Public Health Agency of Canada (Re), 2022 OIC 26

Date: 2022-06-06
OIC file number: 5821-01212
Institution file number: PHAC-A-2021-000154

Summary

The complainant alleged that the extension of time the Public Health Agency of Canada (PHAC) took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for all correspondence, including emails, Microsoft (MS) Teams messages, texts and phone messages, sent and received by Iain Stewart, between June 14 and June 21, 2021. The requester also specified that they would not “re-scope or limit” their request.

PHAC notified the complainant that, pursuant to paragraphs 9(1)(a) and 9(1)(b), it would require an additional 1,950 days to complete the processing of the request.

PHAC demonstrated that the time extensions were necessary and for a reasonable period, given the circumstances.

The complaint is not well founded.

Complaint

[1] The complainant alleged that the extension of time the Public Health Agency of Canada (PHAC) took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for all correspondence, including emails, Microsoft (MS) Teams messages, texts and phone messages, sent and received by Iain Stewart, between June 14 and June 21, 2021. The requester also specified that they would not “re-scope or limit” their request.

Investigation

[2] Based on the date of receipt of the request, the statutory 30-day deadline for a timely response was July 21, 2021.

[3] On July 20, 2021, within the legislative timeframe to do so, PHAC notified the complainant that, pursuant to paragraphs 9(1)(a) and 9(1)(b), it would require an additional 1,950 days (5 years and 4 months) to complete the processing of the request. If valid, this time extension would extend the due date for a response to November 23, 2026.

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

[4] Paragraph 9(1)(a) allows institutions to extend the 30 days they have to respond 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 deadline would unreasonably interfere with the institution’s operations; and
The extension of time is for a reasonable period, given the circumstances.

[5] Whether a time extension is reasonable is to be determined on the basis of the circumstances that were known to exist at the time the decision was made.

Is the request for a large number of records or does the request require searching through a large number of records?

[6] The requested documents include all exchanges sent or received by the President of PHAC at the time of the request and did not specify any particular subject matter. As a result, the search included email chains with attachments, encrypted emails, as well as various other communication software including MS Teams messages. PHAC submitted that due to Mr. Stewart’s important role in the COVID-19 pandemic, this request, which seeks correspondence over an 8-day period, produced a significant volume of records.

[7] According to PHAC, more than 30,000 pages of records were identified as falling within the scope of this request. By comparison, PHAC indicated that its average pages processed per request during 2020-21 was 95 pages.

[8] PHAC confirmed that while the number of pages was estimated at 30,000 pages, the Office of Primary Interest (OPI) put forward that the actual number of pages could be higher. That said, PHAC believed that there would also be duplicates and therefore agreed that the estimate of 30,000 pages was realistic. This assessment was based on their experience with similar “all correspondence” type requests that it had received during the previous year.

[9] Representations provided by PHAC demonstrate that it played a challenge function during the time they provided the estimated page count. This included follow-up emails, video calls and correspondence via MS Teams, questioning the volume of records responsive for this request. The OPI based its estimate on a sampling of emails and the number of emails sent and received by the President of PHAC – between 500 and 700 per day. In addition to the volume of email messages, PHAC confirmed that there were several reports provided by email and as a result, many of the emails were several pages long, when attachments were included. PHAC, therefore, made its decision to extend the 30 days deadline on the basis that there would be around 30,000 pages of records to process.

[10] I consider 30,000 pages of records to be for large volume of records as required to justify an extension pursuant to paragraph 9(1)(a).

Would meeting the 30-day deadline unreasonably interfere with the institution’s operations?

[11] PHAC has confirmed that the retrieval of the documents from the President's office alone has been time consuming. PHAC submitted that the President's office had to continue to manage other urgent priorities related to the health of Canadians while providing the requested records. Given the volume of records, operational requirements, and complexity, PHAC indicated that responding to this request within 30 days would have had a direct impact on its operations.

[12] I am satisfied that meeting the original 30-day time limit to respond to the access request would have unreasonably interfered with PHAC’s operations. Therefore, PHAC has met the second requirement for extending the time it had to respond to the request under paragraph 9(1)(a).

Is the extension of time for a reasonable period, given the circumstances?

[13] Under paragraph 9(1)(a), PHAC extended the time limit for a response by 1,800 days. In its representations, PHAC asserts that it has an obligation to treat all requesters equally to support the right of access; in principle, every request should receive the same amount of attention and effort.

