Advisory Notice

Time Extensions Pursuant to Paragraph 9(1)(a) of the Access to Information Act

July 22, 2016

This notice provides guidance to government institutions subject to the Access to Information Act (the Act), and to requesters, of the Office of the Information Commissioner’s (OIC) interpretation and application of paragraph 9(1)(a) of the Act. This notice reflects the Federal Court of Appeal’s decision in Information Commissioner of Canada v. Minister of National Defence, 2015 FCA 56.

The notice is intended to assist officials in institutions and at the OIC in preparing and reviewing documentation in support of rationales to substantiate extensions during the course of investigations. Documentation of relevant factors that justify an extension expedites investigations of time extension complaints.

The inappropriate use of time extensions is a leading cause of delays in responding to access to information requests.

Time Extensions pursuant to paragraph 9(1)(a)

Paragraph 9(1)(a) of the Act permits institutions to extend the 30-day time limit to respond to a request for information if it 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. The OIC has identified several issues concerning the interpretation of the terms “large number of records”, “search through a large number of records” and “unreasonable interference with operations of the government institution.”

Determining what constitutes a large number of records

The OIC considers 1,000 pages or more as a benchmark for what constitutes a large number of records. In cases involving fewer pages, it has required institutions to provide rationales to substantiate their positions regarding volume. While the number of pages is an important indicator of volume, the OIC may assess extensions on a broader, case-by-case basis with contextual factors playing a role in the assessment.

In Implementation Report Number 67 (September 17, 1999), the Treasury Board Secretariat indicated that the average number of records an institution routinely processes within 30 days could be employed as a scale for determining what constitutes a large number of records. Although it might be considered in particular circumstances, this factor would have minimal weight in an investigation if the OIC is of the view the institution is performing at a sub-standard level.

Determining what constitutes a search through a large number of records

In the past, guidance regarding searching through a large number of records has tended to be based primarily on page counts of paper documents. In the current environment, while electronic searches may quickly generate records on a topic, they must still be examined to assess their particular relevance to a request.

Factors the OIC considers during extension investigations to assess what constitutes a search through a large number of records include, but are not limited to:

  • Commonality and currency of the formats of the records [Example: Record production requires use of unusual software or antiquated hardware];
  • Degree of ease in reviewing and assessing the relevancy of the records [Example: Large computer printout where the review of 1 or 2 pages results in a uniform approach being applied to all pages];
  • Existence of previous requests for the same or similar records;
  • Number of records management systems to be searched;
  • Number of officials involved in the search;
  • Accessibility of the records [Example: Records held in multiple locations].

Determining what is unreasonable interference with the operations of the institution

The second part of the criteria under paragraph 9(1)(a) is whether meeting the 30 day timeline would unreasonably interfere with the operations of the institution. Factors the OIC considers during extension investigations include, but are not limited to:

  • Nature and extent of the interference;
  • Degree to which the subject matter expertise of the Office of Primary Interest (OPI) will be diverted to the detriment of the OPI’s core functions; and
  • Extent to which institutional resources required to respond to the request is adversely affecting the processing of other requests.

The OIC has not viewed a temporary lack of resources resulting from holidays, extended personal leave, power outages, special events, etc. as valid arguments to justify extensions. Similarly, an institution’s chronic lack of resources or inadequate records management system is not accepted as a legitimate justification for a time extension.

However, lack of adequate resources in extraordinary circumstances may be taken into account on a case-by-case basis. In these circumstances, institutions may be asked to demonstrate they are making an effort to resolve their resource problems.

Length of the extension must be reasonable having regard to the circumstances

If the institution demonstrates that the pre-conditions described above are met, the institution must further demonstrate that the length of the extension claimed is reasonable having regard to the circumstances.

In determining whether an extension is reasonable, the Federal Court of Appeal stated in Information Commissioner of Canada v. Minister of National Defence that institutions “must make a serious effort to assess the required duration” of an extension taken under paragraph 9(1)(a). The estimated calculation must be “sufficiently rigorous, logic[al] and supportable to pass muster under reasonableness review,” and “an effort must be made to demonstrate the link between the justification advanced and the length of the extension taken.”

