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Global Affairs Canada (Re), 2021 OIC 26

Date: 2021-09-15
OIC file numbers: 5820-03951; 5820-03952, 5820-03958, 5820-03959, 5820-03960, 5820-03961, 5820-03963, 5820-03964 & 5820-03965
Institution file numbers: A-2020-00126, A-2020-00127, A-2020-00448, A-2020-00654, A-2020-00124, A-2020-00125, A-2020-00335, A-2020-00336 & A-2020-00337

Summary

On February 24, 2021, the Office of the Information Commissioner (OIC) received nine separate complaints about Global Affairs Canada (Global Affairs) missing the deadlines or taking an unreasonable time extension to respond to nine access requests made by the same individual under the Access to Information Act.

In four of the nine files, Global Affairs indicated that the COVID-19 pandemic had a significant impact on their ability to process the requests.

Global Affairs has committed to providing a final response for each of the nine files by October 15, 2021, due to the significant amount of work that remains to be done.

All nine complaints are well founded.

Complaints

[1]      On February 24, 2021, the OIC received nine separate complaints about Global Affairs missing the deadlines or taking an unreasonable time extension to respond to nine access requests made by the same individual under the Access to Information Act.

Investigations

  • Investigation 5820-03951 (A-2020-00126)

[2]      On June 9, 2020, Global Affairs received an access request for all records between March 1, and June 9, 2020, which discuss the impact of COVID -19 on the operational capacity of missions abroad. Based on the date of receipt, the statutory 30-day deadline for a response was July 9, 2020.

  • Investigation 5820-03952 (A-2020-00127)

[3]      On June 9, 2020, Global Affairs received an access request for all internal email communication from March 1, to June 9, 2020 at the deputy director level or above that was sent to Western Europe and East/South East Asia Canadian consulates and embassies outlining operating costs during the COVID-19 pandemic. Based on the date of receipt, the statutory 30-day deadline for a response was July 9, 2020.

  • Investigation 5820-03960 (A-2020-00124)

[4]      On June 9, 2020, Global Affairs received an access request for records (excluding e-mails) concerning recommendations and/or policy measures regarding Canada's position on the forced internment of the Uyghur minority by the People's Republic of China. Based on the date of receipt, the statutory 30-day deadline for a response was July 9, 2020.

  • Investigation 5820-03961 (A-2020-00125)

[5]      On June 9, 2020, Global Affairs received an access request for all records held at the Assistant Deputy Minister level and above concerning foreign customs tariffs and Canadian exports, as well as policy briefs by Canadian Officials with regard to the World Trade Organization. Based on the date of receipt, the statutory 30-day deadline for a response was July 9, 2020.

  • Investigation 5820-03963 (A-2020-00335)

[6]      On August 10, 2020, Global Affairs received an access request for records mentioning or discussing Marie Stopes International and any correspondence sent to Marie Stopes International. Based on the date of receipt, the statutory 30-day deadline for a response was September 9, 2020.

  • Investigation 5820-03964 (A-2020-00336)

[7]      On August 10, 2020, Global Affairs received an access request for all records and internal email communication sent or received at the Deputy Assistant Minister level or above concerning recommendations and/or policy measures regarding Canada's position on diplomatic relations with Taiwan, sometimes referred to as the Republic of China. Based on the date of receipt, the statutory 30-day deadline for a response was September 9, 2020.

  • Investigation 5820-03965 (A-2020-00337)

[8]      On August 10, 2020, Global Affairs received an access request for all records and internal email communication sent or received at the Deputy Assistant Minister level or above concerning recommendations and/or policy measures regarding Canada's position on Hong Kong. Based on the date of receipt, the statutory 30-day deadline for a response was September 9, 2020.

  • Investigation 5820-03958 (A-2020-00448)

[9]      On October 13, 2020, Global Affairs received an access request for briefing notes and meeting minutes for the Minister Champagne's meetings with diplomatic officials from the People's Republic of China, including but not limited to briefing notes with the terms "Kovrig" and "Spavor". On November 3, 2020, Global Affairs claimed a 180-day extension pursuant to paragraphs 9(1)(a) and 9(1)(b) that - if valid - would have extended the due date to May 11, 2021.

  • Investigation 5820-03959 (A-2020-00564)

[10]    On October 28, 2020, Global Affairs received an access request for records provided to Ministers Champagne and Ng regarding any proposed or discussed trade agreement between Canada and the United Kingdom. Based on the date of receipt, the statutory 30-day deadline for a response was November 27, 2020.

Subsection 10(3): deemed refusal of access

[11]    Under subsection 10(3), when institutions do not respond to an access request within either 30 days or the period for which they validly extended the time they had to respond, they are deemed to have refused access to the requested records.

[12]    During the investigation, Global Affairs provided the OIC with the following representations:

  • As evidenced by their current status, there have been significant delays in obtaining responsive records and recommendations from Global Affairs’ sectors in all nine files.
  • In four of the nine files (5820-03960, 5820-03961, 5820-03951, 5820-03952), Global Affairs indicated that the COVID-19 pandemic had a significant impact on their ability to process the requests. Global Affairs explained that health and safety measures had limited the number of employees that could enter the institution’s buildings since March 2020, including a complete office closure from mid-March to September 2020. To this effect, Global Affairs indicated that one of the information repositories (C6) that stored records responsive to these requests was not accessible remotely due to its secret status and that having employees from the responsible sectors enter buildings to retrieve the documents was a challenge.
  • Global Affairs committed to provide a final response for each of the nine files by October 15, 2021 due to the significant amount of work that remains to be done.

[13]    While I understand the operational challenges posed by the COVID-19 pandemic, the fact that these nine requests have not been responded to for a year after they were made is unacceptable. The ongoing delay is not consistent with the law, places the credibility of the access system in question, and fails to uphold the quasi-constitutional rights.

[14]    In this case, it is clear that the delay in responding to the requests mainly rests with Global Affairs’ sectors who have failed to provide records and recommendations to Global Affairs’ ATIP office in a timely fashion.

[15]    Under the Access to Information Act, institutions must respond to access requests within 30 days unless an extension is taken. Global Affairs is therefore responsible for ensuring that it has appropriate internal processes in place to meet this legislative deadline. I note that even in the one case (5820-03959) where an extension has been taken, the extended due date was missed and a response has still not been provided to the complainant.This is not the first time that Global Affairs has failed to meet its legislative obligations under the Access to Information Act and I will be monitoring the situation closely to ensure that these issues are not systemic in nature.

[16]    Based on the above, and given that Global Affairs has failed to respond to all nine requests by the legislated or extended due dates, Global Affairs is deemed to have refused access pursuant to subsection 10(3) of the Access to Information Act. While I understand that Global Affairs has now committed to respond to the requests by October 15th, 2021, it should be its goal to release responses before then.

Results

[17]    All nine complaints are well founded.

Order

Under subsection 36.1(1) of the Access to Information Act, I order the Minister of Foreign Affairs to:

  • Process all responsive records and provide a response to each of the nine requests at the latest on October 15, 2021.
  • Email a copy of the response letters to the Office of the Information Commissioner’s Registrar (Greffe-Registry@oic-ci.gc.ca).

On July 16, 2021, I provided my initial report to the Minister of Foreign Affairs, setting out my intended order.

On August 11, 2021, the Associate Deputy Minister of Foreign Affairs gave me notice that he would be implementing the intended order.

Section 41 of the Access to Information Act provides a right to any person who receives this report to apply to the Federal Court for a review. Complainants and institutions must apply for this review within 35 business days after the date of this report. The person who applies for a review must 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 will take effect in accordance with subsection 36.1(4).

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