The issue of delays has been persistently raised by information commissioners since 1983.
Inger Hansen (1983–1990)
Delaying access to information in effect destroys the purpose of the Act.
1984–1985 Annual Report
John Grace (1990–1998)
Most surprising — and dismaying — about the whole delay problem is that the Act already contains one of the most liberal extension-of-time provisions found in any freedom of information statute.
1993–1994 Annual Report
John Reid (1998–2006)
It is my fervent hope that the day will come soon when I will be able to drop the problem of delay as my number one priority.
Remarks at the 1999 Canadian Access and Privacy Association conference
It appears that the problem of delay remains a significant concern.
2005–2006 Annual Report
Robert Marleau (2007–2009)
The most significant and wide-reaching finding attests to the fact that the 30-day period intended by Parliament to be the norm in responding to information requests is the exception.
2007–2008 Special Report: Systemic Issues Affecting Access to Information in Canada
Suzanne Legault (2009–present)
Despite warnings and recommendations, delays continue to be the Achilles’ heel of the access to information system and have yet to be appropriately addressed by the government.
2008–2009 Special Report: Out of Time
Chapter 3: Timeliness
Timely access to information is a pillar of any access to information regime. It ensures that requesters receive responses while the information is still relevant and that they can hold governments to account for their decisions at appropriate times. For this reason, many in the field of access to information use the expression “access delayed is access denied.” This expression holds even more meaning in the 21st century, where, in the face of the 24-hour news cycle, social media and instantaneous communications, information’s value is to a large degree measured by how current it is.
Parliament recognized the importance of timely responses to requests when it provided that a failure to abide by the legislative timelines is deemed to be a refusal. The importance of timeliness was recognized again in 2006, when Parliament amended the Act to include a legislative duty to assist which, among other things, requires that institutions provide timely access to information subject to the requirements of the Act.
Timeliness is a frequent subject of complaint by requesters. Investigations of these complaints have revealed a culture of delay across the access to information system.
Successive commissioners have tracked institutions’ compliance with timelines and reported to Parliament on institutions that consistently failed to meet timelines. The Commissioner has also made a number of recommendations to the Treasury Board of Canada Secretariat to help ease problems associated with timeliness. Although these interventions have led to some improvements in timeliness, these improvements are often short term and institution-specific, and have not resulted in lasting system-wide improvements.
A recent Federal Court of Appeal decision with respect to the time limits set out in the Act is expected to have a positive impact on timeliness and Canadians’ access rights (see box for a more detailed description of this decision). This decision establishes that an unreasonable extension is not legally valid and amounts to a deemed refusal, giving a right of review to the Federal Court (prior to this decision, it was unclear whether an extension was reviewable by the Court). It also sets standards to institutions in terms of how they must justify the use and length of extensions.
While this decision will serve to improve timeliness under the current legislative framework, the Act remains inconsistent with international standards, which include both specific and limited timelines, as well as timely and effective oversight. Modernizing the current framework will ultimately ensure that Canadians obtain the information they are entitled to within a timeframe that meets their expectations in the context of 21st century information realities.
How to address the culture of delay
Most laws require institutions to respond to requests in approximately 30 working days, which is consistent with the Act. Model laws and access laws from other jurisdictions, however, frequently limit the circumstances in which institutions may take extensions. They also limit the length of extensions. Indeed, in all but one of the provinces, as well as in Australia, the U.S., and in model laws, the length of time for an extension is limited to a precise number of days, ranging from 10 to 40. While many of these jurisdictions allow for longer extensions, institutions must ask for prior approval from the commissioner.
None of these safeguards are found in the Act.
Time limits in the Act
Initial response time
The Act requires institutions to respond to an access request within 30 calendar days of receipt. Responses can contain the records requested, a notification that the institution does not hold any responsive records or a notification that the institution is taking an extension to allow more time to respond completely and accurately to the request (section 7).
The Act allows extensions for a reasonable period of time, having regard to the circumstances. There are three circumstances in which an institution may take an extension:
- When the request 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 (section 9(1)(a)).
