An information battle that has been going on since 2012 has finally been resolved regarding Public Works documents being ordered for release to the public. Information Commissioner Suzanne Legault spearheaded the year-long investigation into the health and safety documents for a Canada Revenue Agency building due to concern about asbestos exposure to its employees.
Asbestos was long considered a miracle material as it boasts excellent fire and heat resistant properties, and therefore, was used in the construction of numerous buildings throughout history. Now it’s known to be a human carcinogen that can cause mesothelioma cancer. Unfortunately, despite knowledge of health risks posed by asbestos exposure, many companies still used the dangerous material well into the middle of the twentieth century.
In 2008, one of the CRA tax center employees filed a health and safety compliant, yet the Public Works officials would not provide everything given to them by the building manager (SNC-Lavalin) for the building’s air quality testing.
Originally, 12 of 39 pages were given to this particular employee, but with Legault’s work, now the other 25 must be handed over as well. A two-page letter from the air quality subcontractor was withheld on account of control and is yet to be released.
With the term “control,” current Canadian law states departments can only release documents through access to information that’s deemed under their control. Public Works Minister Diane Finley and her deputy minister argued that because a private contractor preforms the tax center’s asbestos tests, they did not have control over this third party and the documents it released.
Legault countered saying, “I am concerned that records held by contractors acting on behalf of [Public Works] in the context of the [alternative forms of delivery] initiative in the [real property branch] will not be routinely retrieved and processed.” She hopes to see greater access to documents from building managers.
Although it is common for private companies to be contracted to manage federal buildings and perform annual asbestos tests, including recommendations on repair and removal of asbestos to ensure the building does not pose a health risk for occupancy, Legault claims a narrow approach to control was executed in this situation. In fact, a “contractual right” does exist for Public Works to get the documents from the third party SNC-Lavalin building manager per a 2011 Supreme Court of Canada decision.
“The test to establish control requires that a senior official can reasonably expect to be entitled to be provided with a copy of a record,” said Legault. “It is not limited to physical control.”
“[Public Works] takes its access to information obligations very seriously and ensures that all relevant records are provided to requesters,” said Alain Bujold, spokesperson for the department. “Requesters already receive all documents that are relevant to their requests. The administrative changes simply clarify what needs to be done in response to ATIP [Access to Information and Privacy] requests when documents are held by third parties.”
Now Public Works has “amended its internal access to information policy” with “slight modifications” to rules and procedures around access to information, but this will still occur on a case-by-case basis.