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Shared Services Canada (Re), 2024 OIC 72

Date: 2024-11-15
OIC file number: 5824-00645
Access request number: A-2024-00014

Summary

The complainant alleged that the length of the extension of time Shared Services Canada (SSC) 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 pertaining to the preparation of solicitation documents, approvals and decisions from SSC from January 1, 2020, to April 8, 2024.  This allegation falls under paragraph 30(1)(c) of the Act.

The Information Commissioner found SSC’s use of a benchmark for how many of the expected 15,000 pages of responsive records it could process a month (500 pages) to be unreasonable. She also disagreed with SSC’s decision to factor into the length of the extension anticipated delays due to problems with ATIP Express, SSC’s new access software. While acknowledging the institution’s difficulties, the Commissioner noted that the implementation of software must not unduly affect requesters’ access rights. Institutions must ensure that software is thoroughly tested and includes the necessary features to facilitate timely access before rolling it out, since poorly functioning technology can lead to inefficiencies and, in turn, delays. Given that the Treasury Board of Canada Secretariat approved institutions’ use of ATIP Express, and that this software affects the implementation of the Act, the Commissioner will monitor its performance closely to determine whether the existing issues are resolved and whether new ones arise.

The Commissioner found the extension of time to be unreasonable. She ordered SSC to provide interim releases every three months and a complete response to the access request no later than September 30, 2025. The President of Shared Services gave notice to the Commissioner that he would implement the orders. 

The complaint is well founded.

Complaint

[1]      The complainant alleged that the extension of time taken by Shared Services Canada (SSC) under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for all records in the possession or custody of or under the control of SSC pertaining to the preparation of solicitation documents, approvals and decisions from SSC for the time period January 1, 2020 to April 8, 2024.

[2]      This 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]      SSC received the access request on April 8, 2024. On May 7, 2024, SCC notified the complainant that pursuant to paragraphs 9(1)(a) and 9(1)(c), an additional 750 days would be required to complete the processing of the request. If the extension were valid, the time limit for the response would be May 28, 2026.

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)?

Is the access request for a large number of records?

[6]      SSC advised the Office of the Information Commissioner (OIC) that, at the time the extension was taken, it had determined that over 12,000 pages of responsive records would be received.

[7]      Therefore, SSC demonstrated that the request was for a large number of records.

Would meeting the 30-day time limit reasonably interfere with the institution’s operations?

[8]      During its investigation, the OIC was made aware that new managing and processing software had impacted the review of the records, specifically in the detection of duplicate documents, and limitations to the search function. SSC explained that these issues further impacted the ability to determine the number of third parties which may need to be consulted. In addition, SSC represented that the ability to determine the status of the review process is currently not automated and as such, SSC was required to complete a manual count of pages reviewed to-date. SSC initiated meetings with the software vendor and, as a result, numerous duplicate pages were detected and removed. SSC advised that the number of documents requiring review was reduced to 6,800 pages.

[9]      Additionally, when calculating the extension of 750 days, SSC also considered the length of time required for review by the analyst, the team leader and the Deputy Director.

[10]    Therefore, SSC 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 of time for a reasonable period, having regard to the circumstances?

[11]    SSC took a 750-day time extension pursuant to paragraph 9(1)(a). It considered the following factors to explain the length of the time extension:

  • the volume of responsive records, originally estimated around 12,000 pages, then 15,455.
  • The length of time required for 3 levels of review to be completed: Analyst, Team Leader, and Deputy Director;
  • Potential delays from the implementation of a new software.

[12]    Although the request is for a relatively large volume of records, and a time extension would be necessary in order to review and provide a full and complete response to the access request, SSC did not demonstrate how a time extension as long as 750 days under paragraph 9(1)(a) is justified in the circumstances.

[13]    Specifically, while I recognize that SSC experienced difficulties related to the implementation of the new ATIP Express software, this should not unduly affect the requester’s rights to a timely response.

[14]    Additionally, while this request was for a large volume of records, the OIC acknowledges the uniqueness of each complaint, and examines them on their own merit. Consequently, the OIC does not prescribe to any guideline, nor will the OIC stipulate that a specific number of pages must be processed monthly.

[15]    In this case, given the specific circumstances, I find that the 500 pages used as a benchmark by SSC was not reasonable. Since SSC 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 SSC under paragraph 9(1)(c).

Subsection 10(3): deemed refusal of access

[16]    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.

[17]    Given that SSC did not establish that the extension of time taken was reasonable, I conclude that SSC is deemed to have refused access pursuant to subsection 10(3).

[18]    Prior to responding to the request, SSC indicated that consultations with third parties may be required once review of the records is complete. Sections 27 and 28 of the Act set out a legislated process for institutions to give third-parties the opportunity to provide representations.                                    

[19]    While recognizing that in some circumstances, it may be appropriate for an institution to consult, SSC bears the ultimate responsibility in ensuring that the consultation process does not unduly delay access.

[20]    Additionally, SSC represented that a learning curve was anticipated during the implementation of new Access software, which would impact the review of records. SSC further explained that the new system did not have a search function, did not allow for marking duplicates, nor did it indicate the total number of pages in the request or the number of pages reviewed.

[21]    While I recognize the importance of modernizing ATIP software, especially in light of the digital world, it is crucial that these updates do not impede the right of access. It is vital that institutions ensure their new ATIP processing software is thoroughly tested and provides the necessary functions in order to facilitate timely access. It is known that deploying unrefined technology can lead to inefficiencies that amplify the work required by personnel and lead to delays, which intrinsically undermine the goals of modernization.

[22]    In this instance, SSC has indicated that it had notified the vendor that the lack of said functions is detrimental to effective analysis in large files such as this and noted that it has successfully resolved a number of the processing issues through collaboration with the vendor. Additionally, SSC communicated with the Treasury Board Secretariat (TBS) and Public Services and Procurement Canada regarding the multiple issues experienced with the newly-implemented software and the limitations experienced. Given this is a new software approved by TBS, and which affects the implementation of the Act, I plan to monitor its performance closely to determine whether the existing issues are resolved or if new ones arise.

[23]    During the investigation, SSC discussed the status of the request with the complainant and indicated that they believe that they will be able to complete the file by September 30, 2025. The complainant stated that they would be in agreement with this timeline, with the caveat that interim releases be provided. SSC responded that they would aim for interim releases approximately every 3 months and the complainant has accepted this proposal.

[24]    Considering these points, and the agreed-upon plan for interim responses, I find this response timeline to be reasonable. Consequently, I conclude that SSC must issue the response without undue delay, but no later than September 30, 2025.

Outcome

[25]    The complaint is well founded.

Order

I order the President of Shared Services Canada to:

  • provide interim releases every 3 months; and
  • provide a complete response to the access request no later than September 30, 2025.

Initial report and notice from institution

On October 8, 2024, I issued my initial report to the President setting out my order.

On November 7, 2024, the President gave me notice that he would be implementing my orders.

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.

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