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Library and Archives Canada (Re), 2024 OIC 12

Date: 2024-04-01

OIC file number: 5821-06170

Institution file number: A-2021-09204

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 request was for all Royal Canadian Mounted Police (RCMP) records relating to project Anecdote. The complaint falls under paragraph 30(1)(c) of the Act.

LAC extended the time period by 23,725 days under paragraphs 9(1)(a) and (b).

LAC identified 780,000 pages of paper and microfilm records responsive to this request, that will have to be converted into an electronic format.

LAC did not demonstrate why the request would be processed by a single employee, nor why the tasks were calculated consecutively rather than concurrently.

Furthermore, not all of the records have been retrieved and analyzed yet, so LAC was not in a position to specify the exact number of records that would have to be sent for consultation.

LAC did not show that the extension of time is for a reasonable period, having regard to the circumstances. Therefore, the extension of time is invalid and LAC is deemed to have refused to give access to the requested records pursuant to subsection 10(3).

The complaint is 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 request was for all Royal Canadian Mounted Police (RCMP) records relating to project Anecdote. The complaint falls under paragraph 30(1)(c) of the Act.

Investigation

[2]      LAC received the access request on January 17, 2022, and extended the time period for responding to the request by 23,725 days under paragraphs 9(1)(a) and (b).

Section 9: Extension of time limits

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

[3]      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 the extension of time is for a reasonable period?

[4]      LAC extended the time period for responding to the request by 23,725 days, which is equal to approximately 65 years, under paragraph 9(1)(a).

[5]      According to LAC, all paper and microfilm records will need to be converted into an electronic format in order to be processed. More specifically, LAC explained that it would take a Digital Imaging Technician approximately 1.5 years to digitize the 780,000 pages of records. Textual records are digitized at a rate of 1,000 pages per day and microfilm are digitized at a rate of 30,000 images per day. This would require 25% of LAC’s Digital Imaging resources if one person were assigned to the processing full-time.

[6]      LAC further indicated that it had taken into consideration the fact that the records must be reviewed page by page to determine whether any exemptions apply due to the nature of the requested records.

[7]      In its representations, LAC also maintained that it followed the rule provided by the Office of the Information Commissioner for determining the time limit. According to LAC, a well-trained analyst requires one month to review 1,000 pages, which means that it would take approximately 65 years to review 780,000 pages (without factoring in any other tasks or requests the analyst would have to handle, nor the digitizing/scanning process required).

[8]      The Access to Information Manual prepared by the Treasury Board of Canada Secretariat sets out the following with regard to calculating an extension:

[T]he 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.  … Extensions should be based on the amount of work required to process a request and be for as short a time as possible. (emphasis added)

[9]      As a result, 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. I therefore cannot accept an extension based solely on this general principle.

[10]    Finally, LAC has not demonstrated why the time extension calculation was based on a single employee working on the processing of this request or why tasks were calculated consecutively when some of the work could be completed concurrently (such as reviewing records as they are scanned, in batches).

[11]    In the case at hand, I am satisfied that this is not a valid estimate, given the excessive number of pages.

[12]    In fact, I am not convinced that the link between the justifications advanced by LAC and the length of the extension claimed (i.e., 23,725 days) has been adequately explained. Nor has LAC demonstrated that the work required to provide access within any materially lesser period of time than the one asserted would interfere with its operations. (See: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2015 FCA 56)

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

[13]    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;
  • 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 the extension of time is for a reasonable period?

[14]    LAC indicated that it calculated the extension based on the number of pages to be sent for consultation.

[15]    In its representations, LAC estimated that 30% of the gathered records will require consultation with the RCMP and 10%, with Justice. Given that not all of the records have been retrieved and analyzed yet, LAC is not in a position to specify the exact number of records that would have to be sent for consultation.

[16]    Absent these important details, it is difficult for me to conclude that the consultations cannot be completed in significantly less time than 65 years.

[17]    I therefore find that LAC did not show that the extension of time is for a reasonable period, having regard to the circumstances. Consequently, the extension of time is invalid and the deadline for responding to the request was February 16, 2022. Therefore, LAC is deemed to have refused access to the requested records pursuant to subsection 10(3).

[18]    In light of the above, I find that LAC must respond as quickly as possible, given that:

  • There are several analysts on LAC’s access team who could share the work while also dealing with other files. It is possible to work on more than one task at a time;
  • To limit delays, consultations should be restricted to pages/texts that genuinely require it.

[19]    LAC must also update the complainant on the status of the access request and should consider releasing records as they are processed, if possible.

[20]    Should the complainant decide to amend the scope of the request in order to reduce the response time, I invite them to discuss the matter directly with LAC.

Result

[21]    The complaint is well founded.

Orders

I order the Minister of Canadian Heritage to do the following:

  1. Provide a complete response to the access request forthwith.
  2. Provide an update to the complainant every six months on the status of the access request;
  3. Endeavour to provide interim releases to the complainant on a regular basis.

Initial report and notice from institution

On November 21, 2023, I issued my initial report to the Minister of Canadian Heritage setting out my orders.

On December 19, 2023, the Minister gave me notice that LAC would not be implementing my orders. She indicated that:

  • The request relates to a file containing 3 million pages of information provided by the RCMP, and includes highly sensitive personal information. The file requires a careful page-by-page review of its contents before release. LAC is reviewing the contents and has sent the RCMP a request for consultation.
  • LAC will endeavour to obtain the consultations as soon as possible, without losing sight of any other priority consultations. Once they are returned, LAC will ensure that the work is completed as soon as possible.
  • LAC has filed an application for judicial review contesting my decision on its subsection 6.1(1) application concerning this request. LAC will comply with any court order it receives regarding this matter.

Review by Federal Court

When an allegation(s) 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, the order(s) takes effect on the 36th business day after the date of this report.

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