Transport Canada (Re), 2024 OIC 56
Date: 2024-08-14
OIC file number: 5823-04205
Access request number: A-2023-00471
Summary
The complainant alleged that Transport Canada did not respond to an access request within the 30‑day period set out in section 7 of the Access to Information Act. The request was for records from specific dates related to the operation and restrictions applied to determined aircraft, received and distributed by a specific employee. The allegation falls under paragraph 30(1)(a) of the Act.
Transport Canada did not meet its obligation to respond to the request within the 30-day period.
The investigation revealed that the program area, Safety and Security, took three months to locate 148 pages of potentially responsive records.
The Information Commissioner ordered Transport Canada to provide a complete response to the access request no later than the 36th business day following receipt of the final report. Transport Canada gave notice to the Commissioner that it would likely be in a position to comply with the order. The Commissioner advised that, 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 Transport Canada did not respond to an access request within the 30‑day period set out in section 7 of the Access to Information Act. The request was for records from specific dates related to the operation and restrictions applied to determined aircraft, received and distributed by a specific employee. The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
Time limits for responding to access requests
[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. When an institution does not respond to a request within the 30-day or extended period, it is deemed to have refused access to the requested records under subsection 10(3).
[3] Nevertheless, the institution is still required to provide a response to the access request.
What is a response?
[4] 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.
[5] 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?
[6] Transport Canada received the access request on January 4, 2024 but neither extended the period within which it had to respond to the request under subsection 9(1) nor transferred the request. This means that the 30-day period under section 7 still applied.
[7] Transport Canada did not respond to the access request by this date. I conclude, therefore, that Transport Canada did not meet its obligation to respond to the request within the 30-day period. Transport Canada is deemed to have refused access to the requested records under subsection 10(3).
[8] Transport Canada advised that it requested responsive records from the Office of Primary Interest (OPI), Safety and Security, on January 8, 2024. On April 8, 2024, it received 148 pages of potentially responsive records. Moreover, Transport Canada stated that, since the records were provided past the legislated due date, it did not take an extension pursuant to paragraph 9(1)(b) for this request.
[9] Transport Canada explained that it completed its review of these records, identifying twelve pages that contain potential Cabinet confidences. Transport Canada also explained that it sent the twelve pages for consultation with Transport and Infrastructure Legal Services (TILS) on June 27, 2024, and, according to its service standards for the review of a Cabinet confidence binder, expected to complete the process by September 25, 2024.
[10] Therefore, Transport Canada provided a planned response date of October 18, 2024.
[11] I find the delay taken by Transport Canada to retrieve, review, consult and ultimately respond to this access request, given the small amount of documents (148 pages) at issue, unacceptable. Collectively, officials at Transport Canada have failed to meet their obligation to ensure that this access request was responded to in accordance with the requirements of the Act. The Minister should remind his public officials of their responsibility in providing timely access to information to Canadians. It is up to the head of the institution, here the Minister of Transport, to ensure that this is understood and respected within the institution.
[12] Considering how long the response to the access request has been outstanding, I find that Transport Canada must issue the response without undue delay.
Outcome
[13] The complaint is well founded.
Order
I order the Minister of Transport to provide a complete response to the access request no later than the 36th business day following receipt of the final report.
Initial report and notice from institution
On July 11, 2024, I issued my initial report to the Minister of Transport setting out my order.
On August 9, 2024, the Director of Access to Information and Privacy gave me notice that Transport Canada would likely be in a position to comply with the order.
I remind the Minister that, if he does not intend to fully implement my order, he must apply to the Federal Court for a review by the deadline 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, the order(s) takes effect on the 36th business day after the date of this report.