Crown-Indigenous Relations and Northern Affairs Canada (Re), 2024 OIC 39
Date: 2024-07-11
OIC file number: 5823-02223
Access request number: A-2023-00069
Summary
The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) did not respond to an access request within the 30‑day period set out in section 7. The request was for copies of the following documents described in briefing note M20101, “Chronology of Litigation re. CCEPIRSS”, previously released in A-2021-00209. The allegation falls under paragraph 30(1)(a) of the Act.
The Investigation determined CIRNAC did not respond by the required date and is deemed to have refused access to the requested records under subsection 10(3). The Information Commissioner found the delay taken by the Resolution & Partnerships unit to retrieve all relevant records, despite multiple follow-ups by its Access to Information and Privacy office, unacceptable.
The Information Commissioner ordered that CIRNAC complete the retrieval of all records responsive to the request and provide a response to the access request no later than the 36th business day following the date of the final report. The Information Commissioner also recommended the development of performance indicators to hold its senior officials accountable as well as proper processes and procedures to ensure that CIRNAC’s Offices of Primary Interest abide by their responsibilities to provide responsive records in a timely fashion.
CIRNAC gave notice to the Commissioner that it would be implementing the order. CIRNAC did not indicate whether it would implement the recommendations stemming from this investigation.
The complaint is well founded.
Complaint
[1] The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) 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: copies of the following documents described in briefing note M20101, “Chronology of Litigation re. CCEPIRSS”, previously released in A-2021-00209: 1) November 4, 2015: Correspondence from Ron Kidd to Minister Carolyn Bennett. 2) December 17, 2015: Response to Mr. Kidd from Assistant Deputy Minister Andrew Saranchuk. 3) December 29, 2015: Follow-up letter from Mr. Kidd to Minister Bennett. 4) March 19, 2016: Response from Assistant Deputy Minister Andrew Saranchuk to Mr. Kidd’s follow-up questions. (This letter was quoted by the Globe and Mail on April 17, 2016.) Also, a letter from Minister Bernard Valcourt to Mr. Kidd, dated January 15, 2014, and the letter to which Minister Valcourt was responding. (The Valcourt letter is quoted in the Globe and Mail article in Annex H to briefing note M20101.).
[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] CIRNAC received the access request on July 5, 2023, and neither extended the legislated period under section 9, nor transferred the request, making the time limit to respond August 4, 2023.
[8] CIRNAC did not respond to the access request by that date. I conclude, therefore, that CIRNAC did not meet its obligation to respond to the request within the legislated period. CIRNAC is deemed to have refused access to the requested records under subsection 10(3).
[9] According to representations provided by CIRNAC over the course of the investigation, only one Office of Primary Interest (OPI), Resolution & Partnerships, was tasked on July 13, 2023. As of the return of CIRNAC representations, the OPI in question has yet to complete the retrieval of records and provide them to the CIRNAC’s Access to Information and Privacy (ATIP) office, despite multiple follow-ups made by the ATIP team. As such, the CIRNAC ATIP team has been unable to initiate any review of records and, in turn, advance the processing of the request. To date, the total volume of responsive records, including the need for any consultations, is unknown.
[10] I find the delay taken by the Resolution & Partnerships unit to retrieve all relevant records unacceptable. The lack of responsiveness from this unit has affected CIRNAC’s ability to meet its obligation to ensure that this access request was responded to in accordance with the requirements of 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 CIRNAC, to ensure that this is understood and respected within the institution.
[11] 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 CIRNAC’s obligations under the Act and undermines the credibility of the access system.
[12] Considering the length of time that the response to the access request has been outstanding and CIRNAC’s responsibility to provide the complainant with a timely response, I find that CIRNAC must respond to the request without undue delay. While the Resolution & Partnerships unit has not confirmed the volume of responsive records, the request appears to be focussed on a few specific documents, all related to one briefing note, and at least one of which was previously released under the Act. Therefore, I am not convinced that this request is voluminous or that the records are difficult to locate or process
Outcome
[13] The complaint is well founded.
Order
I order the Minister of Crown-Indigenous Relations to provide a complete response to the access request no later than 36 business days after the date of the final report.
I recommend that the Minister:
- develop proper processes and procedures to ensure that CIRNAC OPIs will abide by their responsibilities to provide responsive records in a timely fashion to CIRNAC’s ATIP unit.
- develop performance indicators to hold its senior officials accountable for delays in providing responsive records to CIRNAC’s ATIP unit.
Initial report and notice from institution
On May 22, 2024, I issued my initial report to Minister of Crown-Indigenous Relations setting out my order.
On July 3, 2024, the Corporate Secretary of Crown-Indigenous Relations and Northern Affairs Canada gave me notice that CIRNAC would be implementing my order. In particular, she noted that a “new response to the complainant will be provided no later than 36 business days after the final report, in accordance with your recommendations and the Access to Information Act.” However, the Corporate Secretary’s reply does not address whether or how CIRNAC will implement my recommendations stemming from this investigation.
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.