Communications Security Establishment Canada (Re), 2024 OIC 20
Date: 2024-04-23
OIC file number: 5823-02017
Access request number: A-2023-00017 (EA_2023_024460)
Summary
The complainant alleged that Communications Security Establishment Canada (CSE) did not respond to an access request submitted under the Access to Information Act within the 30-day period, as required by section 7. The request was for records in the following files (listed on page 173 of release A-2020-00042): - A220 Committees – General File 168 - Assessment Review Group (ARG) - A220 Committees – General File 168-1 - General - A220 Committees – General File 168-16 - ARG Record of Decision - A220 Committees – General File 168-17 – ARG Notes. The allegation falls under paragraph 30(1)(a) of the Act.
The investigation determined CSE did not respond by the required date and is deemed to have refused access to the requested records under subsection 10(3). The delay was caused by both neither the review of records nor the developing of consultation packages to be sent the relevant institutions occurring in a timely manner.
The Information Commissioner ordered that CSE provide a response to the access request no later than the 72nd business day following the date of the final report.
CSE gave notice to the Commissioner that it would not be implementing the order and would instead apply for a review by the Federal Court.
The complaint is well founded.
Complaint
[1] The complainant alleged that Communications Security Establishment Canada (CSE) did not respond to an access request within the 30‑day period set out in section 7 of the Access to Information Act. The request was for records in the following files (listed on page 173 of release A-2020-00042): - A220 Committees – General File 168 - Assessment Review Group (ARG) - A220 Committees – General File 168-1 - General - A220 Committees – General File 168-16 - ARG Record of Decision - A220 Committees – General File 168-17 – ARG Notes.
[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] CSE received the request on June 26, 2023, and neither extended the period within which it had to respond to the request under subsection 9(1) nor transferred the request. This means that the 30-day period to respond under section 7 still applied, making the due date July 26, 2023.
[8] CSE did not respond to the access request by that date. I conclude, therefore, that CSE is deemed to have refused access to the requested records under subsection 10(3).
[9] According to its representations, CSE did not send out a tasking for the retrieval of records until December 1, 2023. CSE’s access to information and privacy (ATIP) unit confirmed that on December 18, 2023, it received approximately 1,600 pages of responsive historical records. These records are in hard copy, and CSE has not begun the transfer from print to electronic versions, nor has it sent records for consultation as indicated in their representations.
[10] CSE indicated in its representations to the Office of the Information Commissioner (OIC) that several other government institutions will need to be consulted prior to responding, including the Privy Council Office (PCO), the Canadian Security Intelligence Service, National Defence, Global Affairs Canada, the Canada Border Services Agency, among others.
[11] The largest consultation that CSE is anticipating to undertake is with PCO on approximately 1,200 pages of records. Because of several factors, including workload, resources and other competing priorities, CSE advised it has yet to initiate the consultations or start a comprehensive review of records.
[12] In light of the remaining work, CSE advised it would provide a complete response to the request by January 24, 2025.
[13] I find the delay taken by CSE to advance the processing of the request unacceptable.
[14] Any additional time that is taken to respond to this request is another day by which the complainant’s rights of access are being denied. This lack of responsiveness is in clear contravention of CSE’s obligations under the Act and undermines the credibility of the access system.
[15] Considering the length of time that the response to the access request has been outstanding, and the remaining work left to complete the processing of the request, I find that CSE must respond to the request without undue delay.
Outcome
[16] The complaint is well founded.
Order
I order the Minister of National Defence to provide a complete response to the access request no later than 72 business days after the date of the final report.
Initial report and notice from institution
On March 1, 2024, I issued my initial report to the Minister of National Defence setting out my order.
On April 12, 2024, the CSE Director, Transparency and Information Sharing, gave me notice that CSE would not be implementing my order. The Director confirmed that CSE will apply to the Federal Court for a review within the time limit set out in subsection 41(2) of the Act.
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.