Public Health Agency of Canada (Re), 2024 OIC 48
Date: 2024-07-26
OIC file number: 5823-04301
Access request number: PHAC-A-2023-000135
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 correspondence from specific dates sent or received by PHAC employees at the level of Assistant Deputy Minister or above related to standing offer 6D063-204744 and BTNX, Inc. The allegation falls under paragraph 30(1)(c) of the Act.
PHAC extended the time period by 255 days under paragraphs 9(1)(a), (b) and (c). If the extension were valid, the time limit for the response would be August 26, 2024.
PHAC could not show that it met all the requirements of paragraph 9(1)(a), in particular, that it had applied sufficient rigour and logic as part of a serious effort to determine a reasonable period for the extension of time.
Given that PHAC did not establish that the extension of time was reasonable, the extension is invalid and PHAC is deemed to have refused access under subsection 10(3).
The Information Commissioner ordered PHAC to provide a complete response to the access request no later than the 60th business day following receipt of the final report. PHAC gave notice to the Commissioner that it would comply with her order if no other unanticipated complexities arise. The Commissioner advised that, as indicated in her initial report, if the Minister does not intend to fully implement her order, he must apply to the Federal Court for a review within the time limit set out by the act.
The complaint is 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 correspondence from specific dates sent or received by PHAC employees at the level of Assistant Deputy Minister or above related to standing offer 6D063-204744 and BTNX, Inc.
[2] The allegation falls under paragraph 30(1)(c) 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.
[4] PHAC received the access request on November 14, 2023. On December 14, 2024, PHAC extended the time it had to respond to the request by 255 days under paragraphs 9(1)(a), 9(1)(b) and 9(1)(c). PHAC took an extension of 180 days under paragraph 9(1)(a), 75 days under paragraph 9(1)(b) and concurrently took 60 days under paragraph 9(1)(c). If the extension were valid, the time limit for the response would be August 26, 2024.
Extensions of time
Paragraph 9(1)(a): extension of time due to volume of records
[5] 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?
[6] PHAC advised that the search resulted in the retrieval of 2,962 pages. However, PHAC reported that the final number of pages was actually 1,805 after a glitch was noticed during the triage, which resulted in some documents being imported twice into the system.
[7] Nonetheless, PHAC demonstrated that a large number of pages fall within the scope of the access request.
Would meeting the 30-day deadline unreasonably interfere with the institution’s operations?
[8] PHAC indicated that the initial search resulted in the retrieval of 2,962 pages. Processing this many records and responding to the access request within 30 days would have monopolized PHAC resources.
[9] 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?
[10] PHAC considered several factors to ensure the extension of 180 days under paragraph 9(1)(a) would be as short as possible:
- The initial total volume of records of 2,962 pages and the need to identify any duplication;
- The complexity of the records, primarily consisting of emails and attachments that require more time per page for review compared to larger records that can be batch-reviewed;
- The need for extensive consultations that require more time for preparation and for reviewing representations received from stakeholders;
- The high workload and backlog in the Access to Information and Privacy (ATIP) office.
[11] To establish the timeframe, PHAC estimated a monthly review rate of 500 pages per 30 days, based not only on the team’s backlog of files for review but also on file-specific complications.
[12] I consider that PHAC did not provide any convincing explanation to justify why this rate was appropriate or reasonable in this particular case. While acknowledging that reviewing email records can sometimes be more complicated than other types of documents due to the potential duplication of email chains, I believe that the complexity of the request was not adequately justified by PHAC. Even if I were to accept that emails require more time for review, the reported number of emails appears insufficient to justify such a lengthy time extension. PHAC did not demonstrate that it had applied sufficient rigour and logic as part of a serious effort to determine the duration of the extension of time.
[13] Although the request is for a large volume of records, I conclude that PHAC failed to demonstrate the reasonableness of taking a time extension as long as 180 days under paragraph 9(1)(a).
[14] Since PHAC did not demonstrate that the extension of time taken under paragraph 9(1)(a) was reasonable, it is not necessary for the OIC to investigate the time extension taken by PHAC under paragraphs 9(1)(b) and 9(1)(c).
Subsection 10(3): deemed refusal of access
[15] Under subsection 10(3), when institutions do not respond to an access request within 30 days or by the end of the period for which they validly extended the period they had to respond, they are deemed to have refused access to the requested records.
[16] Given that PHAC did not establish that the extension of time taken was reasonable, I conclude that PHAC is deemed to have refused access pursuant to subsection 10(3).
[17] PHAC advised that on April 19, 2024, it dispatched 1,038 pages for consultation to its Legal Service Unit (LSU), anticipating a response by June 28, 2024.
[18] PHAC added that 800 pages were still waiting to be sent for consultation with federal and provincial institutions, however, because of the potential presence of Cabinet confidences, these consultations need to take place after the consultation with LSU is completed. Therefore, PHAC was unable to provide an accurate expected completion date for consultations and instead provided an estimate of September 30, 2024 as a best-case scenario.
[19] PHAC 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. 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.
[20] With regard to third-party consultations, PHAC did not provide information regarding the expected volume of records or the timeline for consultation, as it claimed that other consultations needed to occur first.
[21] The complainant has now been waiting over eight months 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 PHAC’s obligations under the Act and undermines the credibility of the access system.
[22] Considering these points and the length of time that the response to the access request has been outstanding, I find that PHAC must issue the response without undue delay.
Outcome
[23] The complaint is well founded.
Order
I order the Minister of Health to provide a complete response to the access request no later than the 60th business day following receipt of the final report.
Initial report and notice from institution
On June 26, 2024, I issued my initial report to the Minister, setting out my order.
On July 24, 2024, the Executive Director of Access to Information and Privacy gave me notice that PHAC would comply with my order if no other unanticipated complexities arise.
As indicated in my initial report, if the Minister does not intend to fully implement my order “to provide a complete response to the access request no later than the 60th business day following receipt of the final report”, he must apply to the Federal Court for a review within the time limit set out below.
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.