Department of Justice Canada (Re), 2022 OIC 21

Date: 2022-04-21
OIC file number: 5821-01072
Institution file number: A-2021-00161.ST

Summary

The complainant alleged that the 2,280-day time taken by Department of Justice Canada (Justice) to respond to a request under the Access to Information Act is unreasonable.

Justice notified the complainant that the response would require an additional 2,280 days beyond the original 30 days pursuant to paragraphs 9(1)(a) and 9(1)(b) of the Act to complete the processing of the request.

Justice did not show that it met all the requirements of paragraph 9(1)(a), in particular it did not sufficiently justify the length of the extension claimed.

The Information Commissioner ordered the Minister of Justice to provide a final response forthwith.

Justice gave notice to the Commissioner that it would comply with her order and respond to the request forthwith.

The complaint is well founded.

Complaint

[1]      The complainant alleged that the 2,280-day time taken by Department of Justice Canada (Justice) to respond to a request under the Access to Information Act is unreasonable.

Investigation

[2]      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 time they have to respond by meeting the requirements of section 9.

[3]      On May 31, 2021, Justice received a request for information related to a new regulator to regulate online platforms and harmful images shared without consent.

[4]      Justice placed the file on hold from June 8, 2021 to June 17, 2021, in order to obtain clarifications from the complainant. This extended the 30-day statutory deadline for Justice to respond to July 9, 2021.

[5]      On July 9, 2021, Justice notified the complainant that it required an additional 2,280 days beyond the original 30 days pursuant to paragraphs 9(1)(a) and 9(1)(b) of the Act to complete the processing of the request. If valid, this would extend the due date to October 6, 2027.

[6]      The Office of the Information Commissioner (OIC) received the complaint on July 13, 2021.

Paragraph 9(1)(a): extension of time due to volume of records

[7]      Paragraph 9(1)(a) allows institutions to extend the 30 days they have to respond to an access request when they can show the following: 

• the request is for a large number of records or requires searching through a large number of records; 
• meeting the 30‐day deadline would unreasonably interfere with the institution’s operations; and
• the extension of time is for a reasonable period, given the circumstances.

[8]      To claim the extension, institutions must notify the requester of the following no more than 30 days after receiving the access request:

• they are extending under paragraph 9(1)(a) the time they have to respond to the access request;
• the duration of the extension; and
• the requester has the right to complain to the Information Commissioner about the extension.

Is the request for a large volume of records, or did the request necessitate a search through a large volume of records?

[9]      At the time that Justice claimed its extension of time, it estimated that over 30, 000 pages might be identified as responsive to the request. These records, however, were expected to include some duplications.

[10]    Justice arrived at this estimated page count based on the number of megabytes of digital file information identified by one of the Offices of Primary Interest (OPI), in addition to the number of pages identified by other OPIs.

[11]    I am satisfied that the estimated number of pages identified as either responsive to the request or needing to be culled for responsive non-duplicative records, constitutes a large volume of records. The first requirement of a valid extension under paragraph 9(1)(a) is therefore met.

Would responding to the request within 30 days unreasonably interfere with Justice’s operations? 

[12]    In Justice’s initial representations to the OIC, it explained that it would require a minimum of 60 full-time analysts processing the responsive records in order to respond within 30 days. This would amount to quadruple the number of analysts working in Justice’s Access to Information and Privacy (ATIP) office, working exclusively on this one request.

[13]    I am also satisfied that, given the large volume of records, responding to this request within 30 days would have unreasonably interfered with Justice’s operations.

Is the length of the time extension reasonable?  

[14]    According to Justice’s representations, the 2,190-day time extension claimed pursuant to paragraph 9(1)(a) was based on the estimated  responsive records on a “sensitive and complex subject” that requires “specialized” internal stakeholder consultation.

[15]    Justice explained that in order to respond to the request they will need to involve analysts with significant experience on the subject matter of the request, as well as engage additional human and IT resources. Justice further explained that given the complexity, sensitivity and varied security classification type of information being sought, this request will require the involvement of experienced analysts working both remotely and onsite.

[16]    Justice stated that in determining the appropriate extension, Justice considered not only the expected volume and complexity of the sensitive records, but also the operational realities surrounding the need for specialized internal stakeholder consultation. According to Justice, there is a need to consult more than ten internal and external stakeholders in order to ensure the appropriate application of the exemptions and exclusions in accordance with the Act.

[17]    Justice maintained that the extension was not based on any institutional policy to limit the processing of access pages per month. However, it did state that Treasury Board of Canada Secretariat’s guidance regarding the processing of 500 pages per month is a consideration when determining how to establish reasonable extensions on complex files given that it can be challenging to estimate time required at the early stages of a file.

