Privy Council Office (Re), 2024 OIC 59

Date: 2024-08-19
OIC file number: 5823-03554
Access request number: A-2023-00042 / LS

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 Electronic records from the Privy Council Office that mention the terms "[ ]" or "Democracy Watch" from October 1, 2015 to April 23, 2023. 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 by November 30, 2024 and provide interim releases of records where possible.

PCO gave notice to the Commissioner that it would be implementing the order and would respond to the access request by the ordered due date.

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 following:

Electronic records from the Privy Council Office that mention the terms "[ ]" or "Democracy Watch" from October 1, 2015 to April 23, 2023. I am requesting electronic records (meaning emails, texts and other records created only in electronic format) to facilitate the search for the records. Include documents in which cabinet material can be severed, however exclude documents marked cabinet confidences in their entirety.

[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 April 25, 2023. On May 25, 2023, it extended the period within which it had to respond by 210 days under paragraphs 9(1)(a) and 9(1)(b), making the time limit to respond December 21, 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 that PCO’s Access to Information and Privacy (ATIP) received 5,711 pages of records between May 3 and 5, 2023. To date, 4,660 pages have been reviewed. Consultations have been identified on 898 pages. PCO anticipates sending the consultations to the various institutions by the end of June 2024. The Department of Justice indicated that it will require 240 days to respond to the consultation.

[10]    PCO maintains that limited resources and large volume workloads in the ATIP office have also led to processing delays. As a result of this and the required consultations, PCO has advised that it intends to respond to the access request by the end of January 2025.

[11]    I do not consider PCO’s estimate of end of January 2025 to be reasonable. While I understand that the volume of requests that PCO’s ATIP office has been receiving has increased, this is the reality across most of government. The fact remains that PCO committed inadequate resources to the processing of this request since the records were retrieved.

[12]    The complainant has now been waiting for over a year for a response to the request. This delay is unacceptable and is in clear contravention PCO’s obligations under the Act, which provide for the provision of timely responses.

[13]    Considering all of the above, I conclude that PCO must respond to the request within five (5) months, taking into consideration that:

• The PCO ATIP team has several analysts who will be able to share the task while working on other files - it is possible to carry out several tasks at the same time; and,
• Consultations should be limited to necessary circumstances and specific information, in order to limit delays.

[14]    I also find that PCO must consider releasing the documents as they are processed, if possible.

Outcome

[15]    The complaint is well founded.

Order

I order the Clerk of the Privy Council to:

1. Provide a complete response to the access request by November 30, 2024; and,
2. Provide interim releases to the complainant at regular intervals, if possible.

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.

In particular, PCO now confirms that there are 1,451 pages of responsive records for this request and consultations are required with the Treasury Board Secretariat, the Department of Justice, and Natural Resources Canada. These consultations are expected to be completed by September 9, 2024. Once received, a review from PCO’s responsible sectors will be required. PCO is expediting the review of records in order to provide a response as set out above.

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.