Library and Archives Canada (Re), 2024 OIC 41
Date: 2024-07-11
OIC file number: 5822-04999
Access request number: A-2019-04751
Summary
The complainant alleged that Library and Archives Canada (LAC) did not respond within the extended period under subsection 9(1) of the Access to Information Act to an access request. The request was for records in files RG73, BAN 2016-00616, Box 39, File 7/10/A/3 - Canadian Intelligence Program / RG73, BAN 2016-00616, Box 39, Files 14/82 and 21/82 - Joint Intelligence Organization.
The allegation falls under paragraph 30(1)(a) of the Act.
The investigation determined that LAC did not respond by the required date and is deemed to have refused access to the requested records under subsection 10(3). The delay was caused by the failure of the Access to Information and Privacy (ATIP) office to process the request in a timely manner.
The Information Commissioner ordered that LAC provide a complete response to the access request no later than 36 business days after the date of the final report.
LAC gave notice to the Commissioner that it would not be implementing the order, taking into account workload that is already prioritized, including commitments to other orders.
The complaint is well founded.
Complaint
[1] The complainant alleges that Library and Archives Canada (LAC) did not respond within the extended period under subsection 9(1) of the Access to Information Act to an access request. The request was for records contained in the following files:
RG73, BAN 2016-00616, Box 39, File 7/10/A/3 - Canadian Intelligence Program / RG73, BAN 2016-00616, Box 39, Files 14/82 and 21/82 - Joint Intelligence Organization
[2] The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
Time limits for responding to access requests
[3] 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. When an institution does not respond to a request within the 30-day or extended period, it is deemed to have refused access to the requested records under subsection 10(3).
[4] Nevertheless, the institution is still required to provide a response to the access request.
What is a response?
[5] The response must be in writing and indicate whether the institution is giving access to any or part of the requested records.
- When the response indicates that the institution has given access to the records or part of them, the institution must provide access to those records.
- When the response indicates that the institution has denied access to the records or part of them, the institution must explain that the records do not exist or that the institution has exempted them, or part of them, under a specific provision, which the institution must name.
[6] In specific circumstances, the institution may refuse to confirm or deny in its response whether records exist under subsection 10(2).
Did the institution respond within the time limits?
[7] LAC received the access request on July 18, 2019. On August 9, 2019, it extended the period within which it had to respond by 180 days under paragraph 9(1)(b), making the time limit to respond February 13, 2020.
[8] LAC did not respond to the access request by that date. I conclude, therefore, that LAC did not meet its obligation to respond to the request within the extended period. LAC is deemed to have refused access to the requested records under subsection 10(3).
[9] During the investigation, LAC advised the Office of the Information Commissioner (OIC) that the records comprise 135 pages of historical records. LAC also advised the OIC that a consultation with Global Affairs Canada (Global Affairs) has been completed, but further review of the records and additional consultations may be needed. However, these requirements have not yet been determined. As a result, LAC failed to provide the OIC with a time frame within which it would respond to the access request.
[10] LAC 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.
[11] The complainant has now been waiting almost five years for a response to the request. Furthermore, the Access to Information and Privacy (ATIP) office has had the records since July 2019, but has yet to complete the processing of this request. This delay is unacceptable and is in clear contravention of LAC’s obligations under the Act, which provide for the provision of timely responses.
[12] Considering the length of time the requester has been waiting for a response to the access request and the small volume of records involved, I find that LAC must respond to the request without undue delay.
Outcome
[13] The complaint is well founded.
Order
I order the Minister of Canadian Heritage to provide a complete response to the access request on the 36th business day following the date of the final report.
Initial report and notice from institution
On May 29, 2024, I issued my initial report to the Minister of Canadian Heritage setting out my order.
On June 25, 2024, the Minister gave me notice that she would not be implementing my order. LAC advised the OIC that the request is for 135 pages regarding Top Secret records from Global Affairs Canada. It requires consultation and a careful page by page consideration of its contents before release. LAC will endeavour to complete this request as soon as possible, taking into account the workload that is already prioritized, including commitments to other orders. LAC will complete the work in a timely manner but it anticipates that it cannot complete this file by the ordered disclosure date of 36 business days after the receipt of the Final Report.
I must remind the Minister that if she does not intend to fully implement my order, she must apply to the Federal Court for a review by the following deadline.
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.