- When the institution does not expect to be able to complete necessary consultations on the records associated with the request within the original 30 days (section 9(1)(b)).
- To consult third parties when they intend to disclose a record that contains (or may contain) third-party information (such as trade secrets and confidential financial, commercial, scientific and technical information, as identified in section 20(1) of the Act) (section 9(1)(c)). Section 27 of the Act sets out a formal process that institutions must follow for notifying third parties that they intend to disclose records that may contain third-party information.
The Act requires institutions to notify the Commissioner of all extensions they take beyond 30 days.
Delays by the numbers
The original intent of the Act was that government institutions respond to access requests within 30 days of receipt, unless this period is extended in specific and limited cases (section 9).
A key indicator of timeliness is the proportion of requests responded to within 30 days. The Treasury Board of Canada Secretariat collects this information annually and publishes it on an aggregated basis. In 2002–2003, the proportion of requests responded to within 30 days was at 69 percent. This number has steadily declined over the years, to 61 percent in 2013–2014, with a low of 55 percent in 2011–2012.
This indicator can be broken down to get a clearer picture of the spectrum of performance across the access to information system.
For instance, the Commissioner looks at statistics with and without the figures for Citizenship and Immigration Canada (CIC). CIC receives by far the most requests in the entire federal access system—49 percent of the total in 2013–2014. Nearly all of the requests it receives are from consultants and lawyers representing non-citizens who deal with CIC on matters related to immigration and citizenship. Typically, these requests involve a small number of pages and CIC is generally able to complete these requests within 30 days. The performance of CIC thus significantly impacts on government-wide statistics. When looking at statistics without CIC, the proportion of requests responded to within 30 days was 61 percent in 2002–2003 and 55 percent in 2013–2014.
The Commissioner also looks at institutions’ specific statistics. These numbers show important variations across the government. For example, in 2013–2014, about 77 percent of requests made to the Canada Border Service Agency were responded to within 30 days. In contrast, only 29 percent of requests were responded to within that timeline at the Royal Canadian Mounted Police.
Another interesting indicator of timeliness is the average response time for requests. On average, a request made to the Canadian Security Intelligence Service in 2013–2014 was responded to within 26 days. The average response time at Transport Canada was 179 days that same year.
Since 2002–2003, the frequency in the use of time extensions has been relatively stable, representing between 25 to 30 percent of completed requests. The length of extensions, however, has increased significantly across all categories. In 2002–2003, 55 percent of extensions were for more than 30 days. This number stood at 79 percent in 2013–2014.
In 2002–2003, 40 percent of extensions claimed for consultations under section 9(1)(b) were for more than 30 days. This number jumped to 88 percent in 2013–2014. Within this category, 97 percent of extensions to consult on Cabinet confidences were for more than 30 days in 2013–2014.
The Treasury Board of Canada Secretariat began collecting statistics in 2011–2012 on the proportion of requests closed past their statutory or extended timelines. In the last three years, at least 1 in 10 requests was late (15% in 2011–2012; 11% in 2012–2013; 14% in 2013–2014). The primary reason cited for not responding within deadlines was workload.
Even where a request has not been responded to within the time limits allowed in the Act, the requirement to respond persists. However, in 2012–2013, only 40 percent of these requests were responded to within 30 days beyond the time limits allowed in the Act. In 10 percent of these cases, the institutions took an additional year to respond.
The Office of the Information Commissioner of Canada has dedicated a significant amount of time and resources to resolving complaints about timeliness. Annual reports contain multiple examples of investigations related to long extensions and deemed refusals. In the last 10 years alone, a large proportion of all complaints registered annually related to time extensions and deemed refusals. The Commissioner’s experience is that the vast majority of these complaints are well founded (in 2011–2012: 48 percent for extensions and 74 percent for deemed refusals; in 2012–2013: 68 percent for extensions and 73 percent for deemed refusals; in 2013–2014: 63 percent for extensions and 75 percent for deemed refusals).
