2015 Chapter 3: Timeliness

The issue of delays has been persistently raised by information commissioners since 1983.

Inger Hansen (1983–1990)
Delaying access to information in effect destroys the purpose of the Act.
1984–1985 Annual Report

John Grace (1990–1998)
Most surprising — and dismaying — about the whole delay problem is that the Act already contains one of the most liberal extension-of-time provisions found in any freedom of information statute.
1993–1994 Annual Report 

John Reid (1998–2006)
It is my fervent hope that the day will come soon when I will be able to drop the problem of delay as my number one priority.
Remarks at the 1999 Canadian Access and Privacy Association conference

It appears that the problem of delay remains a significant concern.
2005–2006 Annual Report 

Robert Marleau (2007–2009)
The most significant and wide-reaching finding attests to the fact that the 30-day period intended by Parliament to be the norm in responding to information requests is the exception.
2007–2008 Special Report: Systemic Issues Affecting Access to Information in Canada

Suzanne Legault (2009–present)
Despite warnings and recommendations, delays continue to be the Achilles’ heel of the access to information system and have yet to be appropriately addressed by the government.
2008–2009 Special Report: Out of Time

Time limits in the Act

Initial response time

The Act requires institutions to respond to an access request within 30 calendar days of receipt. Responses can contain the records requested, a notification that the institution does not hold any responsive records or a notification that the institution is taking an extension to allow more time to respond completely and accurately to the request (section 7).

Extensions

The Act allows extensions for a reasonable period of time, having regard to the circumstances. There are three circumstances in which an institution may take an extension:

1. When the request is for a large number of records or necessitates a search through a large number of records and meeting the original time limit would unreasonably interfere with the operations of the institution (section 9(1)(a)).
2. When the institution does not expect to be able to complete necessary consultations on the records associated with the request within the original 30 days (section 9(1)(b)).
3. To consult third parties when they intend to disclose a record that contains (or may contain) third-party information (such as trade secrets and confidential financial, commercial, scientific and technical information, as identified in section 20(1) of the Act) (section 9(1)(c)). Section 27 of the Act sets out a formal process that institutions must follow for notifying third parties that they intend to disclose records that may contain third-party information.

The Act requires institutions to notify the Commissioner of all extensions they take beyond 30 days.

Delays by the numbers

The original intent of the Act was that government institutions respond to access requests within 30 days of receipt, unless this period is extended in specific and limited cases (section 9).

A key indicator of timeliness is the proportion of requests responded to within 30 days. The Treasury Board of Canada Secretariat collects this information annually and publishes it on an aggregated basis.^{Footnote 1a} In 2002–2003, the proportion of requests responded to within 30 days was at 69 percent. This number has steadily declined over the years, to 61 percent in 2013–2014, with a low of 55 percent in 2011–2012.

This indicator can be broken down to get a clearer picture of the spectrum of performance across the access to information system.

For instance, the Commissioner looks at statistics with and without the figures for Citizenship and Immigration Canada (CIC). CIC receives by far the most requests in the entire federal access system—49 percent of the total in 2013–2014. Nearly all of the requests it receives are from consultants and lawyers representing non-citizens who deal with CIC on matters related to immigration and citizenship. Typically, these requests involve a small number of pages and CIC is generally able to complete these requests within 30 days. The performance of CIC thus significantly impacts on government-wide statistics. When looking at statistics without CIC, the proportion of requests responded to within 30 days was 61 percent in 2002–2003 and 55 percent in 2013–2014.

The Commissioner also looks at institutions’ specific statistics. These numbers show important variations across the government. For example, in 2013–2014, about 77 percent of requests made to the Canada Border Service Agency were responded to within 30 days. In contrast, only 29 percent of requests were responded to within that timeline at the Royal Canadian Mounted Police.

Another interesting indicator of timeliness is the average response time for requests.^{Footnote 2a} On average, a request made to the Canadian Security Intelligence Service in 2013–2014 was responded to within 26 days. The average response time at Transport Canada was 179 days that same year.

Extensions
Since 2002–2003, the frequency in the use of time extensions has been relatively stable, representing between 25 to 30 percent of completed requests. The length of extensions, however, has increased significantly across all categories. In 2002–2003, 55 percent of extensions were for more than 30 days. This number stood at 79 percent in 2013–2014. 

In 2002–2003, 40 percent of extensions claimed for consultations under section 9(1)(b) were for more than 30 days. This number jumped to 88 percent in 2013–2014.^{Footnote 3a} Within this category, 97 percent of extensions to consult on Cabinet confidences were for more than 30 days in 2013–2014.^{Footnote 4a}

Deemed refusals
The Treasury Board of Canada Secretariat began collecting statistics in 2011–2012 on the proportion of requests closed past their statutory or extended timelines. In the last three years, at least 1 in 10 requests was late (15% in 2011–2012; 11% in 2012–2013; 14% in 2013–2014). The primary reason cited for not responding within deadlines was workload.

