Department of Justice Canada (Re), 2024 OIC 57
Date: 2024-08-16
OIC file number: 5822-04154
Access request number: A-2021-01099
Summary
The complainant alleged that The Department of Justice (JUS) did not respond within the 30-day time limit set out in section 7 of the Access to Information Act to an access request for all information the Department of Justice, the Prime Minister’s Office, Indigenous and Northern Affairs, the named employees and MP's have on Section 43 (S43) of the Criminal Code of Canada from November 1, 2015 to December 13, 2021. The allegation falls within paragraph 30(1)(a) of the Act.
The investigation determined JUS did not respond by the required date and is deemed to have refused access to the request records under subsection 10(3). The delay was caused by slow progress the reviewal stage of the access request’s processing.
The Information Commissioner ordered that JUS provide a complete response to the access request no later than July 19, 2024 or no later than the date on which the order takes effect in the event the July 19, 2024 date is not met.
JUS gave notice to the Commissioner that it would be implementing the order.
The complaint is well founded.
Complaint
[1] The complainant alleged that the Department of Justice Canada (Justice) 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:
All information the Department of Justice, the Prime Minister’s Office, Indigenous and Northern Affairs, the named employees and MP's have on Section 43 (S43) of the Criminal Code of Canada From November 1, 2015 to December 13, 2021. Briefing books containing internal discussions and messaging around S43, Policy briefings and analyses relating to S43, Guides for developing legislation relating to S43, Emails, meeting notes, letters and communications to and from Jody Wilson-Raybould, David Lametti, Carolyn Bennett, Filomena Tassi, Katie Telford, Geral Butts, Nathalie Drouin, François Daigle, Christyne Tremblay, Michael Vandergrift, Michael Wernick, Janice Charette, Matthew Mendelsohn, Malcom Brown, François Guimont, Colleen Swords, Hélène Laurendeau, on S43 or Corporal Punishment. Additionally all Research regarding S43, Extent of consultation on S43 and what was said as part of that consultation. Who supports and who opposes the removal of S43. Discussions of costing implications or potential voting demographics on the removal of S43. All list of lobbyists and organizations that objected to the removal of S43 and all emails, letters that were forwarded to the Department of Justice and the Prime Minister's Office.
[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] Justice received the access request on March 23, 2022, and neither extended the period within which it had to respond to the request under subsection 9(1) nor transferred the request. This means the 30-day period to respond under section 7 still applied, making the due date to respond April 22, 2022.
[8] Justice did not respond to the access request by this date. I conclude, therefore, that Justice did not meet its obligation to respond within the 30-day period. Justice is deemed to have refused access to the requested records under subsection 10(3).
[9] Justice advised the Office of the Information Commissioner (OIC) that the responsive records comprise 6,292 pages. To date, Justice has approximately 3,000 pages left to review as part of its processing efforts. On the pages already reviewed, consultations were required with the Office of the Federal Ombudsman for Victims of Crime, as well as with several internal Offices of Primary Interest.
[10] Justice informed the OIC that they are expediting the remaining review and approval processes and will provide the complainant with a complete response by July 19, 2024.
[11] Taking into account all of the above, I find that July 19, 2024, is a reasonable date by which to respond. However, in the event that Justice does not respond by its planned date, it must respond no later than the date on which my order to respond comes into effect.
Outcome
[12] The complaint is well founded.
Order
I order the Minister of Justice to provide a complete response to the access request on the 36th business day following the date of the final report.
Initial report and notice from institution
On July 3, 2024, I issued my initial report to the Minister of Justice setting out my order.
On July 26, 2024, the Acting Director of Access to Information and Privacy at Justice gave me notice that the Minister would be implementing my order. In an effort to comply with the order, Justice has transferred the file to a senior analyst and reallocated resources for final review.
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.