On February 8th, 2024, Information and Privacy Commissioner Newfoundland and Labrador Michael Harvey released his report on my complaint regarding Memorial University’s refusal to provide records I requested, including bonuses/special payments paid to C-Core and Genesis executives and management employees and vehicle allowances paid to Genesis and Centre for Fisheries Innovation executive.
Memorial claimed that they do not have custody or control of the records as it relates to expenditures by separately incorporated entities. The Commissioner stated that Memorial should have conducted a search for the responsive records, and without such a search, a claim of a lack of custody or control cannot be substantiated.
The Commissioner found that Memorial violated section 13(1) of ATIPPA, 2015 (duty to assist the applicant). An analysis of Memorial’s custody or control by the Commissioner showed that on a balance of probabilities, Memorial does have custody or control of records containing information relating to the Complainant’s (my) access request.
The Commissioner stated that Memorial has a duty to conduct a search for records unless it can provide strong evidence that it is highly unlikely that such records would be in Memorial’s custody or control and, therefore, conducting a search would be a waste of resources. Memorial did not provide that evidence. The Commissioner stated that Memorial’s argument that documents that may belong to a third party are, by default, not under the university custody or control is without basis.
The Commissioner also stated that section 38(2) of the Memorial University Act requires that the university comply with section 19(3) of the Auditor General’s Act. The Auditor General is the auditor for all Crown and Crown-controlled corporations, and the Auditor General has access to all the information that went into an audit of these corporations. The Commissioner states that if the Auditor General has access to all the information that went into an audit of these corporations and if the Auditor General can access this information upon request, then Memorial, by statutory necessity, has to either have custody or can request copies of the financial information sought by the Complainant.
The Commissioner states that due to notes included in the recent Auditor General’s report of Memorial, it is likely that Memorial is in possession of the records. The source of this information is listed as Memorial. A review of the source for all information contained in the report shows that Genesis, C-Core, and CCFI provided no information to the Auditor General, and all financial information used in the report appears to have been sourced directly from Memorial.
The Commissioner recommended that Memorial conduct a reasonable search for the records and, if necessary, request records from C-Core, Genesis, and the Canadian Centre for Fisheries Innovation and that Memorial provide its final response within 30 business days of receipt of the Commissioner’s report.
Download the report below:
Matt Barter is a fourth-year student in the Humanities and Social Sciences Faculty at Memorial University of Newfoundland, majoring in Political Science with a minor in Sociology. He enjoys reading thought-provoking articles, walks in nature, and volunteering in the community.
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