Environment and Climate Change Canada, (Re), 2024 OIC 33
Date: 2024-06-21
OIC file number: 5823-02086
Access request number: A-2023-00228
Summary
The complainant alleged that Environment and Climate Change Canada (ECCC) did not respond within the extended period under subsection 9(1) of the Access to Information Act to an access request. The request was for records related to meetings and the lobbying efforts of the Pathways Alliance Inc., from January 14, 2023, to May 4, 2023. The allegation falls under paragraph 30(1)(a) of the Act.
The investigation determined that ECCC did not respond to the access request when the time extension expired. The delay was caused by a lack of responsiveness from two offices of primary interest (OPIs).
The Information Commissioner ordered that ECCC provide a response to the access request no later than August 7, 2024. She also recommended that the Minister of Environment develop proper processes and procedures to ensure that ECCC OPIs will abide by their responsibilities to provide responsive records in a timely fashion to ECCC’s ATIP Office and that he develop performance indicators to hold senior officials accountable for delays in providing responsive records to ECCC’s ATIP Office.
ECCC gave notice to the Commissioner that it would be implementing the order and detailed the steps it is taking to implement the recommendations.
The complaint is well founded.
Complaint
[1] The complainant alleged that Environment and Climate Change Canada (ECCC) did not respond within the extended period under subsection 9(1) of the Access to Information Act to an access request. The request was for records related to meetings and the lobbying efforts of the Pathways Alliance Inc., from January 14, 2023, to May 4, 2023. The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
Time limits for responding to an access request
[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 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).
[3] Nevertheless, the institution is still required to provide a response to the access request.
What is a response?
- 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.
[4] 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.
[5] 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?
[6] ECCC received the access request on May 4, 2023. On June 9, 2023, ECCC extended the period it had to respond by 120 days under paragraphs 9(1)(a), (b) and (c), making the time limit to respond October 10, 2023.
[7] ECCC did not respond to the access request by that date. I conclude that ECCC did not meet its obligation to respond to the request within the extended period. ECCC is deemed to have refused access to the requested records under subsection 10(3).
[8] The investigation revealed that approximately 576 pages of responsive records were located. ECCC stated that it tasked eight program areas to retrieve records as of May 9, 2023. It added that its Access to Information and Privacy (ATIP) Office had to wait until March 26, 2024, to receive all responsive records from the program areas.
[9] ECCC declared the review was completed on May 2, 2024. The next day, it launched a consultation on four pages with Innovation, Science and Economic Development Canada (ISED). It expected ISED to respond by May 23, 2024.
[10] In addition, ECCC mentioned 4 third-party consultations that it expected to send by May 10, 2024. It also mentioned an ongoing internal consultation might lead to an additional third-party consultation. ECCC informed the Office of the Information Commissioner that it plans to provide a complete response to the access request by August 7, 2024.
[11] After they were tasked, the Environmental Protection Branch (EPB) and the Carbon Market Bureau (CMB) took more than 10 months to retrieve the documents. I find the delay taken by the EPB and CMB to retrieve all relevant records unacceptable. The lack of responsiveness from the EPB and CMB has affected ECCC’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 Environment and Climate Change Canada, to ensure that this is understood and respected within the institution.
[12] Considering the above and given the need for the ongoing consultation, I find August 7, 2024, to be reasonable.
Outcome
[13] The complaint is well founded.
Order and recommendations
I order the Minister of Environment to provide a complete response to the access request no later than August 7, 2024.
I recommend that the Minister of Environment:
- develop proper processes and procedures to ensure that ECCC OPIs will abide by their responsibilities to provide responsive records in a timely fashion to ECCC’s ATIP Office
- develop performance indicators to hold its senior officials accountable for delays in providing responsive records to ECCC’s ATIP Office.
Initial report and notice from institution
On May 21, 2024, I issued my initial report to the Minister setting out my order.
On June 17, 2024, the Deputy Minister gave me notice that ECCC would be implementing my order. He also declared that ECCC has strengthened its Branch compliance reporting and reminded its Executive Management Committee of the importance of adhering to the legislative timeframes set forth in the Act. He also explained that ECCC will be enhancing its ATIP awareness training and is implementing new technology to facilitate interactions between the ATIP Division and program officials, as well as to expedite the retrieval and review process.
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.