Privy Council Office (Re), 2024 OIC 65
Date: 2024-09-09
OIC file number: 5824-00242
Access request number: A-2022-00648
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 documents, memoranda, e-mails, correspondence, briefing notes, text messages, messages on Microsoft Teams or any other messaging platform, and any other records, including drafts, from September 1, 2022, to the present, respecting committee studies of foreign election interference. 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 large volume of records and the failure of the Access to Information and Privacy (ATIP) office to initiate consultations in a timely manner.
The Information Commissioner ordered that PCO provide a complete response to the access request by November 15, 2024.
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 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 following:
[2] All documents, memoranda, e-mails, correspondence, briefing notes, text messages, messages on Microsoft Teams or any other messaging platform, and any other records, including drafts, from September 1, 2022, to the present, respecting committee studies of foreign election interference.
[3] The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
Time limits for responding to access requests
[4] 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).
[5] Nevertheless, the institution is still required to provide a response to the access request.
What is a response?
[6] 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.
[7] 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?
[8] PCO received the access request on March 20, 2023. On April 19, 2023, it extended the period within which it had to respond by 330 days under paragraphs 9(1)(a) and (b), making the time limit to respond March 14, 2024.
[9] 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).
[10] During the investigation, PCO advised the Office of the Information Commissioner (OIC) that the records comprise 5,988 pages. PCO confirmed that consultations with eight other government departments (OGD) are necessary and will be sent by July 5, 2024. All but one of the eight OGDs have confirmed that the consultations will be completed by early October.
[11] PCO has advised the OIC that it intends to respond to the access request by November 15, 2024.
[12] Any additional time 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] However, based on the work that remains outstanding, I find the proposed response date reasonable.
Outcome
[14] The complaint is well founded.
Order
I order the Clerk of the Privy Council to provide a complete response to the access request by November 15, 2024.
Initial report and notice from institution
On July 9, 2024, I issued my initial report to the Clerk of the Privy Council setting out my order.
On August 28, 2024, the Assistant Secretary to the Cabinet, Ministerial Services and Corporate Affairs gave me notice that PCO would be implementing my order. PCO also advised that of the 5,988 pages provided to the Access to Information and Privacy office in response to the request, 4,472 pages were deemed relevant. Consultations with the Canadian Security Intelligence Service, Communications Security Establishment Canada, the Department of Justice, the Department of National Defense, Global Affairs Canada, Public Safety and the Royal Canadian Mounted Police are required. A review will also then be required with the following PCO secretariats: Communications and Consultations, Democratic Institutions, Foreign and Defence Policy, Intelligence Assessment, Legislation and House Planning, Security and Intelligence, as well as, the Office of the Deputy Clerk of the Privy Council and National Security Advisor to the Prime Minister. PCO is expediting the review of records in order to provide a response by the ordered date.
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.