Privy Council Office (Re), 2024 OIC 58
Date: 2024-08-19
OIC file number: 5823-02374
Access request number: A-2022-00207
Summary
The complainant alleged that the Privy Council Office (PCO) 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 the records contained in File 45731-2-2001 – ICSI Meetings 2001. The allegation falls under paragraph 30(1)(a) of the Act.
The investigation determined that PCO 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 initiate consultations and process the request in a timely manner.
The Information Commissioner ordered that PCO provide a complete response to the access request no later than 36 business days after the date of the final report.
PCO gave notice to the Commissioner that it would be implementing the order and would respond to the access request within the ordered time frame.
The complaint is well founded.
Complaint
[1] The complainant alleges that the Privy Council Office (PCO) 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 the records contained in the following file: - File 45731-2-2001 – ICSI Meetings 2001 These records are likely to be found in the “S&I” files stored in the National Security Branch special archives.”
[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] PCO received the access request on August 2, 2022. On September 1, 2022, it extended the period within which it had to respond by 350 days under paragraph 9(1)(b), making the time limit to respond August 17, 2023.
[8] PCO did not respond to the access request by that date. I conclude, therefore, that PCO did not meet its obligation to respond to the request within the extended period. PCO is deemed to have refused access to the requested records under subsection 10(3).
[9] During the investigation, PCO advised the Office of the Information Commissioner (OIC) that the records comprise 294 pages – some of which are top secret records. PCO also informed the OIC that a consultation with Global Affairs Canada, due February 8, 2024, remains outstanding. PCO officials maintain that employee shortages and a high-volume workload in the Access to Information and Privacy office have delayed the processing of this request.
[10] PCO 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.
[11] Where a consulted institution fails to provide recommendations within a reasonable period of time, the institution in receipt of the request is ultimately required to provide the requester with a timely response, without the benefit of the consulted institution’s recommendations.
[12] The complainant has now been waiting almost two years 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 PCO’s obligations under the Act and undermines the credibility of the access system.
[13] PCO has advised the OIC that it intends to respond to the access request by mid September 2024.
[14] I find that PCO must respond to the request without undue delay.
Outcome
[15] The complaint is well founded.
Order
I order the Clerk of the Privy Council to provide a complete response to the access request no later than the 36th business day after the date of the final report.
Initial report and notice from institution
On July 10, 2024, I issued my initial report to the Clerk of the Privy Council setting out my order.
On August 9, 2024, the Assistant Secretary to the Cabinet, Ministerial Services and Corporate Affairs gave me notice that PCO would be implementing my order.
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.