Library and Archives Canada (Re), 2021 OIC 32

Date: 2021-11-15
OIC file number: 5820-01594
Institution file number: A-2018-01204/GK

Summary

The complainant alleged that Library and Archives Canada (LAC) did not respond to an access request within the time limits set out in the Access to Information Act.

On February 1, 2019, LAC received an access request for records regarding the LGBTQ community in the military.

LAC claimed a 565-day extension of time under paragraphs 9(1)(a) and 9(1)(b) to complete the processing of the request.

However, on September 18, 2020, LAC missed the extended due date, and on October 14, 2020, the OIC received the current complaint questioning the delay taken to process the request.

Given that LAC did not respond to the request by the extended deadline, it is deemed to have refused access pursuant to subsection 10(3). This refusal of access is ongoing and will continue until such time that LAC fully responds to the access request.

The Commissioner ordered the Librarian and Archivist of Canada to complete the processing of the access request and provide a response forthwith.

The complaint is well founded.

Complaint

[1]      The complainant alleged that Library and Archives Canada (LAC) did not respond to an access request within the time limits set out in the Access to Information Act.

Investigation

[2]      On February 1, 2019, LAC received an access request for records regarding the LGBT community in the military.

[3]      Based on the date of receipt of the access request, the statutory 30-day deadline for a timely response was March 4, 2019.

[4]      On March 1, 2019, within the legislative timeframe, LAC claimed a 565-day extension of time under paragraphs 9(1)(a) and 9(1)(b) to complete the processing of the request. If valid, this time extension would have extended the due date to September 18, 2020.

[5]      The Office of the Information Commissioner (OIC) received a complaint on March 19, 2019, questioning the time extension claimed. The OIC investigated and reported its finding of this complaint under file 3219-00307. As a result of the investigation in 3219-00307, the OIC determined that LAC claimed a valid and reasonable time extension, and closed the complaint file as not well founded on July 27, 2020.

[6]      However, on September 18, 2020, LAC missed the extended due date, and on October 14, 2020, the OIC received the current complaint questioning the delay taken to process the request.

Subsection 10(3): deemed refusal of access

[7]      Under subsection 10(3), when institutions do not respond to an access request within either 30 days or at the end of a period for which they took a valid time extension, they are deemed to have refused access to the requested records.

Is LAC in deemed refusal pursuant to subsection 10(3) of the Access to Information Act?

[8]      Given that LAC did not respond to the request by the extended deadline, it is deemed to have refused access pursuant to subsection 10(3). This refusal of access is ongoing and will continue until such time that LAC fully responds to the access request.

[9]      LAC located 9,025 pages of classified material that respond to the request. The responsive records, in their entirety, originate from National Defence.

[10]    Based on LAC’s representations, the main causes of the delay are attributed to the lack of human resources and heavy workload within its access to information and privacy unit. Operational challenges posed by the COVID-19 pandemic have also significantly affected the time needed by LAC to complete the processing of the request. To date, LAC has reviewed 4,318 out of 9,025 pages of records in total. LAC’s review of the remaining records is ongoing. On March 9, 2021, LAC provided an interim response to the complainant, which included a release of 3,785 pages (about 46%) of the responsive records.

[11]    On July 22, 2021, LAC informed the OIC that consultations with National Defense and Justice Canada are necessary. However, LAC did not indicate the number of pages upon which consultations are required, nor when it intends to initiate these consultations.

[12]   LAC committed to providing a second interim response, of an unspecified number of pages, to the complainant by December 31, 2021. LAC has failed to provide a final disclosure date; rather, it indicated that the final response will include any pages that are subject to consultation and that the date of that disclosure is “to be determined”.

[13]    I find that LAC has not adequately addressed the delay in advancing the processing of the request. The complainant has now been waiting over two years for a complete response; one full year passed the time extension claimed, which the OIC had found to be reasonable. This lack of responsiveness is in clear contravention to LAC’s obligations under the Access to Information Act and undermines the credibility of the access system.

Result

[14]    The complaint is well founded.

Order

Under subsection 36.1(1) of the Access to Information Act, I order the Librarian and Archivist of Canada to:

1. Complete the processing of the access request A-2018-01204/GK and provide a response to the access request forthwith.
2. Email a copy of the response letter to the Office of the Information Commissioner’s Registrar (Greffe-Registry@oic-ci.gc.ca).

On August 31, 2021, I issued an Initial report to the Librarian and Archivist of Canada setting out my intended order.

On September 28, 2021, the Librarian and Archivist of Canada stated that: “Rather than continuing to send interim releases to the client, LAC ATIP will endeavour to complete the review of the remaining pages by the end of February 2022, at which time it will send its final release package to the client.”

Section 41 of the Access to Information Act provides a right to any person who receives this report to apply to the Federal Court for a review. Complainants and institutions must apply for this review within 35 business days after the date of this report. The person who applies for a review must 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 will take effect in accordance with subsection 36.1(4).