Time Extensions under Paragraph 9(1)(c) of the Access to Information Act

Advisory notice

The purpose of this advisory notice is to inform government institutions of the approach the Office of the Information Commissioner (OIC) takes when evaluating whether time extensions claimed under paragraph 9(1)(c) of the Access to Information Act (the “Act”) are valid.

This notice is also intended to help officials respond to our inquiries during investigations into complaints about deemed refusals when institutions have taken such extensions. A mutual understanding of the criteria we review and the documentation we will require will expedite the investigation process and, thereby, help protect parties’ rights.

Background

Paragraph 9(1)(c) permits institutions to extend the 30-day time period in which to respond to access to information requests in order to consult third parties about the application of the exemption set out in section 20.

Section 3 defines a third party as, “any person, group of persons or organization other than the person who made the request or a government institution.” For a list of government institutions please see Schedule 2 of the Act.

The exemption set out in section 20(1) covers information such as trade secrets, confidential financial, commercial, scientific or technical information, and other information that could prejudice contractual negotiations or otherwise prejudice a third party’s competitive position. Subsections 20(5) and (6) also contain several exceptions to the otherwise mandatory exemption.

Sections 27 and 28 set out a legislated process to follow to consult with third parties, giving time frames for each step.

OIC investigations have brought to light a number of practices that we consider to be inconsistent with the proper use of paragraph 9(1)(c) extensions, with the process for carrying out third-party consultations and with institutions’ obligation to provide timely access to records under the duty to assist (subsection 4(2.1)). Examples of investigations of complaints that gave rise to these concerns can be found in recent annual reports. [ http://www.oic-ci.gc.ca/eng/annual-reports-rapports-annuel_2011-2012_6.aspx ] & [ http://www.oic-ci.gc.ca/eng/annual-reports-rapports-annuel_2011-2012_7.aspx ]

Properly applying paragraph 9(1)(c)

During investigations into the use of paragraph 9(1)(c) extensions, we focus on whether the institution has complied with the requirements of that provision, as well as with the process and timelines set out in sections 27 and 28, and with its duty-to-assist obligations.

When determining whether a time extension under subsection 9(1) is valid, we first look at whether the institution took the extension within the first 30 days after receiving the request.

Beyond that, we examine whether the institution met two criteria to determine whether a paragraph 9(1)(c) extension is valid:

  • The extension must be for a “reasonable period of time.”
  • The institution must notify, under subsection 27(1), the third party of the request and of the institution’s intention to release information that relates to the third party (as described in section 20).

“Reasonable period of time”

To determine whether an extension is for a “reasonable period of time,” we carry out an objective assessment of whether the length is appropriate in the circumstances. Our assessment is guided by the clear and mandatory timelines for third-party consultations set out in section 28, as follows:

  • A third party must provide to the institution any representations it wishes to make about the request or the information in question within 20 days after a section 27 notice is given.
  • Within 30 days after the notice is given, the institution must decide whether to disclose the information (regardless of whether the third party has responded) and give written notice of that decision to the third party.

When the institution decides to release the requested information, despite any representations from the third party, it must then wait a further 20 days to allow the third party to file an application for judicial review with the Federal Court. If the third party does not file such an application, the institution must, under subsection 28(4), disclose the information at that time. If the third party applies to the Federal Court, disclosure will not be made unless a Court orders release.

Based on this process and the associated legislative timelines, the OIC is of the view that consultations with a third party, once initiated by a subsection 27(1) notice, should take approximately 60 calendar days [1999-2000 annual report http://www.oic-ci.gc.ca/eng/rp-pr-ar-ra-archive.aspx], including mailing time. This position guides our assessment during an investigation of any extension an institution takes under paragraph 9(1)(c).

Notification to a third party

Under subsection 27(1), institutions must make every reasonable effort to notify third parties of a request for information related to them when the institution intends to release that information and the head of the institution has reason to believe that it might contain information identified in sections 20(1)(a),(b) or (b.1) or where the head of the institution could reasonably foresee that disclosure might lead to the results described in paragraph 20(1)(c) or (d), such as the third party’s material financial loss or gain. This notice must be given in writing within 30 days after receiving the request.

For the OIC to find an extension under paragraph 9(1)(c) to be valid, an institution must show that it has carried out the third-party notification process properly. In particular, officials will need to show that they have given notice to the third party within the required 30 days or provide documentation to prove they attempted to do so.

Institution notifies third party of request and intention to release information Institution takes paragraph 9(1)(c) extension Deadline for third party to send representation to institution Institution decides whether to release information Deadline for third party to file application for judicial review If no application is filed, institution releases information Mailing time
First 30 days 20 days after notice is given 10 days later 20 days later 10 days
  60-day time extension under paragraph 9(1)(c)
 

However, we acknowledge that under subsection 27(4), an institution may take longer to notify a third party when it has also claimed a time extension under paragraph 9(1)(a) or (b) (or both) for the request. In this situation, the institution must send the notice to the third party before the longest of those extensions expires but must still take the extension within the first 30 days following receipt of the request. Otherwise, we will find the extension invalid.

We also expect that institutions will, where possible, notify all third parties simultaneously in order to comply with their obligation under the duty to assist to provide requesters with timely access to records. In addition, institutions may not grant extensions to third parties to respond to subsection 27(1) notices, negotiate with third parties or make multiple decisions about whether to release the information.

Should we determine that an institution has failed to comply with the requirements of paragraph 9(1)(c) and the timelines set out in sections 27 and 28, we may choose to formalize our investigation. This may entail seeking written representations from the institution under subsection 35(2) and making recommendations to the head of the institution under section 37.

Other matters

Notifying requesters of extensions under paragraph 9(1)(c)

Subsection 9(1) does not require an institution to inform the requester of the number of days it has taken for an extension under paragraph 9(1)(c), as it does with extensions under paragraphs 9(1)(a) and 9(1)(b).

Notice of the extension to the Information Commissioner

Under subsection 9(2), institutions must notify the Information Commissioner of any extension of more than 30 days. It is a best practice to notify us of all paragraph 9(1)(c) extensions, given that they could be for as long as 60 days. Institutions should submit this notice at the same time as they notify the requester. See our advisory notices [9(1)(a) and 9(1)(b)] on notifying us about extensions.

Proper extension to take for third-party consultations

The OIC does not accept the use of an extension under paragraph 9(1)(b) [ http://www.oic-ci.gc.ca/eng/inv-inv_not-inv-sum-som-inv-not_sum_2008-2009_2.aspx ] to consult third parties when commercial information [page 19 of the 1999-2000 annual report http://www.oic-ci.gc.ca/eng/rp-pr-ar-ra-archive.aspx] as described in subsection 20(1), is involved. Instead, institutions must use paragraph 9(1)(c), which, due to the process set out in sections 27 and 28, balances the rights of requesters and third parties.

Right to complain

Subsection 9(1) requires institutions to notify requesters, as part of the notice of extension, that they have the right to complain to the Commissioner about the extension. Requesters must submit complaints within 60 days after the day they receive the notice. Further direction on this is available on the OIC website.