Immigration and Refugee Board of Canada (Re), 2022 OIC 42

Date: 2022-08-22
OIC file number: 5821-02667
Institution file number: A-2021-00820

Summary

The complainant alleged that the length of the extension of time Immigration and Refugee Board of Canada (IRB) took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for records produced on or after December 31, 2019, related to the updated version of the Weighing Evidence document available on the IRB’s website. The complaint falls under paragraph 30(1)(c) of the Act. IRB claimed a 1,295-day extension of time pursuant to paragraph 9(1)(a). If the extension were valid, the time limit for the response would be March 31, 2025. IRB could not show that it met all the requirements of paragraph 9(1)(a), in particular that the calculation of the time extension was sufficiently logical and supportable, or that providing access to the records within any materially lesser period of time than the one asserted would unreasonably interfere with its operations. Given that IRB did not establish that the requested extension of time was reasonable, the extension is invalid, and IRB is deemed to have refused access pursuant to subsection 10(3). The Information Commissioner ordered the Chairman of IRB to process all records within the scope of the request as soon as possible but no later than April 18, 2023. The Chairman of IRB gave notice to the Commissioner that it would be implementing her order.

The complaint is well founded.

Complaint

[1]      The complainant alleged that the time extension taken by the Immigration and Refugee Board of Canada (IRB) to respond to a request under the Access to Information Act is unreasonable. The request was for records produced on or after December 31, 2019, related to the updated version of a document, entitled Weighing Evidence, available on the IRB’s website. The complaint falls under 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 time they have to respond by meeting the requirements of section 9.

[3]      The IRB received the access request on August 13, 2021. On September 9, 2021, it extended the time period for responding to the request by 1,295 days (approximately 3.5 years) under paragraph 9(1)(a). If the extension were valid, the time limit for the response would be March 31, 2025.

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

[4]      Paragraph 9(1)(a) allows institutions to extend the 30 days they have to respond 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 deadline would unreasonably interfere with the institution’s operations; and
• the extension of time is for a reasonable period, given the circumstances.

[5]      To claim the extension, institutions must notify the requester of the following no more than 30 days after receiving the access request:

• they are extending under paragraph 9(1)(a) the time they have to respond to the access request;
• the duration of the extension; and
• the requester has the right to complain to the Information Commissioner about the extension.

Did the institution properly notify the complainant of the extension of time?

[6]      The IRB sent a notice to the complainant within 30 days after receiving the access request. The notice indicated that the extension of time was for 1,295 days and that it was taken under paragraph 9(1)(a). In the notice, the IRB also informed the complainant of their right to complain to the Information Commissioner about the extension of time.

[7]      The complainant was properly notified of the extension of time.

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

Is the request for a large volume of records, or did the request necessitate a search through a large volume of records?

[8]      As of the date that the IRB claimed its extension of time, 13,000 of an estimated 20,000 pages of responsive records had been imported into the IRB’s Access to Information (ATI) processing system. By December 2021, more than two months after claiming the extension of time, an additional 500 pages had been imported.

[9]      During the investigation the IRB did not confirm the actual number of pages responsive to the request but explained the basis for its estimate of 20,000 pages.

[10]    I do accept, based on the representations received that the request is for a large volume of records so as to satisfy the first condition set out in paragraph 9(1)(a).

Would responding to the request within 30 days unreasonably interfere with IRB’s operations?

[11]    I am also satisfied based on the information gathered during the investigation that responding to the request within the original 30-day time limit would unreasonably interfere with IRB’s operations. The second condition set out in paragraph 9(1)(a) is therefore also met.

Is the length of the time extension reasonable?

[12]    According to IRB’s representations, the 1,295-day time-extension was calculated based on the following timeframes allotted for the completion of various steps:

1. 2 weeks (14 calendar days) to scan and index the requested records into IRB’s Access Pro Redaction software.

2. 160 weeks (1,120 calendar days) for an assigned ATI analyst to review the records. 10 weeks (70 calendar days) for ATI Management’s review / quality control of exemptions applied by the assigned analyst.

3. 10 weeks (70 calendar days) for final approval, described as involving: i) a review by Legal Services, as the Office of Primary Interest (OPI) over the responsive records; and ii)  notification to the IRB’s Director General’s office in order to provide the senior management an opportunity to review the package in its entirety.

4. 3 additional weeks (21 calendar days) to account for potential miscellaneous delays, such as “…technical failure, power outages, absences that diminish capacity, more complex pages for review, etc.”

[13]    For reasons set out below, I cannot accept that the above timeframes are justified.

160 weeks (i.e. 1,120 calendar days) for an assigned analyst to conduct a preliminary review of the responsive records:

[14]    The IRB in its representations explained that the 160-week timeframe allotted for an assigned analyst to conduct a preliminary review of the records is based on the assumption that the analyst will review 40 pages per hour for 12.5 hours per month.

[15]    In support of the limited resources devoted to this initial review, the IRB referred to its “substantial increase in volume of requests” and a shortage of staff in its ATIP office. With regard to the latter, the IRB explained that at the time of claiming the extension of time, three of its six analyst positions were vacant and that, while one analyst position has since been filled and it has contracted external resources, its operational capacity continues to be rebuilt.

