Canada Revenue Agency (Re), 2024 OIC 52
Date:2024-08-01
OIC file number: 5823-04426
Access request number: A-2023-165706
Summary
The complainant alleged that the Canada Revenue Agency (CRA) did not respond within the extended period under subsection 9(1) of the Access to Information Act to an access request. The request was for all documents respecting House of Commons committee studies related to the business of the Pierre Elliott Trudeau Foundation, from February 1, 2023 to July 14, 2023. The allegation falls under paragraph 30(1)(a) of the Act.
During the investigation, the Office of the Information Commissioner (OIC) was advised that approximately 5,782 pages of responsive records were initially received. It was also noted that, although follow-ups were initiated, one of CRA’s Offices of Primary Interest (OPIs) had not yet provided the balance of their responsive records (approximately 4,715 pages) for review.
Despite the remaining work, given how long the response to the access request has been outstanding, the Information Commissioner ordered the Minister of National Revenue that CRA to issue a complete response to the access request by no later than January 8, 2025. In addition, the Information Commissioner made two recommendations: first, that CRA develop proper processes and procedures to ensure that CRA OPIs will abide by their responsibilities to provide responsive records in a timely fashion to CRA’s ATIP Office; and second, that CRA develop performance indicators to hold its senior officials accountable for delays in providing responsive records to CRA’s ATIP Office. CRA gave notice to the Commissioner that it would implement the order and has taken the recommendations into consideration.
The complaint is well founded.
Complaint
[1] The complainant alleged that the Canada Revenue Agency (CRA) did not respond within the extended period under subsection 9(1) of the Access to Information Act to an access request. The request was for all documents, memoranda, e-mails, correspondence, briefing notes, text messages, messages on Microsoft Teams or any other messaging platform, and any other records, including drafts, respecting House of Commons committee studies related to the business of the Pierre Elliott Trudeau Foundation, from February 1, 2023 to July 14, 2023.
[2] The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
Time limits for responding to access requests
[3] Section 7 requires institutions to respond to access requests within 30 days unless they have transferred a request to another institution or validly extended the 30-day period for responding by meeting the requirements of section 9. When an institution does not respond to a request within the 30-day or extended period, it is deemed to have refused access to the requested records under subsection 10(3).
[4] Nevertheless, the institution is still required to provide a response to the access request.
What is a response?
[5] The response must be in writing and indicate whether the institution is giving access to any or part of the requested records.
- When the response indicates that the institution has given access to the records or part of them, the institution must provide access to those records.
- When the response indicates that the institution has denied access to the records or part of them, the institution must explain that the records do not exist or that the institution has exempted them, or part of them, under a specific provision, which the institution must name.
[6] In specific circumstances, the institution may refuse to confirm or deny in its response whether records exist under subsection 10(2).
Did the institution respond within the time limits?
[7] CRA received the access request on July 14, 2023. On August 14, 2023, CRA extended the period it had to respond by 150 days under paragraph 9(1)(a), making the time limit to respond January 10, 2024.
[8] CRA did not respond to the access request when the extension of time expired. I conclude, therefore, that CRA did not meet its obligation to respond to the request within the extended period. CRA is deemed to have refused access to the requested records under subsection 10(3).
Subsection 10(3): deemed refusal of access
[9] Under subsection 10(3), when institutions do not respond to an access request within 30 days or by the end of the period for which they validly extended the period they had to respond, they are deemed to have refused access to the requested records.
[10] In their representations, CRA stated that four Offices of Primary Interest (OPIs) were tasked and 5,782 pages of responsive documents had been provided; however, one of the OPIs indicated that additional documents would follow. The CRA analyst has followed up with the Legislative Policy and Regulatory Affairs Branch (LPRAB), but has yet to receive the estimated additional 4,715 pages of documents.
[11] In addition, CRA noted that a consultation with another government department, the Privy Council Office, would be required. CRA indicated that it is unknown at this time whether further consultations will be needed, as the analyst has not yet received the full balance of responsive documents.
[12] CRA has an obligation to ensure that access requests are responded to in accordance with the requirements of the Act. Furthermore, the responsible OPI has an obligation to ensure that the requested time limits to provide records are respected so that the requirements of the Act are met. The lack of responsiveness by the OPI in this case has significantly affected the ability of CRA’s Access to Information and Privacy unit to comply with the timelines set out in the Act. The Minister should remind his public officials of their responsibility in providing timely access to information to Canadians. The ATIP unit is not the only one responsible in ensuring that the Act is respected; it is a departmental and collective responsibility. It is up to the head of the institution, here the Minister of National Revenue, to ensure that this is understood and respected within the institution.
[13] In addition, I understand the importance of consultations when responding to access requests. However, CRA has a statutory obligation to ensure that access requests are responded to in accordance with the requirements of the Act on records that are under its control. While recognizing that in some circumstances, it may be appropriate for an institution to consult another government institution, for the purpose of responding to a request, the institution in receipt of the request bears the ultimate responsibility in ensuring that the consultation process does not unduly delay access.
[14] Although CRA indicated that 5,782 pages of responsive records have been received to-date, and that the review of these documents began on January 17, 2024, only 282 pages have been reviewed thus far. CRA commented that this was due to competing priorities and the delay in receipt of the documents from LPRAB.
[15] CRA indicated to the OIC that they plan to fully respond to the request by March 27, 2025. I find this date to be unreasonable.
[16] Despite the work that remains, given how long the response to the access request has been outstanding, I find that CRA must issue the response by no later than January 8, 2025. In addition, CRA should give consideration to whether it is possible to issue interim releases for documents not requiring consultation and in which the review has been completed.
Outcome
[17] The complaint is well founded.
Order and recommendations
I order the Minister of National Revenue to provide a complete response to the access request no later than January 8, 2025.
I recommend that the Minister of National Revenue do the following:
- develop proper processes and procedures to ensure that CRA OPIs will abide by their responsibilities to provide responsive records in a timely fashion to CRA’s ATIP Office; and
- develop performance indicators to hold its senior officials accountable for delays in providing responsive records to CRA’s ATIP Office.
Initial report and notice from institution
On June 26, 2024, I issued my initial report to the Minister setting out my order and recommendations.
On July 26, 2024, Director of Access to Information and Privacy Directorate (Director) gave me notice that CRA would be implementing my order.
In addition, the Director stated that CRA have taken my recommendations into consideration.
Review by Federal Court
When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. Whoever applies for a review must do so within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by this deadline, this order takes effect on the 36th business day after the date of this report.