigation of Access fo Information request 2012-00079 As these matters relate to departmental policies and practices, including contractual arrangements with third party service providers, | will be undertaking a review of current practices and obligations. Upon completion of this review, | will provide a substantive reply to your recommendations, ‘Thank you for taking the time to bring this matter to the Department's attention. Yours sincerely, Walberg Michelle d’Auray ©.c.: The Honourable Diane Finley, Minister of Public Works and Government Services Canada ‘000005| Trovaun publics ot Public Wiens end Services gouvernementaws Goverement Sonvces Canada Canada Sous-miniare Daputy Maistoc Sous-rucaveurgénéesl Deputy Receiver General de Canada for Canad Ms. Suzanne Legault Information Commissioner of Canada 142 Kent Street Ottawa, Ontario KIA 1H3, mA 12201 ‘Sean Dear Yortisgaut am writing in response to your letter of April 24, 2014 addressed to the Honourable Diane Finley regarding your conolusions and recommendations following your investigation of Access fo Information request 2012-00079. As these matters relate to departmental policies and practiess, including contractual arrangements with third party service providers, I will be undertaking a review of current practices and obligations. Upon completion of this review, I will provide a substantive reply to your recommendations, ‘Thanik you for taking the time to bring this matter to the Department's attention, Yours sincerely, Michetie d'Auray c.c.: The Honourable Diane Finley, Minister of Public Works and Goverment Services Canada (000006823 STEERING COMMITTEE ON “INFORMATION UNDER THE CONTROL OF THE DEPARTMENT” Background On May 7, 2012, the Access to Information and Privacy (ATIP) Directorate received a request (A-2012-00079) for “all documents and communications related to the work. Capital Airflow Ltd. had performed at 875 Heron Fd., Ottawa in November and December 2007. This wauld include tendering documents, consultant reports and all other reports related.” The records requested relate to work contracted out to SNC-Lavalin Operations & Maintenance Inc. (SNC), by Public Works and Government Services Canada (PWGSC). The ATIP Directorate tasked the Real Property Branch (APB) with retrieving the relevant records, After an initial nif response, APB requested documents from the contractor, SNC. Records were retrieved, processed under the Act and released to the requester. ‘The requester issued a complaint regarding the processing of the request to the Office of the Information Commissioner (OIC) who followed-up with an investigation. PWUSU's position 1s tnat, going torward tiles will be evaluated on a case by case basis to determine the control issue. The OIC did not agree with this position stating that the jurisprudence has established that “controt’ is not limited to physical possession of records but extends to records which an institution has the right to request and receive. For this reason, the Information Commissioner made the following recommendations in her report to the Minister: 1. PWGSC ensure that all records under its control, whether or not they are in its physical possession, are retrieved and processed in response to requests made under the Access to Information Act, 2, PWGSC draft and implement a clear policy explaining the issue of control and its application to records held by contractors and subcontractors; 8. PWGSC provide training to employees to ensure that all records under the control of PWGSC are retrieved and processed by PWGSC-ATIP; 4, PWGSC ensure that all contractors are aware of the requirements of the Act and take steps to manage their information holdings accordingly. A preliminary response was sent to the Information Commissioner advising her that, PWGSC will initiate a review of current policies and practices with a commitment to provide her with a more substantive response upon completion of this exercise. (000007Policy review and proposed mitigating measures. In August 2014, terms of reference were developed to clarify the mandate of the policy and practice review. A steering committee at the director-general level was set-up Composed of representatives from the Policy, Planning and Communications Branch, Acquisitions Branch, Real Property Branch as well as Legal Services. The Committee’s mandate was to determine a common understanding of what “under our control’ means. in relation to the retrieval of information from a contractor follawing an access to information request; ascertain what information is required by PWGSC to properly execute its mandate; and propose, through a systematic review of all policies aligned with the OIC recommendations, measures to ensure consistent practices when responding to access to information requests for documents held by third parties acting on behaff of the Crown. Defining “Documents deemed to be under the Department's contro!” The nation of control must be given a broad and liberal meaning in order to ensure a meaningful right of access to government information. “Physical” possession of 2 document is not required for control to be present. ‘There is control if the Department has the legal (for example health and safety) or contractual obligation to retrieve the documents from third parties upon demand, under specific circumstances. The Department may include in Its contracts and other instruments measures to ensure access to information held by third parties for specific purposes such as quality monitoring, performance measurement and audits. However, if ‘an audit, for example, has not been initiated by the Department, the information is deemed not to be under its control. Further, if an audit has been initiated by the Department, only the information / documentation in scope for and/or requested and received to respond to the audit exercise would be considered to be under the control of the Department. The fact that detailed information is provided by third