Examples of the culture of delay
Since 1983, thousands of complaints about delays have been investigated. As a result, persistent and recurring practices by institutions have been identified that delay responding to access requests.
- Putting requests “on hold” to seek clarification from requesters and then restarting timelines upon receiving clarification. This occurs even when clarification is not necessary or does not change the request substantially.
- Putting requests “on hold” during holidays.
- Employees within institutions failing to meet the timelines established by the ATIP Office to provide relevant records.
- Fee assessments which allow the institution to place a request on hold until payment.
- Claiming an extension after the initial response time has expired.
- Claiming an extension to retrieve records from regional or international offices.
- Taking standard length extensions without considering the volume and complexity of the information at issue.
- Using extensions to compensate for
- lack of resources
- high workloads
- extended staff absences or unavailability of key officials
- poor information management practices within the institution
- protracted approval processes
- Not initiating a consultation at the earliest opportunity in the processing of a request.
- Not responding to a consultation request in a timely manner.
- Not following up on a consultation request in a timely manner
- Taking extensions of longer than 60 days for consultations with third parties or taking two extensions (one under section 9(1)(b) to consult informally and another under section 9(1)(c)).
Over the last three years, based on government-wide statistics, the majority of extensions were for 60 or fewer days:
In 2011–2012: 65%
In 2012–2013: 65%
In 2013–2014: 54%
Limit extensions to the extent strictly necessary, with legislated timelines
Although institutions must ensure any extension they take meets the criteria set out in section 9 and, according to the Access to Information Manual, be for as short a time as possible, it is the Commissioner’s experience that this is not always the case. In a special report on time limits, the Commissioner found that institutions do not always meet these requirements and that unjustified use of time extensions is a leading and well-recognized cause of delays.
According to Treasury Board of Canada Secretariat statistics, the majority of extensions taken by institutions are for less than 60 days. Accordingly, the Commissioner recommends that extensions be limited to the extent strictly necessary, to a maximum of 60 days. All extensions should be reasonable or justified in the circumstances and calculated with sufficient rigour, logic and support to meet a reasonableness review, as was enunciated by the Federal Court of Appeal. An effort will be required to demonstrate the link between the justification advanced and the length of the extension taken.
On March 3, 2015, the Federal Court of Appeal allowed an appeal brought by the Commissioner from a decision 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 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 to respond to the request by 1,110 days.
As a result of a complaint from the requester, the Commissioner conducted an investigation and determined that the requirements of section 9 for the time extension had not been met.
The Commissioner applied for a declaration from the Federal Court that 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. Despite this disclosure, the Federal Court agreed to hear the matter, but ultimately dismissed the Commissioner's application.
The Information Commissioner appealed the decision. 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 an institution under section 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 and that the correct interpretation was the one offered by the Commissioner. An 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.” 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 second issue on appeal was whether the time extension asserted by National Defence had been valid. The Court found that it had not been. National Defence’s treatment of the extension fell short of establishing that a serious effort was made to assess the duration of the extension. 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.” The Federal Court of Appeal required that an effort be made to demonstrate the link between the justification advanced and the length of the extension taken. 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.”
See Information Commissioner of Canada v Minister of National Defence, et al., 2015 FCA 56, rev’g 2014 FC 205.
The Information Commissioner recommends that extensions be limited to the extent strictly necessary, to a maximum of 60 days, and calculated with sufficient rigour, logic and support to meet a reasonableness review.
Permission to extend
In some limited circumstances, an extension of 60 days may not be sufficient. The Commissioner recommends aligning the Act with provincial and model laws by allowing institutions to take longer extensions with the prior permission of the Commissioner. To obtain this permission, institutions will be required to show the Commissioner that the proposed extension is reasonable or justified in the circumstances and that a serious effort has been made to assess the required duration of the extension. As above, the extension must be calculated with sufficient rigour, logic and support to meet a reasonableness review.
Seeking permission will allow for effective oversight by the Commissioner where lengthy extensions are requested.
