Privy Council Office (Re), 2020 OIC 12

Date: 2020-11-09
OIC file number: 3217-00069
Institution file number: A-2016-00695/NM

Summary

[1]      The complainant alleged that the Privy Council Office (PCO) did not respond to an access request within the time limits set out in the Access to Information Act. The access request consisted of minutes of the Joint Intelligence Committee from 1971. PCO claimed an extension of time to respond to the access request, in part to conduct consultations with other government institutions. When the consulted institutions did not respond before the deadline, PCO sent a letter informing the complainant that it would not be processing the access request because it had not received recommendations from other government institutions, and closed the file, according to its “no late file” policy.

[2]      The Act does not authorize PCO to fail to respond to an access request on the grounds that it has yet to receive recommendations from consulted institutions. The Office of the Information Commissioner concludes that PCO was in deemed refusal pursuant to subsection 10(3) of the Act.

[3]      The Information Commissioner recommended that the Clerk of the Privy Council take the necessary steps to respond to the access request by November 16, 2020 and revoke or revise its current policy so that the processing of all requests are in accordance with its obligations under the Act. PCO agreed to implement both recommendations.

[4]      The complaint is well founded. PCO has since responded to the access request.

Complaint

[5]      The complainant alleged that the Privy Council Office (PCO) did not respond to an access request within the time limits set out in the Access to Information Act.

Investigation

[6]      On December 23, 2016, PCO received an access request for minutes of the Joint Intelligence Committee for the period 1 January to 31 December 1971.

[7]      Within the statutory time frame to do so, PCO claimed a 30-day extension of time to respond to the access request under paragraph 9(1)(a) of the Act, extending the due date to February 21, 2017.

[8]      On February 21, 2017, the day that a response was due, PCO sent a letter informing the complainant that it would not be processing the access request because it had yet to receive recommendations from other government institutions that it had consulted. The letter went on to state that: “In the event the consultation results in additional records to be disclosed, we will forward them to you once the consultative process is complete.” The investigation would later show that PCO then closed its file as completed.

[9]      Pursuant to section 10, the following three circumstances are the only basis upon which a government institution can refuse to disclose records requested under the Act:

• the records do not exist and thus cannot be provided;
• disclosure is refused based on a specified exception(s) to the right of access set out in the Act; or
• an institution can neither confirm nor deny the existence of records.

[10]    In this case, none of the above circumstances existed. The Act does not authorize PCO to fail to respond to the access request on the grounds that it had yet to receive recommendations from consulted institutions.

[11]    In light of the above, I conclude that PCO was in deemed refusal pursuant to subsection 10(3) of the Act.

[12]    Contrary to PCO’s letter to the complainant dated February 21, 2017, PCO’s processing documents indicate that it only began its consultations with other government institutions on April 19, 2018. It appears that the consultations were sent out only after the Office of the Information Commissioner’s (OIC) management team raised the investigation file with PCO’s representative because they had failed to respond to the OIC’s request for representations.

[13]    According to PCO ATIP’s processing notes, consultations on the 323 responsive pages were sent to three government institutions: the Canadian Security Intelligence Service (CSIS), the Department of National Defence (DND) and Global Affairs Canada (GAC). All of the consulted institution responded between June 2018 and December 2019.

[14]    It is not clear why, given that PCO had the responses to all of the consultations since December 2019, a final response was not sent to the complainant.

[15]    The OIC gave PCO several opportunities to provide its representations pursuant to paragraph 35(2)(b) and to provide a final date by which it would respond to the complainant. PCO responded to one request for representations on May 16, 2018, advising that it would respond to the request by May 20, 2019. PCO failed to respond to the request by this date.  PCO did not respond to subsequent requests for representations.

[16]    As mentioned above, the OIC’s investigation revealed that, while consultations were ongoing, the access request was considered fulfilled by PCO and the file was closed.  In addition, the OIC investigation determined that at least part of the motivation for closing files on the day that the legislated due dates were set to expire, is that the PCO ATIP office has a “no late file” policy. Email correspondence between PCO ATIP analysts and other government institutions confirms this practice.

[17]    In these email exchanges, consulted institutions were informed, when attempting to negotiate a date by which to respond to a consultation request from PCO, that PCO would be closing its file for the request regardless of a response, because the extended due date was approaching. It is my understanding from these exchanges that PCO ATIP officials were instructed not to keep a file open past its due date.

[18]    This explains the statistics reported by PCO in its ATIP Annual Reports regarding its access response times, and why those statistics cannot be reconciled with the findings of investigations reported by the OIC. For instance, despite PCO reporting in its 2017-18 and 2018-19 ATIP Annual Reports that 100% of its requests were responded to on time, only 3 of the 48 delay complaints investigated by the OIC during that time frame were determined to be not well founded.

Result

• The complaint is well founded.

Recommendations

[19]    I recommend that the Clerk of the Privy Council:

• Take the necessary steps to respond to the access request by November 16, 2020.
• Email a copy of the response letter to the Office of the Information Commissioner’s Registrar (Greffe-Registry@oic-ci.gc.ca).
• Revoke or revise PCO’s current “no late file” policy so that PCO’s processing of requests are in accordance with its obligations under the Act.

[20]    On September 30, 2020, I provided my initial report to the Clerk of the Privy Council, setting out my recommendations and asking that I be notified of PCO’s response by October 20, 2020.

[21]    On October 19, 2020, PCO provided notice that it would implement my recommendations to respond to the request by November 16, 2020 and send my office a copy of the response. Additionally, PCO has confirmed that it no longer closes access request files while consultations are outstanding.

[22]    Section 41 of the Act provides a right to the complainant who receives this report to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43. 

Caroline Maynard
Information Commissioner of Canada