Even where a request has not been responded to within the time limits allowed in the Act, the requirement to respond persists. However, in 2012–2013, only 40 percent of these requests were responded to within 30 days beyond the time limits allowed in the Act. In 10 percent of these cases, the institutions took an additional year to respond.

Complaints
The Office of the Information Commissioner of Canada has dedicated a significant amount of time and resources to resolving complaints about timeliness. Annual reports contain multiple examples of investigations related to long extensions and deemed refusals. In the last 10 years alone, a large proportion of all complaints registered annually related to time extensions and deemed refusals. The Commissioner’s experience is that the vast majority of these complaints are well founded (in 2011–2012: 48 percent for extensions and 74 percent for deemed refusals; in 2012–2013: 68 percent for extensions and 73 percent for deemed refusals; in 2013–2014: 63 percent for extensions and 75 percent for deemed refusals).

Examples of the culture of delay

Since 1983, thousands of complaints about delays have been investigated. As a result, persistent and recurring practices by institutions have been identified that delay responding to access requests. 

Statutory deadlines

• Putting requests “on hold” to seek clarification from requesters and then restarting timelines upon receiving clarification. This occurs even when clarification is not necessary or does not change the request substantially.
• Putting requests “on hold” during holidays.
• Employees within institutions failing to meet the timelines established by the ATIP Office to provide relevant records.
• Fee assessments which allow the institution to place a request on hold until payment.

Extensions

• Claiming an extension after the initial response time has expired.
• Claiming an extension to retrieve records from regional or international offices.
• Taking standard length extensions without considering the volume and complexity of the information at issue.
• Using extensions to compensate for
  • lack of resources
  • high workloads
  • extended staff absences or unavailability of key officials
  • poor information management practices within the institution
  • protracted approval processes
• Not initiating a consultation at the earliest opportunity in the processing of a request.
• Not responding to a consultation request in a timely manner.
• Not following up on a consultation request in a timely manner
• Taking extensions of longer than 60 days for consultations with third parties or taking two extensions (one under section 9(1)(b) to consult informally and another under section 9(1)(c)).

Over the last three years, based on government-wide statistics, the majority of extensions were for 60 or fewer days:

In 2011–2012: 65%
In 2012–2013: 65%
In 2013–2014: 54%

On March 3, 2015, the Federal Court of Appeal allowed an appeal brought by the Commissioner from a decision in which the Federal Court had dismissed an Application for judicial review that the Commissioner had initiated, with the requester’s consent, under section 42 of the Act.

The case relates to a request that was made to National Defence on February 3, 2011 for records relating to the sale of certain military assets. National Defence advised the requester that it would extend the time limit to respond to the request by 1,110 days.

As a result of a complaint from the requester, the Commissioner conducted an investigation and determined that the requirements of section 9 for the time extension had not been met.

The Commissioner applied for a declaration from the Federal Court that National Defence had failed to give access to the records requested under the Act within the time limits set out in the Act and was, therefore, deemed to have refused to give access to the requested information.

About one month before the hearing of the application, National Defence gave the requester access to the requested records. Despite this disclosure, the Federal Court agreed to hear the matter, but ultimately dismissed the Commissioner's application.

The Information Commissioner appealed the decision. The Federal Court of Appeal granted leave to intervene to the Information and Privacy Commissioner of Ontario.

The first issue on appeal was whether the Federal Court had jurisdiction under section 42 of the Act to review a decision by an institution under section 9(1) to extend the limit set out in section 7 to respond to a request under the Act.

The Federal Court of Appeal held that the Federal Court’s interpretation had been incorrect and that the correct interpretation was the one offered by the Commissioner. An institution may avail itself of the power to extend the time to respond to an access request, as provided by section 9 of the Act, but only when the required conditions are met. The Court added: “One such condition is that the period taken be reasonable when regard is had to the circumstances set out in paragraph 9(1)(a) and/or 9(1)(b). If this condition is not satisfied, the time is not validly extended with the result that the 30-day time limit imposed by operation of section 7 remains the applicable limit.” The Court concluded that “a deemed refusal arises whenever the initial 30-day time limit has expired without access being given, in circumstances where no legally valid extension has been taken.”

