Decisions

The complainant alleged that the Department of Justice Canada (Justice) had improperly withheld information under subsection 16(2) (facilitating the commission of an offence) and 19(1) (personal information), paragraphs 21(1)(a) (advice and recommendations), 21(1)(b) (accounts of consultations or deliberations), section 23 (solicitor client and litigation privilege), and excluded information under subsection 69(1) (cabinet confidences) of the Access to Information Act in response to a request for records related to the Alternate Independent Process (AIP) for St-Anne’s Residential School hearings for a specific time period. The complaint falls within paragraph 30(1)(a) of the Act. Justice could not show that it met all the requirements of section 23, whether solicitor-client or litigation privilege, in regards to several records consisting of communications that took place beyond the scope of solicitor-client relationship. More particularly, Justice did not establish the existence of common interest privilege with regard to different parties to litigation despite its claims of a sui generis relationship between parties established under the Indian Residential Schools Settlement Agreement (IRSSA).The Information Commissioner recommended that the Minister of Justice disclose all of the information withheld pursuant to section 23 which does not meet the requirements of the exemption, including but not limited to, exchanges between Justice and other parties to the litigation. Justice gave notice to the Commissioner that it maintains the application of section 23, but that it undertakes to review the records at issue to determine what information could be disclosed in the context of the overall application of the Act. The complaint is well founded.

On August 31, 2022, the Office of the Information Commissioner (OIC) received a complaint alleging that the institution did not respond within an extension of time taken to respond to an access request. The complaint also expressed concerns about the institution’s conduct when communicating with them about the request.

The OIC has accepted the complaint about the delay in responding to the access request. However, the complaint about the institution’s alleged inappropriate conduct when communicating with the complainant about the request is inadmissible because it was submitted after the 60-day time limit for doing so.

Under section 31 of the Act, requesters “shall” submit their complaint within a prescribed time limit. “Shall” means “must”—that is, it is mandatory for requesters to submit their complaints on or before the 60-day time limit.

The prescribed time limit to submit complaints is 60 days after one of the following:

• the day requesters receive a notice under section 7 that the institution refuses to grant access to part or all of the requested records
• the day requesters obtain access to part or all of the requested records
• in any other case, the day requesters become aware that grounds for complaint exist

The Act does not allow the Information Commissioner to investigate complaints submitted to her after the 60-day time limit. Nor does the Act give the Commissioner the power to extend this time limit.

On May 2, 2022, the complainant received an email from the institution advising them that they would not receive any information of value in response to their access request because the institution would have to withhold all the information from disclosure under the Act. The institution asked if the complainant would agree to abandon their request and provided other options to consider regarding other records they might wish to receive. On May 22, 2022, the complainant advised the institution that they did not wish to abandon their access request. On the same day, the institution informed the complainant that it would process the request.

It was the complainant’s view that the 60-day period for submitting their complaint started on August 25, 2022, the date on which the extended timeframe to respond expired, because this was when they had the required degree of knowledge needed to discover the ground of complaint and trigger the limitation period. The complainant also stated, “Until August 25, 2022, the grounds for the complaint did not manifest as I continued to rely upon the institution to act in good faith to remedy its inappropriate conduct.”

The alleged inappropriate conduct, however, occurred on May 2, 2022, when the institution informed the complainant by email of the manner in which it proposed to address the access request. After that date, the institution did not further ask the complainant to abandon their request or discuss other options to obtain records. The communications with the institution between May 22 and August 25, 2022, were mainly follow-ups on the response to the access request and on whether the institution would withhold information from disclosure.

Whether or not the institution responded to the request within its extension of time had no bearing on the date the complainant became aware of the institution’s alleged inappropriate conduct when communicating with them. The 60-day time limit to file a complaint about the institution’s communications was not suspended until the complainant found out if the institution would respond to their request within its extension of time.

The May 2, 2022, email triggered the 60-day time limit to complain about the alleged inappropriate communications. The complaint was submitted outside that period. Accordingly, the complaint regarding the institution’s alleged inappropriate communications is inadmissible.

The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under section 23 (Solicitor-client) of the Access to Information Act in response to an access request for information relating to regulations pursuant to the Food and Drugs Act and related litigation. While the information met the requirements of section 23, LAC did not provide any information indicating that it had considered its obligation to exercise its discretion to decide whether to disclose the information. Consequently, LAC did not show that it had reasonably exercised its discretion. The Information Commissioner ordered that LAC re-exercise its discretion to decide whether to disclose the withheld information, taking into account all relevant factors. LAC gave notice to the Commissioner that it would implement the order and would re-exercise discretion to decide whether to disclose the information at issue, taking into account all relevant factors for and against disclosure. LAC subsequently provided the Commissioner with an explanation of its decision on discretion.

The complaint is well founded.