Impact Assessment Agency of Canada (Re), 2024 OIC 44
Date: 2024-07-17
OIC file number: 5823-01723
Access request number: A-2023-00003
Summary
The complainant alleged that the extension of time the Impact Assessment Agency of Canada (IAAC) took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for communications during a specific period related to designated projects in Western Canada, which involved the development of either a critical mineral mine or a metallurgical steelmaking coal mine. The allegation falls under paragraph 30(1)(c) of the Act.
IAAC extended the time period by 880 days under paragraphs 9(1)(a), (b) and (c). If the extension were valid, the time limit for the response would be December 15, 2025.
IAAC could not show that it met all the requirements of paragraph 9(1)(a), in particular, that it had applied sufficient rigour and logic as part of a serious effort to determine a reasonable period for the extension of time.
Given that IAAC did not establish that the extension of time was reasonable, the extension is invalid and IAAC is deemed to have refused access under subsection 10(3).
The Information Commissioner ordered IAAC to provide a complete response to the access request no later than April 23, 2025. The President of IAAC gave notice to the Commissioner that IAAC would be implementing her order and outlined the specific actions he is taking to ensure compliance, including increasing IAAC’s capacity to process the request, and engaging a consultant to optimize all ATIP processes while also harnessing digital tools to enhance efficiency.
The complaint is well founded.
Complaint
[1] The complainant alleged that the extension of time the Impact Assessment Agency of Canada (IAAC) took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for communications during a specific period related to designated projects in Western Canada, which involved the development of either a critical mineral mine or a metallurgical steelmaking coal mine. The allegation falls under paragraph 30(1)(c) 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.
[3] IAAC received the access request on May 4, 2023 and notified the complainant that pursuant to paragraphs 9(1)(a), 9(1)(b) and 9(1)(c), an additional 880 days would be required to complete the processing of the request. IAAC took an extension of 820 days under paragraph 9(1)(a), and 60 days under paragraphs 9(1)(b) and 9(1)(c). If the extension were valid, the time limit for the response would be December 15, 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] IAAC estimated more than 12,000 pages of potentially responsive records. IAAC demonstrated that a large number of these pages fall within the scope of the access request.
Would meeting the 30-day deadline unreasonably interfere with the institution’s operations?
[6] IAAC stated that it operates with a modest Access to Information and Privacy (ATIP) team comprising three senior analysts and two junior analysts and that, given the extensive nature of the request, it is essential to balance the processing of this request with the efficient processing of other applicants' access and privacy requests.
[7] IAAC also stated that uploading records to the Access Pro Redaction software (APR) is a time-consuming process that involves opening each record individually and completing the metadata for each. IAAC noted that once the records are uploaded, they must be meticulously analyzed line-by-line to identify duplicates and determine the need for potential consultations.
[8] IAAC showed that searching for and processing this many records and responding to the access request within 30 days—assuming it were even possible—would have monopolized resources. Consequently, completing the necessary work would unreasonably interfere with the institution’s operations.
Is the extension for a reasonable period?
[9] IAAC explained that it considered several factors to ensure the extension of 820 days under paragraph 9(1)(a) would be as short as possible, including the following:
- Thousands of pages of records to be processed;
- The complex nature of the review required, prior to providing a response;
- The time needed to import records to APR;
- The workload in the ATIP office.
[10] To establish the timeframe, in combination with the factors above, IAAC estimated a monthly review rate of only a few hundred pages per month. I consider that IAAC did not provide any convincing explanation to justify why this rate was appropriate or reasonable in this particular case. IAAC did not demonstrate that it had applied sufficient rigour and logic as part of a serious effort to determine the duration of the extension of time.
[11] Although the request is for a large volume of records, I conclude that IAAC failed to demonstrate the reasonableness of taking a time extension as long as 820 days under paragraph 9(1)(a).
[12] Since IAAC did not demonstrate that the extension of time taken under paragraph 9(1)(a) was reasonable, it is not necessary for the OIC to investigate the time extension taken by IAAC under paragraphs 9(1)(b) and 9(1)(c).
Subsection 10(3): deemed refusal of access
[13] 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 period they had to respond, they are deemed to have refused access to the requested records.
[14] Given that IAAC did not establish that the extension of time taken was reasonable, I conclude that IAAC is deemed to have refused access pursuant to subsection 10(3).
[15] IAAC reported that it informed the complainant about the volume of records responsive to their request and attempted to work collaboratively to refine and separate the request into different projects, which the complainant did not agree to. Additionally, IAAC noted that the modification to the request text proposed by the complainant on June 30, 2023, did not significantly change the number of responsive records. Furthermore, IAAC indicated that, as the importation of records continued, the number of pages responsive to the request was expected to increase beyond its original estimate.
[16] IAAC also informed my office that consultations with other government departments and third parties were required, given the context of the subject matter of the request. However, IAAC was unable to confirm specifically which consultations were required, and did not provide an estimated date to complete those consultations. IAAC did not provide an estimated date for responding to the request.
[17] IAAC 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.
[18] The complainant has now been waiting more than one year 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 IAAC’s obligations under the Act and undermines the credibility of the access system.
[19] Considering these points and the length of time that the response to the access request has been outstanding, I find that IAAC must issue the response without undue delay. Assuming a processing rate of approximately 1,000 pages per month, with an additional 60 days for consultations with third parties, I conclude that IAAC must respond by April 23, 2025.
Outcome
[20] The complaint is well founded.
Order
I order the President of the Impact Assessment Agency of Canada to provide a complete response to the access request no later than April 23, 2025.
Initial report and notice from institution
On June 12, 2024, I issued my initial report to the President setting out my order.
On July 9, 2024, the President gave me notice that IAAC would be implementing my order and outlined the specific actions he is taking to ensure compliance, including increasing IAAC’s capacity to process the request, and engaging a consultant to optimize all ATIP processes while also harnessing digital tools to enhance efficiency.
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.