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The review process for 2007-2008 specifically focused on institutions’ use of time extensions to gather evidence on the impact it has on delays. Federal institutions must complete access to information requests within 30 days of receipt or take a time extension.4 This can only be done if specific conditions described in section 9 of the Act apply (see box below for more information). The length of these extensions is not constrained by any statutory limitation. The only norm is for the extension to be for a “reasonable period of time.”
Paragraph 9(1)(a) allows an institution to extend the deadline for responding to an information request that involves a large volume of records (or a search through a large volume of records) such that meeting the 30-day limit would impose an “undue burden” on the institution’s operations.
Paragraph 9(1)(b) allows an institution to extend the deadline if consultations that are required in order to respond to the request cannot be completed within 30 days.
Paragraph 9(1)(c) allows an institution to extend the deadline in cases where notice of the request and of the federal institution’s intent to disclose information must be given to a third party pursuant to section 27.
A requester unhappy with delays due to time extensions can complain to the OIC but, beyond that, checks and balances on the use and length of time extensions are limited and the compliance model in the Act is weak. Federal institutions are only required by law to notify the Information Commissioner of any extension beyond 30 days (as per paragraph 9(2) of the Act). Further, there is no sanction provided in the Act for failure to provide this notice. As observed during the review of notices received during 2007–2008, institutions did not consistently comply with this requirement.
There is also limited guidance on the use of time extensions and their duration. The TBS Manual indicates that “extensions should be geared to the amount of work required in processing a request and be for as short a time as possible.5” Jurisprudence from the Federal Court indicates that the institutions must state cogent, genuine reasons for the extension, and for its length.
In terms of the Act, completing an information request means to give written notice to the requester as to whether or not the requested record will be released in whole or in part, and, if access is to be given, to provide the record in whole or in part.5
Treasury Board Policy Suite/Requests/Extensions, http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=13779§ion=text#cha146
Canada (Information Commissioner) v. Canada (Minister of External Affairs)  3 F.C. 514, at 526.
The OIC looked at historical trends in the timeliness of responses to information requests, bearing in mind the Act’s intention is that institutions will normally respond to requests within 30 days. We started with the premise that extensions should only be required for a small number of requests and be as short as possible under the circumstances. Although we cannot draw firm conclusions from the data we gathered as to whether extensions were justified in all cases, our analysis shows a trend toward greater use of time extensions and for longer periods of time. This trend is not explained by overall growth in the number of information requests that occurred during the same period. We would have hoped to see, at worst, that the growth in the use of extensions was no greater than growth in the number of information requests. In fact, we mostly saw the opposite.
The OIC must be cautious about drawing firm conclusions on the basis of a three-year set of data drawn from a small set of institutions. There are also some irregularities and inconsistencies in the data available on extensions. Our conversations with individual institutions produced several plausible explanations for the growing significance of extensions over the past several years. Nonetheless, we have gathered sufficient evidence to question whether the degree to which extensions are being used can be fully justified under the Act.
For instance, some institutions have made significant gains in improving their deemed refusal scores, while simultaneously making greater use of time extensions. This may of course be perfectly legitimate. Indeed, some cases of deemed refusals in previous years might have been due to institutions not taking extensions in circumstances in which it would have been appropriate to do so. Having said that, we cannot help but wonder whether the coincidence of improved deemed refusal scores and increased use of extensions is evidence of institutions focusing more on their report card scores than on fulfilling the fundamental objectives of the Act. The use of long extensions as an insurance policy against having requests fall into deemed refusal status (by being delayed beyond the statutory timelines in the Act) is a tactic we learned about in our interviews.
The OIC is also concerned that institutions are using extensions as a way to cope with chronic understaffing of access to information units and with deficiencies in records management. As noted earlier, extensions should be the exception rather than the norm for a unit that is adequately resourced and has an efficient information management framework. When one or both of these elements are not present, and this is often the case, federal institutions may be tempted to use extensions to help them manage their workload while at the same time keeping within statutory timelines.
More discipline is required on the use of time extensions. The OIC will closely monitor the notices institutions submit to us, comparing them to the number of extensions they report to the Treasury Board Secretariat as having taken during the year. We will also undertake a systemic investigation of the use of extensions across federal institutions.
There is also a need for better and stronger data on extensions in order to assess whether their use is consistent with the objectives of the Act.
That the Treasury Board Secretariat clarify the methodology for reporting on time extensions and, starting in 2010–2011, break down the reporting requirements of extensions into the following categories:
number of requests extended pursuant to section 9;
for each reason for the extension (searching, consultations, third party), the length of the extension:
less than 30 days;
above 250, by units of 50 days.
for each reason for the extension (searching, consultations, third party), the average actual time it took to receive a response.