Factors that prevented TFC from responding more quickly to access requests.
1. Legitimate application of the
Access to Information Act
Subsection 9(1) of the Act sets out circumstances under which the initial period of 30 days may be extended. These are limited to the following:
- if the request is for a large number of records or requires a search through a large number of records and meeting the original time limit, under either of these circumstances, would unreasonably interfere with the operations of the institution(paragraph 9(1)(a) of the Act). Such an extension was granted in the case of two requests;
- if consultation is necessary and it cannot be completed within 30 days. Consultation in this context refers to consultation of the type undertaken with other government institutions or other governments (paragraph 9(1)(b) of the Act). Such an extension was granted in the case of 37 requests;
- notice is given to a third party pursuant to subsection 27(1) (paragraph 9(1)(c) of the Act). Such an extension was granted in the case of one request.
In 2008–2009 access requests generally concerned international television co-productions. Where access requests involve information obtained in confidence from the government of foreign states or their institutions, application of subsection 13(1) does not allow the federal institution any discretion. This is a mandatory class test exemption. Consequently, when the notices of extension were given, TFC had engaged in consultations with institutions of foreign states.
In 37 cases consultations were engaged with partners of foreign, provincial and/or federal states.
Consultations with institutions of foreign states are of course long and arduous undertakings, the outcome of which may not always be successful.
In one case TFC had to consult with a third party.
In two other cases on account of the large number of records requested, TFC had to extend the initial period because meeting the time limit would have unreasonably interfered with the operations of the institution.
| As the Information Commissioner is aware, extension of the time limit must also take into account the amount of work required to respond to the request. Where the time limit is extended under paragraphs 9(1)(a) or (b), the notice must specify the length of the extension (although it is not necessary to do so in the case of extensions under paragraph 9(1)(c) of the Act). TFC met the requirements of the Act at all times. |
Pursuant to subsection 9(1) of the Act, the notice of extension must be given to the person who made the request within the initial 30-day period. TFC continues to meet that requirement.
TFC adheres to the following procedures prior to giving notice of extension:
1. TFC reviews the request as soon as possible after it is received. TFC then determines whether it is necessary to provide the requester with reasonable notice of extension within 30 days of receipt of the request.
2. TFC undertakes to process the records as expeditiously as possible.
3. TFC acts prudently and diligently, taking into account the conditions set by the Information Commissioner, whereby processing of files is to be finalized within the time limit stipulated in the notice of extension.
| As the Information Commissioner is aware, federal institutions must respond to access requests within 30 days of receipt or seek an extension of the time limit. Institutions may request extensions only under the special circumstances described in section 9 of the Act. Furthermore, extensions must be for a reasonable amount of time. There are no other constraints in terms of utilization of extensions or the length thereof. |
2. Structural context of ATIP within TFC
TFC is a small agency with fewer than 200 employees. Normally, a singleemployee performs the duties of Access to Information and Privacy Analyst and Paralegal concurrently.
In actuality, this employee (equivalent to 0.5 FTE for access to information duties) sees to application of the Access to Information Act and the Privacy Act on a part-time basis. This employee’s workload is phenomenal.
3.There was a sudden influx of access requests.
In 2008–2009 TFC had to manage a sudden and temporary influx of access requests from a group of commercial corporations. The situation has been dealt with for the most part.
4. Access requests were for “old” documents.
The group of commercial corporations in question submitted access requests for records in TFC Archives. Accessing such records was not always easy.
5. Access requests concerned a large number of records.
Despite TFC’s efforts to assist the requesters, the access requests were difficult to manage because they were formulated in very broad terms. The requests also involved a large number of records.
6. Access requests concerned sensitive information belonging to third parties.
Generally speaking, TFC processes access requests concerning financial, commercial, scientific and technical information provided to federal institutions by third parties, which is given in confidence and is always treated as such by the latter. These types of files require special attention. Improper disclosure could have serious consequences for the third parties and federal institutions concerned.
Also, generally speaking TFC processes access requests for information the disclosure of which would likely result in significant financial losses or gains for third parties, or harm their competitiveness.
Under bilateral and multilateral international co-production agreements, audiovisual works produced by different producers residing in countries signatory to these agreements can be duly classified and recognized as such by each of the countries concerned, and can receive benefits and assistance from each country.
Co-production combines resources for the purpose of creating a work that would otherwise be difficult to achieve with a single producer.
All information concerning international co-productions is provided by third parties to TFC in confidence. TFC is committed to maintaining such confidentiality.
Information provided to TFC pursuant to the establishment of classification criteria to be met for deciding whether a particular status (certification) may be granted can result in fiscal benefits.
It should be noted that under co-production agreements, two or more parties agree to:
collaborate and share property, rights and/or services enabling the successful co-production of an audiovisual work regardless of its nature;
assign to each other ownership of the rights to the work resulting from their collaboration; and
proceed jointly with its use and share in the profits (or losses) of the co-production in question in the established proportions.
The fiscal implications of these agreements are different each time, and can vary from country to country, resulting in the need to maintain strict confidentiality of information provided to TFC.
A major drawback with international co-productions is that the contractual relationships between the parties are governed by different legal systems that are not harmonized with each other. Consequently, inappropriate and improper disclosure can have unpredictable and adverse consequences.
7. Access requests concerned information obtained in confidence from governments of foreign states or their institutions.
Generally speaking, in 2008–2009 nearly 50% of the packages processed contained information obtained in confidence from governments of foreign states or their institutions. Application of subsection 13(1) of the Access to Information Act does not allow federal institutions any discretion. This is a mandatory class test exemption.
These kinds of files require special attention because improper disclosure can have serious consequences for the third parties (foreign states) and the federal institutions concerned. Under such circumstances, consultations with the third parties are required.
8. Management of complaints systematically filed by a group of requesters took up a great deal of resources.
In 2008–2009 TFC had to manage a sudden and temporary influx of access requests submitted by a group of commercial corporations. This group filed complaints in 90% of all cases in which access requests had been made, without giving any reasons or explanations. These systematic complaints significantly reduced TFC’s institutional ability to respond more quickly to access requests that were submitted.
Complaints management is particularly arduous for small federal agencies that do not have specialized computer facilities such as ATIP Flow, ATIP Image, etc.
The Information Commissioner cannot deny that complaints management is a priority issue, takes up a considerable amount of time and monopolizes a substantial amount of resources. This factor significantly delayed processing of access requests.