WxT Language switcher

Health Canada (Re), 2024 OIC 10

Date: 2024-03-26

OIC file number: 5822-07913

Institution file number: A-2022-001482

Summary

The complainant alleged that the length of the extension of time Health Canada took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for information concerning an application for religious exemption to serve ayahuasca under the provisions of section 56 of the Controlled Drugs and Substances Act. The complaint falls within paragraph 30(1)(c) of the Act.

Health Canada claimed a 1,000-day extension of time under paragraphs 9(1)(a) and 9(1)(b) to complete the processing of the request. If the extension were valid, the time limit for the response would be December 19, 2025.

During the investigation, Health Canada showed that it met all the requirements of paragraphs 9(1)(a) and (b), in particular that the calculation of the time extension was sufficiently logical and supportable, that providing access to the records within any materially lesser period of time than the one asserted would unreasonably interfere with its operations, and that the consultations could not reasonably be completed within 30 days.

Health Canada demonstrated that the extension was reasonable and the due date to respond to the access request remains December 19, 2025. The Information Commissioner invited the complainant and Health Canada to collaborate to reduce the scope of the request so that fewer records will need to be processed and a response to the request could be released sooner.

The complaint is not well founded.

Complaint

[1]      The complainant alleged that the length of the extension of time Health Canada took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for information concerning an application for religious exemption to serve ayahuasca under the provisions of section 56 of the Controlled Drugs and Substances Act. The complaint falls within paragraph 30(1)(c) of the Act.

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 30-day period for responding by meeting the requirements of section 9.

[3]      Health Canada received the access request on February 23, 2023 and, within 30 days, notified the complainant that pursuant to paragraphs 9(1)(a) and 9(1)(b), an additional 1000 days would be required to complete the processing of the request. If the extension were valid, the time limit for the response would be December 19, 2025.

Extensions of time

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

[4]      Paragraph 9(1)(a) allows institutions to extend the 30-day period for responding 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 time limit would unreasonably interfere with the institution’s operations; and
  • the extension of time is for a reasonable period, having regard to the circumstances.

Did the institution show that it met the requirements of paragraph 9(1)(a)?

Was the access request for a large number of records?

[5]      Health Canada stated that the Office of Primary Interest (OPI) that was tasked to search for records provided 14,278 pages of potentially responsive records to the Access to Information and Privacy (ATIP) unit for processing. Health Canada demonstrated that the request is for a large number of records.

Would meeting the 30-day deadline unreasonably interfere with the institution’s operations?

[6]      Health Canada explained that in addition to the volume of records to process, the nature of those records had to be considered. The records concerned an application for religious exemption that was still under review and which had the potential to set a precedent for future applications. Therefore, mere mentions of this application were included in many other types of documents than the application itself and involved several teams and many employees, making the collection and the review of the records onerous to the offices impacted by the request.

[7]      Besides the application itself, the records included various other types of documents including advice to decision-makers and analysis documents. In addition, several records were marked as secret or were subject to a litigation hold, adding a further level of effort and complexity in processing. The ATIP unit then had to consider recommendations from the program area about exemptions to be applied to portions of the records.

[8]      Health Canada identified that extensive internal consultations and discussions would be required in order to fully understand the records’ intricacies and sensitivities, and explained that on a file as voluminous as this one, with evolving considerations and decisions that were still being made, this would be a cumbersome and time-consuming process.

[9]      Processing this many records and responding to the access request within 30 days—assuming it were even possible—would have monopolized a significant portion of Health Canada’s resources and would have caused a negative impact on the processing of other requests. Consequently, completing the necessary work would unreasonably interfere with the institution’s operations.

[10]    Health Canada added that at the time this time extension was taken, its ATIP unit was experiencing a significant increase in the volume of access requests, in conjunction with a lack of resources in the Public Interest team’s portfolio, within which this request fell. While Health Canada has made every effort possible to increase operational capacity, including professional development of the current staff and the hiring of additional staff, the institution continues to face substantial delays in processing most requests.

Is the extension for a reasonable period?

[11]    Under paragraph 9(1)(a), Health Canada extended the time to respond by an additional 900 days. Health Canada considered several factors to ensure the extension would be as short as possible:

  • the large volume of records (over 14,000 pages);
  • the complexity and the sensitivity of the records; and
  • how long the Access to Information and Privacy unit said it would need to analyze and apply exemptions to that many records, based on the actual workload of the analyst and their team and without causing a negative impact on other requests.

[12]    Health Canada applied sufficient rigour and logic as part of a serious effort to determine the duration of the extension of time, making 900 days reasonable and justified in the circumstances.

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

[13]    Paragraph 9(1)(b) allows institutions to extend the 30-day period for responding to an access request when they can show the following:

  • that they need to carry out consultations on the requested records;
  • those consultations cannot reasonably be completed within 30 days; and
  • the extension of time is for a reasonable period, having regard to the circumstances.

Did the institution show that it met the requirements of paragraph 9(1)(b)?

Were the consultations necessary?

[14]    Health Canada advised the Office of the Information Commissioner (OIC) that the OPI recommended consulting Health Canada’s Legal Services Unit, considering that the subject matter of the request is an application for religious exemption with a contentious context and a potential impact on future applications.

[15]    In light of the above, I am satisfied that consultations are necessary.

Could the consultations reasonably be completed within 30 days?

[16]    Health Canada explained that it could not reasonably complete the consultations within the initial 30-day timeframe considering the volume of records. Even for a fraction of those records, the Legal Services Unit would require a reasonable amount of time to review the information and produce their recommendations to the Access to Information and Privacy unit.

[17]    As a result, I am satisfied that the required consultation with the Legal Services Unit could not reasonably be completed within 30 days.

Is the time extension for a reasonable period?

[18]    Under paragraph 9(1)(b), Health Canada extended the timeframe to respond by an additional 100 days. The length of time was based on the number of pages potentially requiring consultation with the Legal Services Unit. Health Canada indicated that further consultations could potentially have to be conducted as well.

[19]    Accordingly, I am satisfied that the length of time taken pursuant to paragraph 9(1)(b) was for a reasonable period.

[20]    I conclude that Health Canada showed that it met all the requirements of paragraphs 9(1)(a) and (b). Therefore, the extension is reasonable and the due date to respond to the access request remains December 19, 2025.

[21]    This being said, I invite the complainant and Health Canada to collaborate to reduce the scope of the request so that fewer records will need to be processed and a response to the request could be released sooner.

Outcome

[22]    The complaint is not well founded.

Review by the Federal Court

When a complaint falls within the scope of 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. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.

Date modified:
Submit a complaint