Department of Justice Canada (Re), 2020 OIC 6
Date: 2020-08-10
OIC file number: 5820-00460
Institution file number: A-2016-01750
Summary
[1] The complainant alleged that the Department of Justice Canada (Justice) missed the deadline for responding to a request under the Access to Information Act. On October 31, 2019, upon completion an investigation, the Information Commissioner sent Justice a recommendation to respond to the request by December 15, 2019. Justice did not accept the recommendation, but committed to have the records disclosed by April 27, 2020. The Office of the Information Commissioner (OIC) complaint file was therefore closed on the basis of this commitment disclosure date. When Justice failed to respond to the request by April 27, 2020, the OIC received the current complaint regarding the ongoing refusal of access. Pursuant to subsection 10(3) of the Act, when an institution fails to give access to a record requested, or a part thereof, within the time limits set out in the Act, the head of the institution is “deemed” to have refused to give access. The complaint is well founded. The Information Commissioner ordered Justice to respond to the access request by September 30, 2020.
Complaint
[2] The complainant alleges that the Department of Justice Canada (Justice) missed the deadline for responding to a request under the Access to Information Act.
Investigation
[3] On January 18, 2017, Justice received an access to information request for information about any documents exchanged in relation to the use by Canadian of overseas accounts.
[4] On September 26, 2017, the Office of the Information Commissioner (OIC) received a complaint alleging that Justice failed to respond to the request within the time frames set out in the Act.
[5] On October 31, 2019, upon completion of the investigation, I sent Justice a formal recommendation to respond to the request by December 15, 2019. Justice did not accept my recommendation, in part because it took the position that it could not proceed with reviewing the records (8,039 pages) until it received the final 200 pages, which at the time were with Canada Revenue Agency for consultation. Justice indicated that it required an additional 152 days to respond to the request, and therefore expected to have completed its review of the records by April 27, 2020. The OIC complaint file was therefore closed on the basis of this commitment disclosure date.
[6] When Justice failed to respond to the request by April 27, 2020, the OIC received a new complaint regarding the ongoing refusal of access.
[7] On May 6, 2020, the OIC received Justice’s processing file, which indicated that a response to the request is still outstanding. On May 28, 2020, the OIC asked Justice to provide its representations in this regard.
[8] On July 7, 2020, Justice provided the following response:
Though we had every intention of completing our review of the relevant records by April 27th, I hope you will understand that our department’s response to the global pandemic has had a considerable impact on the efficiency of our ATIP operations over the past few months. Key resources who were working on this file were unable to review records without physical access to our workspace and so it has taken us some time to be in a position to continue the work that we had planned to finish by the end of April. Frankly, not all of our ATIP employees had been set up to work from home, and as a result the capacity of the organization was somewhat limited. They have now all been equipped.
We have arranged to resume our work on this file and we are in the final stages of preparing an interim release of documents related to this request. We will disclose this interim release to the requestor by the 17th of July. We also have adopted a plan for reviewing the rest of the documents related to this request that would allow us to complete it by the end of September. I hope you will appreciate that the efficiency of our employees has been impacted as a result of working remotely. This is why we expect it will take longer to fully assess all of the relevant documents than we had previously planned. [Emphasis added]
[9] Justice indicated its intention to meet its obligations under the Act as swiftly as reasonably possible.
[10] Justice issued an interim response, consisting of 47 of the total 8,039 pages, to the complainant on July 17, 2020.
[11] Pursuant to subsection 10(3) of the Act, when an institution fails to give access to a record requested, or a part thereof, within the time limits set out in the Act, the head of the institution is “deemed” to have refused to give access.
[12] Justice conceded in its representations that it has failed to respond to the access request; therefore, Justice has been in deemed refusal pursuant to subsection 10(3) of the Act since early 2017.
[13] Justice had previously committed to responding to the request by April 27, 2020. It is understood that business operations were impacted by the COVID-19 pandemic beginning in mid-March 2020. Thus, Justice has suggested that, but for Justice’s inability to continue working from mid-March to the April response date (approximately 45 days), it would have been able to respond by April 27, 2020.
[14] Justice confirmed in its representations of July 7, 2020, that its Access to Information and Privacy officials were equipped to do their work. However, Justice claimed that it now needs more than two additional months to complete its processing of the request. The reason given for this discrepancy is that working remotely has had an impact on the efficiency of Justice’s employees.
[15] I understand the challenges presented by the COVID-19 pandemic; however, this does not change the fact that Justice is and continues to be in deemed refusal.
[16] According to its representations, Justice has adopted a work plan that will allow it to respond to the request by September 30, 2020. I am of the view that this is reasonable, given all of the circumstances described above.
Results
- Justice is deemed to have refused access to the requested information, as per subsection 10(3).
- The complaint is well-founded.
Order
[17] Pursuant to subsection 36.1(1) of the Act, I order Justice to:
- Provide a final response to the request for information submitted on
January 18, 2017, by September 30, 2020 (as per paragraph 36.1(4)(a)); and,
- Email a copy of the response letter to the Office of the Information
Commissioner’s Registrar (Greffe-Registry@oic-ci.gc.ca).
[18] On July 30, 2020, I provided to Justice my Initial Report setting out my finding and my intention to order Justice to respond to the access request by September 30, 2020.
[19] On August 6, 2020, Justice confirmed that it will complete the request by September 30, 2020.
[20] Section 41 of the 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).
Caroline Maynard
Information Commissioner of Canada