Further, as per the Court, a perfunctory estimate of the duration of the extension will not be sufficient to meet the test for reasonableness. Institutions must consider all relevant factors and establish a rational linkage between the requirements of paragraph 9(1)(a) and the length of the extension claimed.

Legal validity of the extension

In Information Commissioner of Canada v. Minister of National Defence, 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 Court explained that if conditions described in paragraph 9(1)(a) are “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.”

As a result of this decision, if the OIC finds that an extension is not valid, the request will be considered in deemed refusal pursuant to subsection 10(3) of the Act.

Notice of Right to Complain

Subsection 9(1) requires institutions to notify requesters, as part of the notice of extension, that the person has a right to make a complaint to the Commissioner about the extension. Complaints must be made within sixty days after the day on which the person receives the notice. 

Investigations

When the OIC has received a complaint about an extension, the institution will be notified of the complaint.

In cases where the investigation determined that the institution has responded to the request, the OIC will not pursue the investigation further and the complaint will be considered resolved.

Otherwise, institutions are responsible for demonstrating that all criteria under paragraph 9(1)(a) are met and that time extensions are substantiated. Detailed documentation assists the OIC in determining the validity of extensions during investigations. The factors listed in this notice are by no means exhaustive. They are intended to provide information on how the OIC may approach extension investigations.

Reasonable extension

The OIC will find the extension to be valid if:

  1. the institution has notified the requester about the extension within the required 30 days;
  2. the institution has satisfied all the criteria enumerated in paragraph 9(1)(a); and
  3. the length of the extension is reasonable having regard to the circumstances.

In such cases, a report of finding will be issued. The disposition will be not well-founded and the investigation will be closed.

Not a reasonable extension

The OIC will find the extension to be invalid if:

  1. the institution has not notified the requester within the required 30 days; or
  2. the institution has not satisfied all the criteria enumerated in paragraph 9(1)(a); and/or
  3. the length is not reasonable having regard to the circumstances.

In such cases, the OIC will obtain a disclosure date from the institution. The OIC will then assess the reasonableness of this disclosure date, in consultation with the requester.

Reasonable disclosure date provided by an institution:

  • The investigation will be put on hold until the disclosure date is met. Once the disclosure date has been met and the final response has been provided to the requester, a report of finding will be issued. The disposition will be well-founded, resolved and the investigation will be closed.
  • The investigation will be put on hold until the disclosure date is met. If the final response has not been provided to the requester by the disclosure date, a letter under section 37 of the Act will be sent to the head of the institution providing ten (10) days to issue the final response. If the response is sent within ten (10) days, a report of finding will be issued. The disposition will be well-founded, resolved and the investigation will be closed.

If the final response is not sent within ten (10) days, a report of finding will be issued, the disposition will be well-founded, not resolved and the investigation will be closed.

Judicial review by the Federal Court may be pursued either by the complainant or the OIC with the complainant’s consent.

No reasonable disclosure date provided by an institution:

  • The OIC will issue a letter to the head of the institution under section 37 of the Act formally recommending a disclosure date. The institution will then have ten (10) days to inform the OIC whether the Commissioner’s recommendation is accepted. If the institution accepts the date, the requester has the same options as described under “Reasonable disclosure date provided by an institution”, above.
  • If a reasonable disclosure date is not accepted by an institution after a formal recommendation from the OIC under section 37 of the Act, a report of finding will be issued, the disposition will be well-founded, not resolved and the investigation will be closed.

Judicial review by the Federal Court may be pursued either by the complainant or the OIC with the complainant’s consent.

Notification of extensions

Pursuant to subsection 9(2) of the Act, where an institution extends the time limit for more than 30 days under subsection 9(1), notice of the extension shall be given to the Information Commissioner at the same time notice is given to the requester.

The notification of extension to the OIC should include the following information:

  • Date of access request;
  • Date completed request is received by the institution;
  • Institution’s file number;
  • Text of the request;
  • Date extension notification sent to requester;
  • Reason under section 9 for extension (specify paragraph);
  • Length of extension; and
  • Notice of the right to complain to the OIC included.