Health Canada (Re), 2024 OIC 36
Date: 2024-07-02
OIC file number: 5822-06592
Access request number: A-2022-001028
Summary
The complainant alleged that Health Canada 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 internal and external records referenced in a Regulatory Impact Analysis Statement for the Regulations Amending the Tobacco Products Regulations. The allegation falls under paragraph 30(1)(a) of the Act.
During the investigation, the Office of the Information Commissioner (OIC) was advised that 20,250 pages of responsive records were received. The OIC noted that information management deficiencies had resulted in a significant delay in the processing of the request. In addition, consultations within Health Canada, with other government departments, as well as with a number of third parties, would be required.
Heath Canada committed to responding to the request by July 17, 2030.
Considering the amount of time that had already passed without significant progress in processing this request and the overly long approval timeline, the proposed response date was found to be unreasonable. The Information Commissioner ordered the Minister of Health to provide a complete response to the access request no later than April 7, 2026.
Health Canada gave notice to the Commissioner that it would implement the order.
The complaint is well founded.
Complaint
[1] The complainant alleged that Health Canada 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 internal and external records referenced in a Regulatory Impact Analysis Statement for the Regulations Amending the Tobacco Products Regulations. The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
Time limits for responding to access requests
[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?
[4] 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.
[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] Health Canada received an access request on August 26, 2022. The original request was split into two. No extensions of time were taken. Therefore, the 30-day legislated deadline for a response was September 26, 2022.
[7] Health Canada did not respond to the access request by that date. I conclude, therefore, that Health Canada did not meet its obligation to respond to the request within the legislated time period. Health Canada is deemed to have refused access to the records under subsection 10(3).
[8] In its representations, Health Canada noted that 20,250 pages of responsive records have been received. Health Canada also indicated that there are many duplicated pages and identifying them has proven to be a challenge, given the number of records involved. In its investigations, the OIC has noted information management deficiencies, mainly resulting from the duplication of records, copies and versions and emails being kept on more than one platform, making it hard to retrieve records and process requests. Conversely, once the duplicates have been identified, a large number of duplicates could help to expedite processing of the request by reducing the number of pages to review.
[9] Health Canada indicated that they are currently identifying and preparing consultations for this request. Health Canada’s current priority is to identify the pages that will require consultation with its Legal Services Unit (LSU) and, at this time, it is anticipated that the consultation with LSU will contain approximately 6,000 pages.
[10] With respect to additional consultations, Health Canada has identified 10 other government departments (OGDs) to-date, and anticipates the completion of one consultation per month. Additional consultations may be identified as Health Canada continues to review the records in a more thorough fashion. It has also been determined that consultations with approximately 25 to 30 third parties will be required. Health Canada noted that the consultations have not been initiated at this time; however, these consultations will be conducted while the LSU consultation is taking place.
[11] Health Canada anticipates a first review of the records, including the LSU consultation, will be completed within the next two years.
[12] Health Canada has a statutory obligation to ensure that access requests are responded to in accordance with the requirements of the Act on records that are under its control. While recognizing that in some circumstances, it may be appropriate for an institution to consult another one for the purpose of responding to a request, the institution in receipt of the request bears the ultimate responsibility in ensuring that the consultation process does not unduly delay access.
[13] Health Canada indicated that there is a possibility that additional delays may be encountered as the classification of some records will likely require working with paper copies for the consultation with LSU. In addition, due to the complexity of the records, the final review and approval process will need to be performed at the Deputy Director level and is estimated to take six months to complete.
[14] Due to the remaining work on the file, its complexity and the workload of the Access to Information and Privacy unit, Health Canada has committed to respond to the request by July 17, 2030.
[15] The complainant has now been waiting over a year and a half 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. This lack of responsiveness is in clear contravention of Health Canada’s obligations under the Act and undermines the credibility of the access system.
[16] While there is a large volume of records to be reviewed and a need for the third-party consultations, considering the amount of time that has already passed without significant progress in processing this request and the overly long approval timeline, I find the proposed response date to be unreasonable.
Outcome
[17] The complaint is well founded.
Order
I order the Minister of Health to provide a complete response to the access request no later than April 7, 2026.
Initial report and notice from institution
On May 21, 2024, I issued my initial report to the Minister setting out my order.
On June 19, 2024, the Executive Director of the Access to Information and Privacy Division gave me notice that Health Canada would be implementing my order. Health Canada has reprioritized workloads in order to concentrate on this request, and it was noted that it may not be able to conduct all necessary consultations, potentially resulting in heavier application of exemptions. Additionally, Health Canada advised that the third-party consultations will be conducted; however, it is unknown if any of the third parties will invoke their rights under section 44 of the Act to apply to the Federal Court for review.
I would like to remind the Minister that Health Canada has a statutory obligation to ensure that access requests are responded to in accordance with the requirements of the Act on records that are under its control. Health Canada must ensure that it conducts a comprehensive and thorough analysis, with consultations undertaken as needed on specific elements. Regardless of whether or not discretionary consultations are conducted, exceptions to the right of access should be limited and specific, as required by the Act.
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.