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Federal Court of Appeal decision in Information Commissioner of Canada v Minister of National Defence (2015 FCA 56)

Update: On March 3, 2015, the Federal Court of Appeal allowed the appeal brought by the Information Commissioner of Canada.

On March 26, 2014, the Information Commissioner filed an appeal from a Federal Court judgment rendered on March 3, 2014, 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 Access to Information 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 by 1,110 days.

As a result of a complaint from the requester indicating that the time limit was unreasonable, the Commissioner conducted an investigation. During the investigation, National Defence informed the Commissioner that 230 days of the time extension were being claimed under paragraph 9(1)(a) to deal with the large number of records involved and that the other 880 days were being claimed under paragraph 9(1)(b) to complete necessary consultations. National Defence originally claimed to have estimated the time taken under paragraph 9(1)(b) (880 days) by simply dividing the number of pages requested by the number of pages involved in the average Department of Foreign Affairs and International Trade (DFAIT) consultation, and applying the resulting quotient (8) as a multiplier against the average DFAIT consultation time (110 days). The Commissioner’s investigation determined that the requirements of section 9 for the time extension had not been met. The Commissioner found that National Defence had breached its duty to make every effort to process the request in a timely manner. She found that National Defence’s asserted extension had been invalid. She recommended that National Defence make a commitment to respond to the request by February 28, 2013, at the latest. On November 6, 2012, National Defence informed the Commissioner that it could not so commit.

With the requester’s consent, the Commissioner applied for a declaration from the Federal Court that the Minister of 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.

The Federal Court agreed to hear the matter even though the dispute had become moot. The Federal Court dismissed the Commissioner's application, holding that so long as a government institution complied with the time extension it had taken, there could be no deemed refusal pursuant to subsection 10(3) regardless of the reasonableness of the extension, and therefore no right of judicial review arose during the period of the time extension, as in the current matter (FCA reasons, para. 56).

The Information Commissioner appealed the decision. Prior to the appeal being heard, 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 a government institution under subsection 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. It remarked that a reading of subsection 10(3) which would prevent judicial review of a time extension would fall short of what Parliament intended. The “time limits set out in the Act” are part of the statutory scheme and there are two such limits: the 30-day time limit that arises by operation of section 7 following a request for access and the extended time limit that arises as a result of a notice of extension issued pursuant to section 9. When breached, either of these time limits give rise to a deemed refusal pursuant to subsection 10(3).

The Federal Court of Appeal explained that:

[60] For the purpose of applying subsection 10(3), construing subsection 9(1) as allowing for whatever period of time the institution may wish to take reads out of the Act the requirement that the extension be “reasonable … having regard to the circumstances” and the criteria set out in paragraphs 9(1)(a) and 9(1)(b). Moreover, the extended “time limit” that the Federal Court judge accepts as falling within the “time limits set out in [the] Act” (Reasons at para. 66) is not a time limit at all. If a government institution is free to choose the deadline of its choice, without regard to the statutory conditions set out in subsection 9(1), there are no limits on the deadline it may choose.

Further, the Federal Court of Appeal recognized that “timely access is a constituent part of the right of access (see subsection 4(2.1) of the Act)” (para. 63).

The Federal Court of Appeal held that the correct interpretation was the construction offered by the Information Commissioner (para. 71). A government 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” (para. 72). 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” (para. 73).

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. It remarked that the type of formula that had been used to calculate 880 days defied logic and fell short of demonstrating a genuine attempt to assess the required duration (para. 80). 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” – National Defence’s treatment of the extension fell short of establishing that a serious effort was made to assess the duration of the extension (para. 81).

On this point, the Federal Court of Appeal offered guidance for future cases, in stating that “...it is not enough for a government institution to simply assert the existence of a statutory justification for an extension and claim an extension of its choice. An effort must be made to demonstrate the link between the justification advanced and the length of the extension taken. In the case of paragraph 9(1)(a), this will mean not only demonstrating that a large number of documents are involved, but that the work required to provide access within any materially lesser period of time than the one asserted would interfere with operations. The same type of rational linkage must be made pursuant to paragraph 9(1)(b) with respect to necessary consultations” (para. 76). It added that 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.”

The Federal Court of Appeal declared that the Department of National Defence had entered into a state of deemed refusal pursuant to subsection 10(3) of the Access to Information Act upon the expiration of the 30-day time limit set out in section 7 of the Act.

Link to decision: Information Commissioner of Canada v Minister of National Defence