The Information Commissioner recommends that extensions longer than 60 days be available with the permission of the Information Commissioner where reasonable or justified in the circumstances and where the requested extension is calculated with sufficient rigour, logic and support to meet a reasonableness review.
Allow extensions for multiple and simultaneous requests
An example that demonstrates the issue of multiple and simultaneous requests was reported in the Commissioner’s 2009–2010 Annual Report.
A requester submitted hundreds of access requests to the Canadian Broadcasting Corporation (CBC) in the first few months that it became subject to the Act. He then made hundreds of complaints to the Commissioner when the CBC failed to respond on time.
The Commissioner’s investigations revealed that the CBC was unable to process the requests within the 30 days allowed under the Act, but could not take an extension.
Section 9(1)(a) allows an extension when the request is for a large number of records or involves 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.
However, there are factors other than the number of records or the nature of the search required that can interfere with the core functions of an institution when processing a request. This is seen where a requester makes multiple requests to the same institution within a short period of time.
Consultations under section 9(1)(b)
The frequency of use of extensions for consultations has not significantly changed in the last three years (based on the total number of extensions):
In 2011–2012: 37%
In 2012–2013: 36%
In 2013–2014: 40%
A large proportion, however, are for more than 60 days. That proportion has increased in the last three years:
In 2011–2012: 52%
In 2012–2013: 61%
In 2013–2014: 68%
The Commissioner recommends that institutions should be allowed to take an extension when an institution receives multiple requests from one requester within a period of 30 days and the processing of these requests would unreasonably interfere with the operations of the institution. This extension should not be available at the institution’s discretion. Institutions should be required to seek the permission of the Commissioner in these circumstances. This will allow her to assess whether the extension is warranted and does not unduly impede the requester’s right of access. Such a provision would be in line with several access laws in Canada.
The Information Commissioner recommends allowing institutions, with the Information Commissioner’s permission, to take an extension when they receive multiple requests from one requester within a period of 30 days, and when processing these requests would unreasonably interfere with the operations of the institution.
Shift in Guidance
In 1993, Treasury Board of Canada Secretariat took the view that section 9(1)(b) could not be used for extensions in relation to internal consultations.
In 1999, Treasury Board of Canada Secretariat issued Implementation Report No. 67 which stated that an extension under 9(1)(b) could occasionally be justified when the need to seek legal advice arises during the processing of a request.
More recently, Treasury Board of Canada Secretariat has revised its guidance. It now takes the position that section 9(1)(b) may be used for any internal consultation, with the exception of the approval process.
Treasury Board of Canada Secretariat, Access to Information Manual, “Extension” (1993), s. 2-4-14; Treasury Board of Canada Secretariat, Implementation Report No. 67, (1999); and Treasury Board of Canada Secretariat, Access to Information Manual. “Reasons for extension”, s. 7.3.1..
Consultations with other institutions and affected parties
Section 9(1)(b) allows extensions when consultations are necessary to comply with a request that cannot reasonably be completed within the original 30 days. This language is broad and has led to different interpretations.
For instance, it is not clear whether consultations within an institution fall within the scope of section 9(1)(b).
Over the past 20 years there has been a shift in the guidance provided to institutions from Treasury Board of Canada Secretariat.
A number of provincial laws, as well as the Organization of American States’ model law, specifically provide that an extension to consult is only available where the consultation is external.
In light of this, the Commissioner recommends that extensions taken under section 9(1)(b) should be limited to external consultations with other government institutions or affected parties.
The amendment should make clear that extensions under this section may only be taken, where necessary, to consult affected parties outside of the institution who do not have consultation rights under section 9(1)(c).
The Information Commissioner recommends the Act make explicit that extensions for consultations as per section 9(1)(b) may only be taken to consult other government institutions or affected parties, other than third parties who already have consultation rights under section 9(1)(c), and only where it is necessary to process the request.
