Library and Archives Canada (Re), 2023 OIC 24

Date: 2023-06-28
OIC file number: 5822-02124
Institution file number: A-2022-01755

Summary

The complainant alleged that the length of the extension of time Library and Archives Canada (LAC) took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The access request was for any records relating to any and all access to information requests received by LAC regarding Project Anecdote. The complaint falls under paragraph 30(1)(c) of the Act.

LAC claimed a 1,095-day extension of time under paragraphs 9(1)(a) and (b) to complete the processing of the request. If the extension were valid, the time limit for the response would be June 20, 2025.

During the investigation, LAC 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, or 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.

The Office of the Information Commissioner concludes that LAC showed that it met all the requirements of paragraph 9(1)(a) and (b). Therefore, the extension is valid and the due date to respond to the access request remains June 20, 2025.

The complaint is not well founded.

Complaint

[1] The complainant alleged that the length of the extension of time Library and Archives Canada (LAC) took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The access request was for any records relating to any and all access to information requests received by LAC regarding Project Anecdote. 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 30-day period for responding by meeting the requirements of section 9.

[3] LAC received the access request on May 13, 2022, but the fees were paid on May 22, 2022. On June 14, 2022, LAC extended the time it had to respond by 1,095 days under paragraphs 9(1)(a) and (b). If the extension were valid, the time limit for the response would be June 20, 2025.

Extensions of time

Notification

[4] To extend the period for responding to access requests, institutions must notify requesters of the following no more than 30 days after receiving the request:

they are extending under paragraph 9(1)(a), (b) and/or (c) the period for responding to the request;
the duration of the extension; and
the requester has the right to complain to the Information Commissioner about the extension.

[5] Institutions must also show that the requirements of the paragraph of subsection 9(1) they are relying on to extend the 30-day period are met.

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

[6] LAC sent a notice to the complainant within 30 days after receiving the access request and indicated that the extension of time was for 1,095 days and that it was taken under paragraphs 9(1)(a) and (b). In the notice, LAC also informed the complainant of their right to complain to the Information Commissioner about the extension of time.

[7] The complainant was properly notified.

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

[8] 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?

[9] LAC stated that more than 36,000 pages of records fall within the scope of the access request. In addition, a search would be required among multiple information sources to identify relevant records.

[10] LAC demonstrated that the request is for a large number of records and requires a search through a large number of records.

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

[11] LAC showed that searching for and processing this many records and responding to the access request within 30 days—assuming it was even possible—would have monopolized resources, especially by mobilizing the entire staff. Consequently, completing the necessary work would unreasonably interfere with the institution’s operations.

Is the extension for a reasonable period?

[12] In its representations, LAC stated, among other things, that it had used the general principle of 1,000 pages per month to determine the length of the extension. According to LAC, since it would take an average analyst one month of full-time work to review 1,000 pages, it would take 1,095 days to review all 36,000 pages.

[13] However, the Treasury Board of Canada Secretariat’s Access to Information Manual states the following in this regard:

Consequently, the length of an extension should be assessed on a case-by-case basis wherein the volume and complexity of the information for that specific request is taken into consideration. … This approach avoids determining the length of an extension based on only such pre-determined factors as the average response time taken by an institution or third party consulted in the past.

[14] For this reason, the Office of the Information Commissioner (OIC) notes that, even though standard time limits may exist, it is not sufficient to apply a formulaic approach based solely on a general calculation. With respect to the calculation used by LAC, the rule of 1,000 pages per month is only an estimate and must be used on a case-by-case basis depending on the specific nature of each record. Therefore, the OIC cannot accept an extension based solely on this general principle.

[15] However, when it comes to analyzing reasonableness, the issue is not whether the extension is correct but whether it is reasonable. From this point of view, the issue is whether the estimated calculation is sufficiently rigorous, logical and supportable.

[16] To this end, to calculate the 730-day time limit, LAC also took into account the effort and logistics required for processing the request, which would entail searching through the emails of 45 current and former employees, among other things.

[17] Furthermore, although the number of pages was one of the factors taken into account in determining the length of the extension, LAC stated that it had considered the degree of complexity of the request in light of the numerous exemptions related to section 23 of the Act.

[18] In light of the above, the OIC is satisfied that LAC applied sufficient rigour and logic as part of a serious effort to determine the duration of the extension of time, making 730 days reasonable and justified in the circumstances.

[19] The OIC therefore concludes that LAC showed that it met all the requirements of paragraph 9(1)(a).

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

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

they need to carry out consultations on the requested records; and
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 consultations necessary?

[21] According to LAC, due to the nature of the information requested, consultations with the Department of Justice Canada (Justice) are necessary. In fact, legal counsel have been involved in this case.

[22] Given the purpose of the request, the OIC is satisfied that such consultations are necessary.

Could the consultations reasonably be completed within 30 days?

[23] Since it is likely that many records will require consultation, LAC has estimated that it would not be possible to receive a consultation response within the initial 30-day response timeframe.

[24] Given the volume and nature of the records to be sent for consultation, the OIC is satisfied that the consultation cannot reasonably be completed within 30 days.

Is the time extension for a reasonable period?

[25] In its initial representations, LAC did not base its calculations for the extension on the number of pages to be sent for consultation. However, in additional representations, LAC stated that it needed 365 days to consult with Justice regarding approximately 1,800 pages.

[26] In light of the above, the OIC is satisfied that LAC applied sufficient rigour and logic as part of a serious effort to determine the duration of the extension of time, making 365 days reasonable and justified in the circumstances.

[27] The OIC therefore concludes that LAC showed that it met all the requirements of paragraph 9(1)(b).

[28] The OIC concludes that LAC showed that it met all the requirements of paragraphs 9(1)(a) and (b). Therefore, the extension is valid, and the due date to respond to the access request remains June 20, 2025.

Result

[29] The complaint is not well founded.

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.