Canadian Security Intelligence Service (Re), 2021 OIC 5

Date: 2021-03-05
OIC file number: 5820-02519
Institution file number: 117-2020-223

Summary

The complainant alleged that the time extension taken under paragraph 9(1)(b) (consultations) by the Canadian Security Intelligence Service (CSIS) to respond to a request under the Access to Information Act was unreasonable. CSIS showed that consultations with two other government institutions were necessary and could not reasonably be completed within 30 days. CSIS determined that an extension of 240 days would be required, considering the high classification level and sensitivity of the records, the need for on-site review of the records, and limited access to the workplace. The OIC determined that CSIS made a serious effort to determine the length of the extension based on the realities of the pandemic situation. The OIC concluded that the time extension was reasonable given the circumstances and that CSIS met the three requirements to claim the time extension. The complaint is not well founded.

Complaint

[1]      The complainant alleged that the time extension taken by the Canadian Security Intelligence Service (CSIS) to respond to a request under the Access to Information Act is unreasonable.

Investigation

[2]      On September 2, 2020, CSIS received a request for records relating to specific operational reviews concerning co-operation between CSIS and the Royal Canadian Mounted Police (RCMP).

[3]      Based on the date of receipt of the request, the statutory 30-day deadline for a timely response was October 2, 2020.

[4]      On October 2, 2020, CSIS notified the complainant that, pursuant to paragraph 9(1)(b), it would require an additional 240 days to complete the processing of the request. If valid, this time extension would extend the due date for a response to May 31, 2021.

[5]      The Office of the Information Commissioner (OIC) received the complaint on December 4, 2020. 

Paragraph 9(1)(b): time extension for consultations

[6]      Paragraph 9(1)(b) allows institutions to extend the 30 days they have to respond to an access request in the following situations:

• when they need to consult with other institutions or bodies about the requested records; and
• when those consultations cannot reasonably be completed within 30 days.

[7]      The time extension must be for a reasonable period, given the circumstances.

[8]      To claim the time extension, institutions must notify the requester of the following no more than 30 days after receiving the access request:

• that they are taking an extension under paragraph 9(1)(b);
• its duration; and
• that the requester has the right to complain to the Information Commissioner about the extension.

Were the consultations necessary?

[9]      In its representations, CSIS advised it retrieved approximately 350 pages of responsive records that require consultations with two separate government institutions, specifically, the RCMP and the Public Prosecution Service Canada (PPSC).

[10]    Given the subject matter of the request and the interests of all three institutions in the responsive records, the OIC is satisfied that these consultations were necessary.

Could the consultations reasonably be completed within 30 days?

[11]    CSIS claimed that it could not reasonably complete the consultations within 30 days. This assessment was based on a number of considerations:

• the high classification level of the responsive records requires on-site review by the consulted institutions and can only be done by a limited number of individuals;
• ATIP analysts of both consulted institutions confirmed that they were working in the office on a limited basis with limited access to classified material; and
• CSIS ATIP was also working in the office on a limited basis.

[12]    The OIC is satisfied that the consultations could not reasonably by completed within 30 days.

Is the time extension for a reasonable period?

[13]    CSIS stated that, at the time of its decision to claim a 240-day time extension, it endeavoured to accommodate “the ever changing working conditions in the required ATIP shops that [it is] encountering due to the COVID-19 pandemic, including various lockdown situations, school closures and stay-at-home orders.”

[14]    Further, CSIS stated that, because the records contain information that is closely woven between the three departments, a partial release without their recommendations would result in an almost wholly exempt response. Since a partial release was not feasible, CSIS chose a time extension length that acknowledges the uncertainty of present and future working conditions for all three institutions, in “an attempt to produce a release that is as complete as possible while at the same time not breaking a legislated deadline.”

[15]    Since April of last year, the Information Commissioner has consistently reiterated that the right of access, a quasi-constitutional right, cannot be suspended because of the COVID-19 pandemic. In the absence of a legislated authority to cease access to information functions during a pandemic, government leaders must take all necessary measures to ensure they are mitigating the impacts of the pandemic on the right of access.

[16]    CSIS did not cease its operations. It continued to process access requests. In the case of this request, CSIS determined that, in the midst of the evolving pandemic situation, a longer time frame than might be reasonable under normal circumstances would be required. CSIS conducted a serious analysis of the operational realities of each of the consulted institutions, as well as its own, in determining the length of the claimed time extension.

[17]    Accordingly, the OIC is satisfied the length of time taken was for a reasonable period, given the circumstances.

Was the time extension validly claimed?

[18]    The OIC is satisfied that CSIS met the three requirements to claim a time extension, by sending a notification containing the requisite information to the requester within 30 days of receiving the request.

[19]    The extended due date to respond to the request, therefore, remains May 31, 2021.

Results

[20]    The complaint is not well founded. 

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.