[18]    Justice summarized the 2,190-day (6-year) time extension as follows: 

1. Identification of consultations and duplicate assessment for a responsive package– 30 weeks.
2. Analysis of the records – 150 weeks.
3. Projected internal consultation with subject matter expert and OPI – 90 weeks.
4. Final quality assurance and decision – 42 weeks.

[19]    Based on the information and representations provided, I am not convinced that the time extension is for a reasonable period of time.

[20]    Given the volume of records at issue and their stated complexity, I accept that the work that needs to be done to analyze the records, identify subject matter experts and offices of primary interest and then undertake internal consultations will take time. However, I am not satisfied that Justice has sufficiently established the link between the justifications advanced and the length of the extension claimed.

[21]    For example, Justice did not explain how it arrived at the duration of the various steps envisioned to complete the processing of the request, nor did Justice explain why certain steps could not, in whole or in part, be conducted concurrently with other steps. Justice offered no details upon which it arrived at the need for a 42 week timeframe to conduct “Final quality assurance and decision”, after 240 weeks being allotted for an analysis of the records and internal consultations.

[22]    No evidence was provided which demonstrated that Justice had conducted a sampling of the records that it had retrieved within 30 days of the request’s receipt in order to: gauge the repetitiveness of the records; determine what exemptions would prospectively be at issue and the complexity of their applications; determine what proportion of the sampling would require input from subject matter experts / internal stakeholders; or, determine how many pages of this sampling were capable of being reviewed / analyzed per day.

[23]    In the absence of further explanation regarding the rationale for the lengths of the various steps claimed to be needed to complete the processing of the request, I cannot conclude that the calculation of the time extension under paragraph 9(1)(a) is sufficiently rigorous, logical and supportable.

[24]    Furthermore, based on the information and representations received, I cannot conclude that providing access to the records within any materially lesser period of time than the one asserted would unreasonably interfere with its operations. Although Justice asserted that processing the request in a lesser time frame would unfairly monopolize resources, impede Justice’s normal operations and jeopardize other Canadians’ right of access, this assertion was not supported by any specific information regarding: the overall workload of Justice’s ATIP office or OPIs, the ATIP office’s staffing level, the average number of pages processed by the ATIP office per year; the relative complexity of this request in comparison to others based on a sampling of the records at issue; or how this request fits within the broader context of Justice’s workload and other priorities.

[25]    In light of the foregoing, I am of the view that the extension taken pursuant to paragraph 9(1)(a) is not reasonable.

Paragraph 9(1)(b): extension of time for consultations

[26]    Paragraph 9(1)(b) allows institutions to extend the 30 days they have to respond to an access request when they can show the following:

• they need to consult with other institutions or bodies about the requested records; and
• those consultations cannot reasonably be completed within 30 days; and
• the extension of time is for a reasonable period, given the circumstances.

[27]    To claim the extension, institutions must notify the requester of the following no more than 30 days after receiving the access request:

• they are extending under paragraph 9(1)(b) the time they have to respond to the access request;
• the duration of the extension; and
• the requester has the right to complain to the Information Commissioner about the extension.

Are the consultations necessary? 

[28]    Based on the information available at the time that the extension was taken, Justice knew that the records would have to be reviewed by at least two other government departments.

[29]    I am satisfied that given the nature of the records, consultations with other government departments are necessary.

Is the time extension for a reasonable period? 

[30]    In its representations, Justice explained that they used standard response times for the two institutions that needed to be consulted and that additional consultations with other departments may also be required.

[31]    I am of the view that taking 90 days pursuant to paragraph 9(1)(b) to consult two separate departments is reasonable.

Subsection 10(3): deemed refusal of access

[32]    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 time they had to respond, they are deemed to have refused access to the requested records.

[33]    Given that Justice did not establish that it’s extension of time was reasonable, therefore the extension is invalid and Justice is deemed to have refused access pursuant to subsection  10(3).

Result

[34]    The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the Minister of Justice to:

• Provide a final response forthwith.
• Email a copy of the response letters to the Office of the Information Commissioner’s Registrar (Greffe‐Registry@oic‐ci.gc.ca).

On January 18, 2022, I issued my initial report to the Minister of Justice setting out my intended order.

On February 18, 2022, the Chief Financial Officer of Justice confirmed that Justice intends to comply with my order and respond to the request forthwith. Considering the work that has already been done, Justice expects that all records will be processed and a final decision will be issued by March 31, 2024, thereby reducing the initial timeline by almost four (4) years.

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.