Decisions

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.

The complainant alleged that Health Canada had improperly withheld information under paragraphs 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and 20(1)(c) (financial impact on a third party) of the Access to Information Act. This wasin response to an access request for two versions of a non-clinical overview of the Novavax SARS CoV-2 rS vaccine. This complaint falls within paragraph 30(1)(a) of the Act.

Paragraph 20(1)(b) was applied to withhold two versions of a non-clinical overview of Novavax’s COVID-19 Vaccine which had been supplied to Heath Canada for the purpose of seeking Canadian marketing authorization.

The OIC is satisfied that the information qualifies for exemption as it is confidential third-party financial, commercial, scientific or technical information. Furthermore, the OIC concludes that the circumstances set out in subsections 20(5) and 20(6), which would require Health Canada to reasonably exercise its discretion to decide whether to release the information, did not exist when Health Canada responded to the access request.

The complaint is not well founded.

The complainant alleged that Environment and Climate Change Canada (ECCC) had improperly excluded information pursuant to paragraph 68(a) (material available for purchase) of the Access to Information Act. This was in response to an access request for real-time and archived weather radar data. The complaint falls within paragraph 30(1)(a) of the Act.

ECCC showed that the information was available for purchase through a cost-recovery system. As a result, the Act does not apply.

The complaint is not well founded.

The Information Commissioner determined that a complaint was inadmissible as it did not meet the requirements of section 31 of the Access to Information Act.

Under section 31, 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.

In the present instance, the complainant received the response from the institution by email but indicated that they had inadvertently deleted this email from their inbox before they had had the opportunity to review it.

It is the complainant’s view that they became aware of the grounds of complaint when they found the email and reviewed the content of the institution’s response and that the period for calculating the 60-day time limit to submit the complaint should start from that date.

However, it is clear from section 31 that Parliament wanted the period in which to submit a complaint to run from the day after the day the requester receives the response to their access request (a notice under section 7 or obtaining access to part or all of the requested records).

The words “in any other case” in section 31 refer to any situation other than receiving a response. Therefore, “in any other case” does not apply to the period Parliament prescribed as starting from when the requester receives the response. In addition, these words do not indicate that the prescribed period for submitting a complaint after a response is received can be extended.

If “in any other case” were interpreted as applying to the period that begins when requesters receive a response to their access and to the period that begins when they become aware that grounds for complaint exist, Parliament’s express references elsewhere in section 31 to the day requesters receive a notice under section 7 or receive records would not make sense.

The period for submitting the complaint began on the day after the response from the institution was received, not from the day the complainant found the deleted email.

Accordingly, the Information Commissioner did not accept the complaint as it was submitted outside the legislative timeframe set out in section 31.

The complainant alleged that Transport Canada had improperly withheld information under subsection 19(1) (personal information) and paragraphs 20(1)(a) (third-party trade secrets), 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and 20(1)(c) (financial impact on a third party) of the Access to Information Act. This was in response to an access request for specific types of records related to a Boeing 737 MAX aircraft system (Maneuvering Characteristics Augmentation System (MCAS)). The complaint falls within paragraph 30(1)(a) of the Act.

Personal information withheld under subsection 19(1) was removed from the scope of the complaint.

Transport Canada withheld the responsive records in full under paragraphs 20(1)(a), (b) and (c) concurrently.

The institution and third party did not demonstrate that the requirements of paragraph 20(1)(a) were met, that all of the information is confidential financial, commercial, scientific or technical information meeting the requirements of paragraph 20(1)(b) or that general and innocuous information met the requirements of paragraph 20(1)(c).

The Information Commissioner ordered that Transport Canada disclose specific information at issue and re-exercise discretion under subsection 20(6).

Transport Canada gave notice that it would disclose specific pages in accordance with the order.

The complaint is well founded.