Completion time for consultations received from other government institutions
2011–2012: 74% within 30 days; 89% within 60 days
2012–2013: 65% within 30 days;
82% within 60 days
2013–2014: 67% within 30 days;
87% within 60 days
Failing to respond to a consultation request
Section 9(1)(b) does not require consulted parties to respond to requests for consultations by a particular deadline. Institutions have identified this as a factor causing significant delay.
Statistics do not support this assertion. It appears that consulted institutions have largely been responding to requests for consultations in a timely fashion.
In 2010–2011, the Commissioner investigated a complaint against Indian and Northern Affairs Canada (INAC), as it was formerly known, which had gone into deemed refusal on 13 requests made by the same requester.
During the Commissioner’s investigation, it became clear that the delays arose from the failure of the Canada Post Corporation (CPC), the consulted institution, to respond to INAC’s requests for consultation in a timely manner. As a result, INAC refused to provide commitment dates to the Commissioner for responding to the requests without first knowing the dates by which CPC would respond to the consultations. It was also discovered that while INAC had extended the time limit under the Act for most of the requests in order to consult with CPC, it undertook consultations for some of the relevant records only after the extended time period had expired.
The Commissioner has, however, in the course of her investigations found instances where there are lengthy delays in responding to requests because the response to a consultation is not returned in a timely manner.
To insert some discipline into the consultation process, the Commissioner recommends that institutions be required to respond to requests without the input of the consulted party should the consulted party not respond to the consultation within the notified time period. This is consistent with the understanding that the institution who received the access request bears the responsibility to respond to the request and cannot avoid this responsibility due to the inaction of another institution.
The Information Commissioner recommends that, in cases where a consulted party fails to respond to a consultation request, the consulting institution must respond to the request within the time limits in the Act.
Consultations with third parties
Institutions may take extensions under section 9(1)(c) for consultations with third parties when the institution intends to disclose a record that contains (or may contain) confidential third-party information, usually of a commercial or financial nature.
Sections 27 and 28 of the Act establish a clear, time-limited legislative framework for notifying third parties about the potential release of their information. Moreover, section 44 gives third parties the right to apply for a judicial review of an institution’s decision if it decides to disclose their information.
The following table sets out the time limits provided in the Act.
Time limits for notification and representations under section 27
The institution notifies the third party of the request and its intention to release the third party’s information. The institution takes an extension under section 9(1)(c)
The deadline for the third party to send representations to the institution
The institution decides whether to release information
The deadline for the third party to file an application for judicial review. If no application is filed, the institution releases information.
First 30 days
20 days after notice is given
10 days later
20 days later
60-day time extension under 9(1)(c)
Consultations under section 9(1)(c)
The frequency of use of extensions for consultations under section 9(1)(c) has not significantly changed in the last three years (based on the total number of extensions):
In 2011–2012: 14% In 2012–2013: 14% In 2013–2014: 12%
A large proportion of consultations under section 9(1)(c) are responded to within 60 days. This number is increasing.
2011–2012: 58% 2012–2013: 69% 2013–2014: 70%
Based on these legislated timelines, the Commissioner is of the view that extensions to consult third-parties should never take more than 60 days and has issued an advisory notice to this effect.
Despite this clear legislative framework, the Commissioner has investigated complaints where institutions have not respected these legislated time limits and have granted extensions to third parties which are not allowed for by the Act. This results in delays in responding to requests.
Even when a third party fails to respond to a notification, the institution must still wait for 20 days before it can release the information. During this time, the third party may apply to the Court for a judicial review of the institution’s decision to disclose the information, which delays responding to requests even further.
In 2011–2012, a requester complained to the Commissioner about a 210-day extension taken by Industry Canada to respond to a request, and that Industry Canada had missed that deadline. The Commissioner’s investigation focused on Industry Canada’s practices associated with consultations, and its overall lack of a timely response.
