Employment and Social Development Canada (Re), 2024 OIC 22
Date : 2024-05-02
OIC file number : 5823-02130
Access request number : A-2023-00566
Summary
The complainant alleged that Employment and Social Development Canada (ESDC) did not respond to the access request within the legislated 30-day period. The request was for information regarding whether ESDC is the holder of the information on the work done since 2014 in the grants and contributions program for workplace opportunities and removing barriers to equity, and the concepts it selected to receive funding. The allegation falls under paragraph 30(1)(a) of the Act. In addition, the complainant alleged that ESDC improperly requested additional clarifications to process the above-noted access request. The allegation falls under paragraph 30(1)(f).
During the investigation, the Office of the Information Commissioner (OIC) learned that ESDC engaged in communication with the requester on a number of occasions to clarify and/or narrow the scope of the access request. Upon review of the original access request, the OIC concluded that seeking clarification to enable an experience employee to identify records with a reasonable effort is different from asking the requester to narrow the scope of the access request in order to, for example, reduce the number of responsive records. Relying on section 6 (Request for access to record) to decline to accept access requests simply because they involve a large volume of records is not a proper use of section 6.
The OIC determined that sufficient detail had been provided from the outset. The numerous interactions between ESDC and the requester contributed to the delay in providing a full and complete response to the requester within the legislated time limit. As no extension of time had been initiated by ESDC, the deadline for responding to the request was July 3, 2023.
The Information Commissioner ordered that a response be provided to the requester by no later than August 30, 2024.
ESDC gave notice to the Commissioner that it would implement the Order.
The complaint is well founded.
Complaint
[1] The complainant alleged that Employment and Social Development Canada (ESDC) 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 information regarding whether ESDC is the holder of the information on the work done since 2014 in the grants and contributions program for workplace opportunities and removing barriers to equity, and the concepts it selected to receive funding. The allegation falls under paragraph 30(1)(a) of the Act.
[2] In addition, the complainant alleged that ESDC improperly requested additional clarifications to process the above-noted access request. This allegation falls under paragraph 30(1)(f).
Investigation
Section 6: Accepting access requests
[3] Institutions must accept an access request that meets all of the following requirements under section 6:
- It must be in writing.
- It must be made to the institution that has control of the requested records.
- It must provide enough detail that experienced institutional employees could identify relevant records with a reasonable effort.
[4] If the access request does not provide enough detail for experienced employees of the institution to identify records with a reasonable effort, the institution must promptly seek clarification from the requester, in keeping with its obligations under subsection 4.2(1).
[5] If the access request remains unclear after the institution has made every reasonable effort to seek clarification, the institution does not have to make further efforts to clarify the request and may choose not to accept it. When the requester provides enough detail, the institution must accept the request.
Was ESDC justified in refusing to accept the request pursuant to section 6 of the Act?
[6] ESDC received an informal access request on May 29, 2023. ESDC sent an acknowledgment email to the requester on June 8, 2023, noting that a formal request had been opened on June 1, 2023.
[7] On June 12, 2023, the requester replied to ESDC’s acknowledgment letter and confirmed the key areas of interest and asking if the $5 formal access request fee was to be submitted.
[8] ESDC contacted the requester on June 19, 2023 and offered an updated request text for consideration by the requester. The requester replied immediately with slightly updated wording and reiterated the keys areas of interest. ESDC responded on June 20, 2023, indicating that they would proceed with the amended June 19, 2023 text provided by the requester and waived the $5 fee.
[9] ESDC contacted the requester again on June 30, 2023 and on September 1, 2023 requesting further clarification of the types of documents being sought. ESDC put the request on hold on both occasions.
[10] Seeking clarification to enable an experience employee to identify records with a reasonable effort is different from asking the requester to narrow the scope of the access request in order to, for example, reduce the number of responsive records. Relying on section 6 to decline to accept access requests simply because they involve a large volume of records is not a proper use of section 6.
[11] I am satisfied that the access request provided sufficient detail for an experienced employee to identify records with a reasonable effort. Consequently, ESDC should have accepted the request, without the need for repeated clarification. I conclude that the access request meets the requirements of section 6.
Did the institution respond within the time limits?
Time limits for responding to access requests
[12] 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).
[13] Nevertheless, the institution is still required to provide a response to the access request.
What is a response?
[14] 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.
[15] In specific circumstances, the institution may refuse to confirm or deny in its response whether records exist under subsection 10(2).
[16] ESDC received the access request on June 1, 2023, but neither extended the period within which it had to respond to the request under paragraphs 9(1)(a), (b) or (c), nor transferred the request. This means that the 30-day period under section 7 still applied, making the time limit to respond July 3, 2023.
[17] ESDC did not respond to the access request by that date. I conclude, therefore, that ESDC did not meet its obligation to respond to the request within the extended period. ESDC is deemed to have refused access to the requested records under subsection 10(3).
[18] Two Offices of Primary Interest (OPIs) have been tasked, however, no responsive records have been received to-date. It is estimated that approximately 1,300 pages of records will be received from one of the OPIs (the Program Operations Branch). The other OPI (the Labour Branch) has not provided records, and it was noted that this particular sector is attending to numerous requests and their responses are expected to take longer to receive.
[19] I find the delay taken by the OPIs to retrieve all relevant records unacceptable. The lack of responsiveness from the OPIs has affected ESDC’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 the Minister of Employment, Workforce Development and Official Languages, to ensure that this is understood and respected within the institution.
[20] While I acknowledge ESDC’s difficulties, the complainant has now been waiting over 9 months for a response to their access request. Any additional day that is taken to respond to this request is another day by which the complainant’s rights of access are being denied.
[21] After further consideration, ESDC noted that they believe a full and complete response would be available to the requester by August 30, 2024.
[22] Considering the volume of the records to be received and reviewed, the possibility for consultations and how long the response to the access request has been outstanding, I find that ESDC must issue the response as soon as possible but no later than August 30, 2024.
Outcome
[23] The complaints are well founded.
Order
I order the Minister of Employment and Social Development to provide a complete response to the access request no later than August 30, 2024
Initial report and notice from institution
On March 21, 2024, I issued my initial report to the Minister setting out my order.
On April 19, 2024, ESDC Acting Manager gave me notice that the ESDC would be implementing my order.
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.