Advisory Notice

Time Extensions Pursuant to Paragraph 9(1)(b) 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)(b) 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.

In the OIC’s annual report, the use, duration and volume of time extensions for consultations taken under paragraph 9(1)(b), and the delays to respond to access requests that may result because of these extensions, was identified as an area of particular concern (see Annual Report 2014-2015, “Delays stemming from consultations on records related to access requests”).

Time extensions pursuant to paragraph 9(1)(b)Footnote 1

Paragraph 9(1)(b) of the Act provides that an institution may extend the 30-day time limit to respond to a request for information for a reasonable period of time, having regard to the circumstances, if consultations are necessary to comply with the request that cannot reasonably be completed within the original time limit. The OIC has identified several issues concerning consultations, especially with regard to when consultations are necessary to comply with the request and the duration and volume of consultations.

Determining what consultations are necessary to comply with the request

Factors the OIC may consider when investigating whether a consultation was necessary include but are not limited to:

  • Whether the records being consulted on are generated by the consulted institution(s);
  • Whether the consulted institution accepted the consultation request;
  • The nature of the consultation [Example: if the consultation is for Cabinet records].

Determining what is not practically possible

The second criteria under paragraph 9(1)(b) is that it is not reasonable, or practically possible, to expect that the necessary consultations can be completed within the initial thirty days provided under section 7 of the Act.

Among the factors that the OIC may consider when assessing whether it is not reasonable, or practically possible, to expect that the necessary consultations can be completed within the original 30 days, are:

  • The number of pages, including similar pages, and the type of documents that need to be reviewed by the consulted party;
  • The nature of the consultation [Example: if the consultation is for Cabinet records];
  • Existence of previous consultation requests on the same or similar records;
  • Whether the length of the extension has been consensually determined with the consulted institution;
  • Who the consultation is with [Example: if the consultation is with an international government and the consultation is complicated by protocols of formal diplomatic channels of correspondence, language issues or government instability];
  • Whether consent is being sought for disclosure [Example: under sections 13 or 19];

The lists of factors above are by no means exhaustive. They are intended to provide guidance.

A note on internal consultations

The OIC does not accept the use of paragraph 9(1)(b) for internal consultations. The use of paragraph 9(1)(b) should be limited to external consultations with other institutions or affected parties.Footnote 2

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)(b). 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.

Although the average times for consultations may be a factor which should be considered, it is not the only consideration. Institutions must consider all relevant factors and establish a rational linkage between the requirements of paragraph 9(1)(b) and the length of the extension claimed.

Standard consultation response times

It has come to the OIC’s attention that some institutions have adopted standard consultation response times when consulted by another institution, based on number of pages. Consulting institutions are then basing the length of extensions claimed on these standard response times.

The practice of setting standard response times based on number of pages, and subsequently claiming extensions based on these standard times, is inconsistent with the statutory requirements of the Act. It is also inconsistent with the Federal Court of Appeal in Information Commissioner of Canada v. Minister of National Defence. The OIC does not accept extension lengths based on standard response times.

Multiple consultations

In some instances, an institution must consult with multiple institutions. In order to provide timely access, these consultations should be undertaken concurrently, not consecutively.

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)(b) 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)(b) 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:

  • the institution has notified the requester about the extension within the required 30 days;
  • the institution has satisfied all the criteria enumerated in paragraph 9(1)(b); and
  • 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:

  • the institution has not notified the requester within the required 30 days; or
  • the institution has not satisfied all the criteria enumerated in paragraph 9(1)(b), and/or
  • 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.

Footnotes

Footnote 1

Note that Paragraph 9(1)(b) should not be used to consult third parties when commercial information as described in subsection 20(1) of the Act is involved. Instead, institutions must use paragraph 9(1)(c).

Return to footnote 1 referrer

Footnote 2

Note that the OIC is aware that the TBS Access to Information Manual provides that paragraph 9(1)(b) may be used for consultations within a government institution, with the exception of the approval process. While the OIC agrees that paragraph 9(1)(b) should not be used for the approval process, we disagree that paragraph 9(1)(b) is available for consultations within a government institution.

Return to first footnote 2 referrer

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