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Public Health Agency of Canada (Re), 2024 OIC 07

Date: 2024-03-14

OIC file number: 5823-01137

Institution file number: PHAC-A-2023-000005

Summary

The complainant alleged that the length of 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 records related to providing guidance to the provinces on social distancing from January 1, 2020 to April 26, 2022. The allegation falls under paragraph 30(1)(c) of the Act.

PHAC claimed a 1,380-day extension of time under paragraphs 9(1)(a) and 9(1)(b) to complete the processing of the request. If the extension were valid, the time limit for the response would be February 11, 2027.

During the investigation, PHAC showed that it met all the requirements of paragraphs 9(1)(a) and (b), in particular that the calculation of the time extension was sufficiently logical and supportable, and that providing access to the records within any materially lesser period of time than the one asserted would unreasonably interfere with its operations and that the consultations could not reasonably be completed within 30 days.

The OIC concluded that PHAC showed that it met all the requirements of paragraphs 9(1)(a) and (b). Therefore, the extension is reasonable and the due date to respond to the access request remains February 11, 2027. This being said, I invite the complainant and PHAC to collaborate to reduce the scope of the request so that fewer records will need to be processed and a response to the request could be released sooner.

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 records related to providing guidance to the provinces on social distancing from January 1, 2020 to April 26, 2022. The allegation falls under paragraph 30(1)(c) of the Act.

Investigation

[2]      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.

[3]      PHAC received the access request on April 3, 2023. On April 18, 2023, PHAC extended the time it had to respond to the request by 1380 days under paragraphs 9(1)(a) and 9(1)(b). If the extension were valid, the time limit for the response would be February 11, 2027.

Extensions of time

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

[4]      Paragraph 9(1)(a) allows institutions to extend the 30-day period for responding 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 time limit would unreasonably interfere with the institution’s operations; and
  • the extension of time is for a reasonable period, having regard to the circumstances.

Did the institution show that it met the requirements of paragraph 9(1)(a)?

Was the access request for a large number of records?

[5]      PHAC indicated that the search resulted in the retrieval of 97,801 pages, including a significant amount of duplication.

[6]      PHAC demonstrated that the request required a search through a large number of records.

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

[7]      PHAC indicated that the search resulted in the retrieval of 97,801 pages. Processing this many records and responding to the access request within 30 days would have monopolized PHAC resources.

[8]      PHAC showed that searching for and processing this many records and responding to the access request within 30 days—assuming it were even possible—would unreasonably interfere with the institution’s operations.

Is the extension for a reasonable period?

[9]      PHAC considered several factors to ensure the extension of 1170 days under paragraph 9(1)(a) would be as short as possible:

  • The total volume of records of 97,801 pages and the significant amount of duplication;
  • The complexity of the records, as the request will likely have to be assigned to a senior analyst or a consultant depending on availability of resources;
  • Some retrieval and processing already having been done for similar requests from other complainants;
  • The high workload in the Access to Information and Privacy (ATIP) Office with a backlog of 558 files and a total of 3.6 million pages awaiting review within the COVID team alone;
  • The calculation of the extension is based on a total volume of records of 97,801 pages as follows: 2500 pages per 30 days, for a total of 1170 days.

[10]    PHAC applied sufficient rigour and logic as part of a serious effort to determine the duration of the extension of time, making the period of 1170 days taken under paragraph 9(1)(a) reasonable and justified in the circumstances.

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

[11]    Paragraph 9(1)(b) allows institutions to extend the 30-day period for responding to an access request when they can show the following:

  • they need to carry out consultations on the requested records;
  • those consultations cannot reasonably be completed within 30 days; and
  • the extension of time is for a reasonable period, having regard to the circumstances.

Did the institution show that it met the requirements of paragraph 9(1)(b)?

Were the consultations necessary?

[12]    PHAC informed the Office of the Information Commissioner that consultations with Global Affairs Canada (GAC) and provinces and territories will be required, considering the context of the subject matter of the request.

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

Could the consultations reasonably be completed within 30 days?

[14]    PHAC indicated that the search resulted in the retrieval of 97,801 pages. Given the need to first retrieve records and prepare a consultation package before waiting for a response, I am satisfied that the required consultations could not reasonably be completed within the original 30-day period.

Is the time extension for a reasonable period?

[15]    PHAC took a 210-day extension under paragraph 9(1)(b). Given the triage is still ongoing, PHAC is not able to provide a complete list of consultations and the exact number of pages to be sent for consultation. It mentioned that the time needed for consultation is based on the average GAC response time.

[16]    Accordingly, I am satisfied that the length of the time extension taken pursuant to paragraph 9(1)(b) was for a reasonable period.

[17]    I conclude that PHAC showed that it met all the requirements of paragraphs 9(1)(a) and (b). Therefore, the extension is reasonable and the due date to respond to the access request remains February 11, 2027.

[18]    This being said, I invite the complainant and PHAC to collaborate to reduce the scope of the request so that fewer records will need to be processed and a response to the request could be released sooner.

Outcome

[19]    The complaint is not well founded.

Review by the 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. 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.

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