parties for quality monitoring, performance measurement and audit purposes does not mean that all information of a similar nature ‘that may be in the possession of and controlled by a third party is deemed to be under the control of or available to be requested by the Department. When the documents requested are not in the physical possession of the Department, a ‘two step test approach should be used to determine if such documents are under its control: Step 1: Inquire whether or not the record requested relates to a departmental matter (departmental matter is defined as being an issue or subject directly related to the. departmental mandate, a departmental program or a legislative or regulatory requirement); and ‘000008Step 2: Determine if a senior official of the Department should reasonably have a copy of the record based on factors such as the substantive content of the record, the ‘circumstances in which it was created, and the fegal relationship between the Department and the record holder. The reasonable expeciation test is objective: whether senior officials co reasonably expect to get access to a record upon request. Therefore, determining whether or not PWGSC has control over infarmation has to be done on a case by case basis, taking into account the nature of the information, the Tequirement to have access the document and the relationship between the Department and the third-party. Policy review {in addition to arriving at a common understanding of what it means to have contro! over documents in the context of responding to an access to information request, a number of critical policy instruments were reviewed to assess if any opportunities, that would add clarity to our internal practices and activities and in applying our due diligence, could be found, The ATIP Program's policy and the policy suites, for procurement and real property management, were analyze¢ to determine if they are compatible with the departmental position on the issue of control. A detailed table of policies reviewed and cbservations can be found at the end of the document. Proposed measures The main conclusion of the review is that the Department's policy framework and practices are sound and only slight modifications are required to add clarity to our access to information practices in regard to the determination as to the documents that should be processed following a request. The following are PWGSC's actions in response to the Information Commissioner's recommendations: 1. Amend the Policy on Access to Information and Privacy (ATIP) Program (002) by January 2015 by clarifying the definition of “under our contro!” and providing more guidance on how and when to access documents created/hold by third parties, 2, Amend the Framework in accordance with the updated ATIP policy to provide guidance to employees when answering requests that may require documonts created/held by third parties.i 3. 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Aaiiog fusadoie 120 | | $103 129020 |DRAFT [File Noy ‘ADM: Allred Macleod, 819-956-4056 DG: Anne-Marie Pelletier, 619-956-5132 Ms. Suzanne Legault Information Commissioner of Canada 112 Kent Street Ottawa, Ontario KIA 1H3 Dear Ms Legautt: This letter is in follow-up to my previous correspondence of May 9, 2014, to you regarding your recommendations following your investigation of Access to Information request 2012-00079. At that time, | informed you that in advance of a more substantive response to your recommendations my department would be conducting a systematic Teview of our policies and practices. We have now completed an extensive, horizontal review of our policies and practices. This three-month exercise, led by a Director General ievel steering committee, and including representation ‘or the department's Legal Service group, reviewed a total of 12 departmentat and Treasury Board (6) policies related to ATIP, Acquisition and Real Property. As a first stop, the Steering committee confirmed PWGSC's definition and interpretation of documents deemed under our control for purposes of the Access to Information Act: “There is contro! if the Depariment has the legal (for example health and safety) or contractual obligation to retrieve the documents from third parties upon demand, under specific circumstances. The Department may include in its contracts and other instruments measures to ensure access to Information held by third parties for specific purposes such as quality monitoring, performance measurement and audits. However, if an audi, for example, has noi been initiated by the Department, the information is deemed not to be under its controi.” Asa second step, the committee reviewed the policies and practices and concluded that they are sound, On a more granular level, the review identified ‘opportunities to refine cartain access to information practices across the department and to clarify our application of due diligence in our relationships with contractors. l2 00014AAs result, the Departmont will implement measures to reinforce the effectiveness of current practices and refine our approach to relevant areas of our operations. More specifically, PWGSC will amend its Policy on ATIP Program to reflect revised definition of “under our control. The department will also amend the Acquisition Policy Framework in accordance with the updated ATIP policy and develop a Real Property Information Management Directive to better support employees when answering requests thal may require documents created and/or held by third parties. These measures will also assist in establishing clear expectations to suppliers on PWGSC information requirements. A targeted training program is being developed to support these measures. | trust that combination of these actions will address the points you have raised Again, thank you for taking the time to bring this matter to Department's attention. Yours sincerely, Michelle d’Auray Minister of Public Works And Government Services 000018