Canadian Security Intelligence Service (Re), 2022 OIC 05
Date: 2022-01-28
OIC file number: 5821-03023
Institution file number: 117-2020-223
Summary
The complainant alleged that the Canadian Security Intelligence Service (CSIS) failed to respond to an access request within the time limits set out in the Access to Information Act.
On September 2, 2020, CSIS received an access request for records pertaining to specific operational reviews concerning co-operation between CSIS and the Royal Canadian Mounted Police (RCMP). CSIS claimed a 240-day extension of time pursuant to paragraph 9(1)(b). This time extension was found by the Office of the Information Commissioner (OIC) to be valid; therefore, the extended due date for a response was May 31, 2021.
On October 12, 2021, the OIC received a second complaint, which confirmed that CSIS had ultimately failed to respond to the complainant by the extended due date.
To date, the complainant has waited for over a year for a complete response; eight months have passed since the expiry of the time extension. This lack of responsiveness is in clear contravention of CSIS’ obligations under the Act and undermines the credibility of the access system.
Under subsection 36.1(1) of the Act, an order was sent to the Minister of Public Safety and Emergency Preparedness to complete the processing of the access request and provide a response to the access request by no later than 36 business days after the date of the Final Report.
The complaint is well founded.
Complaint
[1] The complainant alleged that the CSIS failed to respond to an access request within the time limits set out in the Act.
Investigation
[2] On September 2, 2020, CSIS received an access request for records pertaining to specific operational reviews concerning co-operation between CSIS and the RCMP.
[3] Based on the date of receipt of the access request, the statutory 30-day deadline for a timely response was October 2, 2020.
[4] On October 2, 2020, within the legislative timeframe to do so, CSIS claimed a 240-day extension of time pursuant to paragraph 9(1)(b) to complete the processing of the access request. If valid, this time extension would have extended the due date for a response to May 31, 2021.
[5] The OIC received a complaint on December 4, 2020, questioning the time extension claimed. The OIC investigated this complaint under file 5820-02519. As a result of the investigation, the OIC determined that the time extension was valid and the length of time claimed was reasonable. The OIC reported its findings of not well founded on March 5, 2021. Based on this valid and reasonable extension of time, the new due date for a response was extended to May 31, 2021.
[6] On October 12, 2021, the OIC received the current complaint, which confirmed that CSIS had ultimately failed to respond to the complainant by the extended due date.
Subsection 10(3): deemed refusal of access
[7] Under subsection 10(3), when institutions do not respond to an access request within either 30 days or at the end of a period for which they took a valid time extension, they are deemed to have refused access to the requested records.
Is CSIS in deemed refusal pursuant to subsection 10(3) of the Act?
[8] Given that CSIS did not respond to the request by the extended deadline, it is deemed to have refused access pursuant to subsection 10(3). This refusal of access is ongoing and will continue until such time that CSIS fully responds to the access request.
[9] Based on CSIS’ representations, the main causes of the delay are attributed to outstanding consultations with the RCMP. The RCMP encountered several roadblocks in reviewing and processing classified records. In addition, the RCMP mistakenly uploaded incorrect records that were sent for review by their Offices of Primary Interest (OPIs). As a result, the RCMP was required to restart their entire consultation process. Operational challenges posed by the COVID-19 pandemic have also significantly affected the time needed by CSIS to complete the processing of the request.
[10] CSIS advised that because the classified information contained within the records is heavily intertwined between the two institutions, CSIS preferred to wait for recommendations from the RCMP prior to responding to the access request. The RCMP, however, asked that they be given additional time until January 28, 2022, to complete their recommendations. CSIS, in turn, indicated that in order to ensure that consultations do not unduly delay access, it would process the records without the benefit of the RCMP’s recommendations. However, despite this expressed intention to avoid undue delay, CSIS went on to state that it will issue its final response to the complainant by February 28, 2022 – a month after the date by which the RCMP had proposed to respond to the consultation.
[11] CSIS has not adequately addressed the delay in advancing the processing of the request. CSIS has also failed to provide any explanation in support of why an additional month (beyond the consultation response date proposed by the RCMP and rejected by CSIS on the basis that it would unduly delay access) is now required to respond to the request.
[12] To date, the complainant has waited for over a year for a complete response; eight months have passed since the expiry of the time extension claimed, which the OIC had found to be reasonable. This lack of responsiveness is in clear contravention to CSIS’ obligations under the Actand undermines the credibility of the access system.
Result
[13] The complaint is well founded.
Order
Under subsection 36.1(1) of the Act, I order that the Minister of Public Safety and Emergency Preparedness:
1. Complete the processing of the access request 117-2020-223 and provide a response to the access request by no later than 36 business days after the date of the Final Report.
2. Email a copy of the response letter to the Office of the Information Commissioner’s Registrar (Greffe‐Registry@oic‐ci.gc.ca).
On December 23, 2021, I issued my initial report to the Minister of Public Safety and Emergency Preparedness setting out my intended order and asking that he advises me of the action he has taken or proposes to take to implement my intended order, or provides the reasons why he will not take any action.
The due date for the Minister to respond to my initial report was January 21, 2022. I have unfortunately not received a response from the Minister.
Section 41 of the Act provides a right to any person who receives this report to apply to the Federal Court for a review. Complainants and institutions must apply for this review within 35 business days after the date of this report. The person who applies for a review must 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.