During the investigation, the Commissioner learned that Industry Canada had failed to complete consultations with third parties within the time frame set out in the Act (sections 27 and 28). In addition, officials gave extensions to third parties to provide a response to the notice and entered into negotiations with them about the terms of the proposed disclosure. Neither of these ways of proceeding is consistent with the obligations set out in section 28. In this investigation the Commissioner found that Industry Canada gave third parties extensions when they did not hear back from them with their representations, which resulted in further delays in responding to the requester.
Thus, there is little incentive for third parties to respond to a notification in a timely manner or at all.
To instill discipline in the notification process and place the burden on the party resisting disclosure to provide timely representations to the institution, the Commissioner recommends that a third party be deemed to have consented to releasing its information if it does not respond to the notification within the legislative timelines. This will reduce delay by ensuring prompt and complete responses by third parties or disclosure in the absence of a response. Finally, it resolves questions relating to disclosure that arise where a third party has ceased to exist.
The Information Commissioner recommends that a third party is deemed to consent to disclosing its information when it fails to respond within appropriate timelines to a notice that an institution intends to disclose its information.
The availability of an extension for publishing information may help reduce complaints like one received in 2008–2009 against Human Resources and Skills Development Canada (as it was formerly known), which, after withholding information in response to an access request because it was soon to be published, failed to follow up with the requester once the information was published. The requester’s complaint and the Commissioner’s subsequent investigation could have been avoided if the institution had been required to take an extension and, therefore, keep the request active.
Allow extensions when information is to be published
Currently, institutions may withhold information when it will be published within 90 days or within such a time as may be necessary for printing or translation (section 26). When institutions apply this exemption and respond to the requester, they then consider the request complete, although many continue to monitor the publication of the information and send a follow-up response to the requester when the information is published.
While there may be reasons to delay the disclosure of information that is soon to be published, an exemption is not necessary to achieve this purpose.
Instead, the Commissioner recommends allowing institutions to take an extension if the information is soon to be made available to the public. This extension would be limited to 60 days, with longer extensions available with the approval of the Commissioner (as per recommendations 3.1 and 3.2). In combination with the original 30 days, this extension would result in 90 days in total to respond to the request. In the event the information is not published when the extension expires, the institution would have to disclose the unpublished information to the requester.
Allowing an extension under these circumstances would:
- give requesters more certainty as to when the information would be available because institutions would have to set a date upon which the extension would expire; and
- ensure that the request would remain active until the information is disclosed.
The availability of this extension under the Act makes the exemption for information to be published (section 26) redundant.
The Information Commissioner recommends allowing an extension when the requested information is to be made available to the public, rather than claiming an exemption.
The Information Commissioner recommends that if an extension is taken because the information is to be made available to the public, the institution should be required to disclose the information if it is not published by the time the extension expires.
The Information Commissioner recommends repealing the exemption for information to be published (section 26).
If an extension is being taken, section 9(1) of the Act requires institutions to give written notice of the extension to the requester within 30 days of receipt of the request.
In order to insert more discipline around the use of extensions and to ensure that requesters are given adequate information about the extension and their rights, the Commissioner recommends that extension notices should contain the following:
- the section being relied on for the extension and the reasons why that section is applicable;
- the length of the extension (regardless of what section the extension was taken under);
- the date upon which the institution will be in deemed refusal if it fails to respond;
- a statement that the requester has the right to file a complaint to the Commissioner about the extension within 60 days following receipt of the extension notice; and
- a statement that the requester has the right to file a complaint with the Commissioner within 60 days of the date of deemed refusal if the institution does not respond to the request by the date of the expiry of the extension.
The Information Commissioner recommends that extension notices should contain the following information:
- the section being relied on for the extension and the reasons why that section is applicable;
- the length of the extension (regardless of what section the extension was taken under);
- the date upon which the institution will be in deemed refusal if it fails to respond;
- a statement that the requester has the right to file a complaint to the Information Commissioner about the extension within 60 days following receipt of the extension notice; and
- a statement that the requester has the right to file a complaint to the Information Commissioner within 60 days of the date of deemed refusal if the institution does not respond to the request by the date of the expiry of the extension.