[14] PHAC explained that PHAC and the President’s office is at the epicentre of the COVID-19 pandemic response, working exceptionally long hours, seven days per week while dealing with a very high number of complex issues on subjects that extend beyond that of the pandemic.

[15] During fiscal year 2020-21, PHAC’s incoming volume of access requests increased, reaching 3.7 times the historic norm (542 access requests received in 2020-21 compared to an average number of new requests per year of 147 pre-pandemic). This surge continued into fiscal year 2021-22 where PHAC received 757 access requests.

[16] In response to this increase, PHAC has augmented the number of Access to Information and Privacy (ATIP) Analysts from four to eighteen. With eighteen ATIP Analysts, they each have an active workload of 36 files. According to PHAC, assuming a production level of 1,000 pages per month (historically, pre-pandemic, the annual productivity level per analyst across the ATIP Division was between 10,000 – 12,000 pages per year, or at most, 1,000 pages per month), and that all requests are given equal priority, this represents an average processing capacity of 28 pages per file per month, or 336 pages annually per file.

[17] Unless this access request jumps the queue in advance of all others, at this rate, it would take 91 years to process 30,000 pages. According to PHAC’s analysis, a “reasonable” extension could total several decades.

[18] While the volume of pages was one factor in determining the length of the extension, PHAC stated that it also considered the complexity in processing this request – applying necessary exemptions and exclusions to the information at issue – prior to providing a final response. As an example, PHAC illustrated that responding to an access request for Question Period Cards and associated media lines would be very quick to process as most, if not all of the information, would be disclosed. In contrast, an access request for 30,000 pages of information seized under a search warrant as part of a formal investigation, may be fully exempt making the review and application of necessary exemptions also very quick to complete. And, in both of these examples, a shorter than average extension of time would be justified.

[19] In the present case, PHAC asserted that the processing of these particular 30,000 pages is highly complex and warrants a longer than average time extension. PHAC explained that the records would first need to be organized, likely by theme, in order to apply necessary exemptions as consistently as possible. PHAC submitted that organizing the records is very time-consuming. PHAC added that the issues described in the 30,000 pages of records are a blend of highly sensitive/confidential information and information which is publicly known. Accordingly, PHAC indicated that the analyst that reviews the records would need to work closely with the OPI to best understand the context prior to applying exemptions or disclosing the information to the complainant.

[20] While PHAC considered all of the above factors in determining the length of the time extension, it set the time extension with an objective to strike the balance between what would be operationally feasible for PHAC to accomplish given the facts of this case, while still being committed to the complainant’s right of access. PHAC stated:

In order to calculate the length of the extension, the full page estimate of 30,000 pages was used, assuming a monthly production rate of 500 pages. This production rate was selected as an ideal; a rate that PHAC would like to be able to realize, if it had many more resources and far fewer files. By using this exceptionally high production rate, it enabled integration of discounts to account for the possibility that the page count could be lower, and that the final package would be reduced once duplicates were removed. Based on this idealistic average processing rate of 500 pages per month, PHAC calculated that it would require 60 months to process 30,000 pages, or approximately 1800 days. The extension did not include the additional 2-3 months that the President’s office requires to retrieve and provide the information, nor the time to undertake consultations (covered under 9(1)(b)).

[21] In light of the above, I am satisfied that PHAC applied sufficient rigour and logic as part of a serious effort to determine the duration of the extension of time, and the decision to extend the time limit by 1,800 days was reasonable and justified, given the circumstances that existed at the time the decision was made. As a result, PHAC met the third requirement for extending the time it had to respond to the access request under paragraph 9(1)(a).

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

[22] Paragraph 9(1)(b) allows institutions to extend the 30 days they have to respond to an access request when they can show the following:

That they need to carry out consultations on the requested records; and
Those consultations cannot reasonably be completed within 30 days; and
The extension of time is for a reasonable period, given the circumstances.

Does the institution need to carry out consultations on the requested records?

[23] In its representations, PHAC advised that its President’s exchanges are mainly with other federal, provincial and international organizations, and thus many consultations would need to take place. Given the request is for every subject on correspondence received and sent by the President, in an 8-day period, PHAC added that its ATIP Division would also need to consult internally on a wide range of subjects given how closely intertwined the information is between sectors of the organization and also with other institutions.

[24] In light of the above, I am satisfied that consultations are necessary.

Could the consultations reasonably be completed within 30 days?

[25] According to PHAC, it could not reasonably complete the consultations within the initial 30-day timeframe considering the large number of documents and consultation packages to be prepared on various topics, and that some of the institutions to be consulted, themselves, have limited capacity to review records.