The second issue on appeal was whether the time extension asserted by National Defence had been valid. The Court found that it had not been. National Defence’s treatment of the extension fell short of establishing that a serious effort was made to assess the duration of the extension. It further noted that National Defence’s treatment of the matter had been “perfunctory” and showed that National Defence had “acted as though it was accountable to no one but itself in asserting its extension.” The Federal Court of Appeal required that an effort be made to demonstrate the link between the justification advanced and the length of the extension taken. Government institutions “must make a serious effort to assess the required duration, and that the estimated calculation be sufficiently rigorous, logic[al] and supportable to pass muster under reasonableness review.”

See Information Commissioner of Canada v Minister of National Defence, et al., 2015 FCA 56, rev’g 2014 FC 205.

An example that demonstrates the issue of multiple and simultaneous requests was reported in the Commissioner’s 2009–2010 Annual Report.^{Footnote 1b}

A requester submitted hundreds of access requests to the Canadian Broadcasting Corporation (CBC) in the first few months that it became subject to the Act. He then made hundreds of complaints to the Commissioner when the CBC failed to respond on time.

The Commissioner’s investigations revealed that the CBC was unable to process the requests within the 30 days allowed under the Act, but could not take an extension.

Consultations under section 9(1)(b)

The frequency of use of extensions for consultations has not significantly changed in the last three years (based on the total number of extensions):

In 2011–2012: 37%
In 2012–2013: 36%
In 2013–2014: 40%

A large proportion, however, are for more than 60 days. That proportion has increased in the last three years:

In 2011–2012: 52%
In 2012–2013: 61%
In 2013–2014: 68%

Shift in Guidance

In 1993, Treasury Board of Canada Secretariat took the view that section 9(1)(b) could not be used for extensions in relation to internal consultations.

In 1999, Treasury Board of Canada Secretariat issued Implementation Report No. 67 which stated that an extension under 9(1)(b) could occasionally be justified when the need to seek legal advice arises during the processing of a request.

More recently, Treasury Board of Canada Secretariat has revised its guidance. It now takes the position that section 9(1)(b) may be used for any internal consultation, with the exception of the approval process.

Treasury Board of Canada Secretariat, Access to Information Manual, “Extension” (1993), s. 2-4-14; Treasury Board of Canada Secretariat, Implementation Report No. 67, (1999); and Treasury Board of Canada Secretariat, Access to Information Manual. “Reasons for extension”, s. 7.3.1..

Completion time for consultations received from other government institutions

2011–2012: 74% within 30 days; 89% within 60 days
2012–2013: 65% within 30 days;
82% within 60 days
2013–2014: 67% within 30 days;
87% within 60 days

In 2010–2011, the Commissioner investigated a complaint against Indian and Northern Affairs Canada (INAC), as it was formerly known, which had gone into deemed refusal on 13 requests made by the same requester.

During the Commissioner’s investigation, it became clear that the delays arose from the failure of the Canada Post Corporation (CPC), the consulted institution, to respond to INAC’s requests for consultation in a timely manner. As a result, INAC refused to provide commitment dates to the Commissioner for responding to the requests without first knowing the dates by which CPC would respond to the consultations. It was also discovered that while INAC had extended the time limit under the Act for most of the requests in order to consult with CPC, it undertook consultations for some of the relevant records only after the extended time period had expired.

Consultations under section 9(1)(c)

The frequency of use of extensions for consultations under section 9(1)(c) has not significantly changed in the last three years (based on the total number of extensions):

In 2011–2012: 14% In 2012–2013: 14% In 2013–2014: 12%

A large proportion of consultations under section 9(1)(c) are responded to within 60 days. This number is increasing.

2011–2012: 58% 2012–2013: 69% 2013–2014: 70%

In 2011–2012, a requester complained to the Commissioner about a 210-day extension taken by Industry Canada to respond to a request, and that Industry Canada had missed that deadline. The Commissioner’s investigation focused on Industry Canada’s practices associated with consultations, and its overall lack of a timely response.

During the investigation, the Commissioner learned that Industry Canada had failed to complete consultations with third parties within the time frame set out in the Act (sections 27 and 28). In addition, officials gave extensions to third parties to provide a response to the notice and entered into negotiations with them about the terms of the proposed disclosure. Neither of these ways of proceeding is consistent with the obligations set out in section 28. In this investigation the Commissioner found that Industry Canada gave third parties extensions when they did not hear back from them with their representations, which resulted in further delays in responding to the requester.

The availability of an extension for publishing information may help reduce complaints like one received in 2008–2009 against Human Resources and Skills Development Canada (as it was formerly known), which, after withholding information in response to an access request because it was soon to be published, failed to follow up with the requester once the information was published. The requester’s complaint and the Commissioner’s subsequent investigation could have been avoided if the institution had been required to take an extension and, therefore, keep the request active.