[16]    Additional information provided by the IRB, however, indicates that requests under the Act have in fact remained relatively consistent over the past two years (i.e. 161 requests made in 2021-2022 and 159 requests made in 2020-2021), and are down from the 228 access requests received in 2019-2020.

[17]    In terms of the IRB’s operational capacity, the information provided during the investigation suggests that, despite shortages in staff, ATIP resources are being significantly directed towards non-ATI responsibilities. For instance, requests under the Act (“formal requests”) constitute only a small proportion of requests addressed by its ATIP office (i.e. 161 of 2,224 requests received as of March 22, 2022); and ATIP analysts are each expected to devote more time per month depersonalizing refugee decisions for online publication (i.e. 20 hours per month per analyst) than the number of hours devoted to reviewing records responsive to the current request (i.e. 12.5 hours per month by one analyst).

[18]    In my view, the ATIP office’s ongoing staffing shortages and competing priorities of responding to informal requests and sanitizing records for publication, cannot reasonably absolve the IRB of its statutory obligation to provide timely access to records requested under the Act. The IRB has not established that it is reasonable for only 12.5 hours per month, over the course of more than 3 years, to be directed towards conducting an initial review of records responsive to this request.

10 weeks (70 calendar days) for ATI Management’s review / quality control, followed by 10 additional weeks (70 calendar days) for final approval

[19]    The IRB’s main argument in support of the reasonableness of the 10 weeks allotted for ATI Management’s review / quality control is the need to ensure that “no undue limitations are being applied to the requester’s right of access”, following broad claims of solicitor-client privilege by its Legal Services (OPI). In this regard, the IRB made mention of some members of Legal Services having informed the ATIP office that the records in their entirety are privileged.

[20]    Despite these representations, the IRB further maintained that an additional 10 weeks, following ATI Management’s review / quality control, is required for final approval, which involves: i) a review by Legal Services, as the OPI; and ii) notification to the IRB’s Director General’s office in order to provide the senior management an opportunity to review the package in its entirety.

[21]    If a principal reason for the lengthy timeframe allotted for ATI Management’s review is concerns regarding a potential overly-broad claim of solicitor-client privilege by its OPI, it is difficult to understand the logic in the ATIP Office remitting the records back to the OPI for it to conduct an equally lengthy final review.

[22]    In my view, the IRB has not established that either its process and / or the timeframes allotted for this series of reviews is reasonable. As will later be addressed, this includes the IRB’s claims that its processing steps cannot be performed in tandem or with some overlap.

3 additional weeks (21 calendar days) to account for potential miscellaneous delays

[23]    As for the additional time claimed in order to account for potential miscellaneous delays, the IRB’s representations did not establish how allotting such a timeframe(s) to account for potential “unknowns” can be reconciled with the IRB’s obligation to demonstrate that the work required to provide access within any materially lesser period of time than the one asserted would interfere with its operations.

Additional concerns:

[24]    Beyond the above, the IRB maintained that none of the steps identified as needing to be completed prior to responding to the request can be undertaken at the same time. In other words, each step (i.e. scanning and indexing records, the analyst’s initial review, ATI Management’s review / quality control, and final approval), must be completed sequentially without overlap. By way of explanation, the IRB stated that the records are closely related and are on the same topic and that if the records were reviewed in batches over a period of days or weeks then context may be missed and it would be difficult to ensure consistency in the information disclosed.

[25]    The IRB, in my view, did not establish why steps must be taken sequentially without overlap. The fact that the IRB envisions that both ATI Management’s review and the OPI’s final review will be conducted over the course of multiple months undermines its rationale that a review over a period of days or weeks will result in context being missed and / or inconsistencies in disclosure.

[26]    Based on the representations received, the IRB did not sufficiently explain why concurrent reviews by ATI Management and the OPI of samplings of the analyst’s proposed application of exemptions could not reasonable be undertaken an early stage in the processing of the request. This would have the obvious advantage of facilitating the resolution of potential disagreements on disclosure and diminish the time ultimately needed to complete ATI Management’s and the OPI’s final review of the entire record set.

[27]    Additional representations made by the IRB were also not persuasive. For instance, representations about the IRB’s challenges in accessing paper-based records while work locations were closed during periods of the COVID 19 pandemic, do not explain delays in the processing of the current request which involves responsive records that are all in electronic form.

[28]    Based on the information and representations provided, I am not satisfied that the calculation of the time extension under paragraph 9(1)(a) is sufficiently logical and supportable, or that access to the records within any materially lesser period of time than the one asserted would unreasonably interfere with its operations. (see: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2015 FCA 56).

[29]    In light of the foregoing, I am of the view that the extension taken pursuant to paragraph 9(1)(a) is not reasonable.

Subsection 10(3): deemed refusal of access

[30]    Under subsection 10(3), when institutions do not respond to an access request within 30 days or by the end of the period for which they validly extended the time they had to respond, they are deemed to have refused access to the requested records.

[31]    Given that IRB did not establish that the requested extension of time was reasonable, the extension is invalid, and the IRB is deemed to have refused access pursuant to subsection 10(3).

Result

[32]    The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the Chairman of IRB to process all records within the scope of the request as soon as possible but no later than April 18, 2023.

On July 20, 2022, I issued my initial report to the Chairman setting out my order.

On August 12, 2022, the Chairman of IRB gave me notice that he would be implementing my order.

When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They must apply for this review 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.