[26] I am satisfied that the consultations could not reasonably be completed within 30 days.

Is the extension of time for a reasonable period, given the circumstances?

[27] Under paragraph 9(1)(b), PHAC has extended the timeframe to respond by an additional 150 days. The length of the extension of time, from PHAC’s perspective, is conservative given its experience in consulting other institutions coupled with the uncertainty given the evolving pandemic. The extension was taken to account for the amount of time required to prepare the consultation packages for the numerous internal and external organizations as well as the time these organizations require to respond.

[28] In light of the above, I am satisfied that the length of time taken pursuant to paragraph 9(1)(b) was for a reasonable period, given the circumstances.

Was the time extension validly claimed?

[29] To claim the extension, institutions must notify the requester of the following no more than 30 days after receiving the access request:

that they are taking an extension and under which paragraph 9(1)(a) or 9(1)(b), in this case;
the duration of the extension; and
that the requester has the right to complain to the Information Commissioner about the extension.

[30] I am satisfied that PHAC met the three requirements to claim a time extension, by sending a notification containing the requisite information to the requester within 30 days of receiving the request.

[31] While it does not please me to accept a 5-year extension of time, I am unable to find, given the factors listed above, that it is unreasonable in the circumstances. The extended due date to respond to the request, therefore, remains November 23, 2026.

Observation

[32] Of note is that the complainant, in the original request text, indicated that they would not re-scope or limit the access request.

… notwithstanding PHAC’s commitment to collaborate with the requester to help focus the request and thereby allow a response to be provided more quickly, the requester made it clear that they would not be open to narrowing the scope. Given this, PHAC was left with little option than to move forward with the extension. PHAC remains open to discussing options to narrow the request further and has communicated that to the requester.

[33] On June 24, 2021, the complainant reached out to the ATIP Coordinator to confirm that the request had been received. The same day, the ATIP Coordinator confirmed that the request had been received and that the complainant would be notified of any necessary extensions of time.

[34] On July 29, 2021 a Manager within PHAC’s ATIP Division contacted the complainant, following several media reports about the time extension taken in this instance. In this correspondence, the Manager re-iterated that should the complainant wish to explore narrowing the request in order to expedite its processing, that PHAC would remain open to collaborating. The Manager also invited the complainant to reach out in order to discuss. No response was received.

[35] Had the complainant identified records of particular interest, based on topic, within the 30,000 identified pages, the request may have been processed within a shorter timeframe. While I routinely encourage institutions to assist requesters as part of their legislated obligations under subsection 4(2.1) – the duty to assist – the complainant’s restrictions in this instance hampered these efforts at the outset.

[36] It is true that the Act does not require requesters to indicate what they are looking for exactly. No subject matter is necessary, as long as the request provides “sufficient detail to enable an experienced employee of the institution to identify the record with a reasonable effort (section 6)”.

[37] Identifying 8 days of correspondence is not difficult in terms of what is required under the Act. That said, the fact is that within the 30,000 pages of records identified in response to this request, there may be personal messages, email regarding internal human resources issues, etc.; i.e. records that could perhaps have been removed from the scope, had the complainant agreed to discuss the scope of the request with PHAC ATIP officials. Not being specific means retrieving and processing everything – work which is done by the same team responsible for responding to the other 756 access requests received last fiscal year.

[38] While requesters are not obligated to negotiate with institutions, I would expect the same level of collaboration from them than from institutions; without it, our access system will continue to suffer.

[39] I further note that during the course of the investigation, as is our normal practice, my office reached out to the complainant to see if they were now willing to narrow the scope of their request, based on a particular topic of interest, with a view to obtain a much faster disclosure date. The complainant confirmed that while they are willing to collaborate to make this request happen, they would not amend the scope nor breadth of the request.

[40] While I have found that PHAC has demonstrated that its time extension is reasonable in the circumstances, I note that it did submit in its representations the following:

PHAC hoped that:

the requester would eventually agree to narrow the focus the request,
by separating the records by subject, it would be possible to share this file among several analysts,
the page count may be lower than initially provided (though this appears less and less likely as new information is received),
a significant number of duplicates may be identified, or that sections of information could be easily identified for release or redaction,
a significant increase in new resources would be possible and permanent funding established, and
incoming request levels decrease considerably.

[41] Should any of these circumstances happen in the next few years, I urge PHAC to use the opportunity to process the request as quickly as possible.

Result

[42] The complaint is not well founded.

Section 41 of the Act provides a right to the complainant who receives this report to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.