Public Safety Canada (Re), 2023 OIC 07
Date: 2023-03-10
OIC file number: 5822-04510
Institution file number: A-2022-00159
Summary
The complainant alleged that the length of the extension of time Public Safety Canada (Public Safety) 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 between the Royal Canadian Mounted Police and Public Safety Canada for the period of May 1 to 31, 2022. The complaint falls within paragraph 30(1)(c) of the Act. Public Safety claimed a 240-day extension of time pursuant to paragraphs 9(1)(a) and 9(1)(b). If the extension were valid, the time limit for the response would be June 12, 2023. Public Safety could not show that it met all the requirements of paragraphs 9(1)(a) and 9(1)(b), in particular that the calculation of the time extension was sufficiently logical and supportable, or 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. Given that Public Safety did not establish that the extension of time was reasonable, the extension is invalid and Public Safety is deemed to have refused access under subsection 10(3). The Information Commissioner ordered the Minister of Public Safety to provide a complete response to the access request on the 36th business day following the date of the final report. The Director of ATIP and Executive Services at Public Safety gave notice to the Commissioner that they would be implementing her order.
The complaint is well founded.
Complaint
[1] The complainant alleged that the length of the extension of time Public Safety Canada (Public Safety) 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 between the Royal Canadian Mounted Police (RCMP) and Public Safety Canada for the period of May 1 to 31, 2022. The complaint falls within 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] Public Safety received the access request on September 13, 2022, and extended the period within which it had to respond to the request by 240 days under paragraphs 9(1)(a) and 9(1)(b). If the extension were valid, the time limit for the response would be June 12, 2023.
Notification
[4] To extend the period for responding to access requests, institutions must notify requesters of the following no more than 30 days after receiving the request:
- they are extending under paragraph 9(1)(a), (b) and/or (c) the period for responding to the request;
- the duration of the extension (for extensions under paragraphs 9(1)(a) and (b)); and
- the requester has the right to complain to the Information Commissioner about the extension.
[5] Institutions must also show that the requirements of the paragraph of subsection 9(1) they are relying on to extend the 30-day period are met.
Paragraph 9(1)(a): extension of time due to volume of records
[6] 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 deadline would unreasonably interfere with the institution’s operations; and
- the extension of time is for a reasonable period, having regard to the circumstances.
Paragraph 9(1)(b): extension of time for consultations
[7] 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; and
- 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 properly notify the complainant of the extension of time?
[8] Public Safety sent a notice to the complainant within 30 days after receiving the access request. The notice indicated that the extension of time was for 240 days and that it was taken under paragraphs 9(1)(a) and 9(1)(b). In the notice, Public Safety also informed the complainant of their right to complain to the Information Commissioner about the extension of time.
[9] The complainant was properly notified.
Did the institution show that it met the requirements of paragraph 9(1)(a)?
Was the access request for a large number of records?
[10] Public Safety has stated that only 29 records, totalling 124 pages, fall within the scope of the request. I am not satisfied that this constitutes a large number of records.
Would meeting the 30-day deadline unreasonably interfere with the institution’s operations?
[11] I also note that Public Safety did not demonstrate how processing the access request within the 30-day time limit would unreasonably interfere with the institution’s operations.
Did the institution show that it met the requirements of paragraph 9(1)(b)?
Did the institution need to carry out consultations on the requested records?
[12] Public Safety stated that it had to consult with the RCMP on 98 of the 124 pages of records. As such, the institution needed to carry out the consultation with the RCMP.
Could the consultations reasonably be completed within 30 days?
[13] Public Safety contacted the RCMP to find out when they would be able to respond to the consultation request. The RCMP replied 180 days. This consultation cannot reasonably be completed within 30 days.
Is the extension for a reasonable period?
[14] The RCMP’s decision to request 180 days to complete the consultation was made according to its service standards based on the number of pages of records to be reviewed and not the complexity of the records in question. Considering the fact that the consultation only covered 98 pages and the fact that the RCMP based its decision on service standards and not on the complexity of the records in question, I am of the view that the extension of time is not reasonable. I conclude that Public Safety did not show that it met all of the requirements of paragraph 9(1)(b). Therefore, the extension is not valid, and the due date to respond remains October 13, 2022.
What is a response?
[15] 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.
[16] 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?
[17] Public Safety was required to respond to the request within 30 days, but did not do so. I therefore conclude that Public Safety is deemed to have refused access to the requested records under subsection 10(3).
[18] Public Safety has an obligation to ensure that access requests are responded to in accordance with the requirements of the Act for records under its control, including the application of limited and specific exemptions. While recognizing that in some circumstances it may be appropriate for one institution to consult with another institution to reassess its position on the application of an exemption, the institution that received the request bears the ultimate responsibility of ensuring that the consultation process does not unduly delay access.
[19] If a consulted institution fails to provide recommendations within a reasonable time, the institution that received the request is ultimately required to provide a timely response to the requester, without the benefit of the consulted institution’s recommendations.
[20] Public Safety has stated that it will be able to respond to the access request by March 31, 2023.
[21] Considering these points, and how long the response to the access request has been outstanding, I find that Public Safety must issue the response without delay.
Result
[22] The complaint is well founded.
Order
Under subsection 36.1(1) of the Act, I order the Minister of Public Safety provide a complete response to the access request on the 36th business day following the date of the final report.
On February 27, 2023, I issued my initial report to the Minister of Public Safety setting out my order.
On March 8, 2023, the Director of ATIP and Executive Services gave me notice that he would be implementing my order. In particular, he said that Public Safety would respond to the access request by March 31, 2023.
When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They must apply for this review 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.