Time Extensions Pursuant to Paragraph 9(1)(a)of the Access to Information Act
This purpose of this notice is to advise government institutions subject to the Access to Information Act (the Act) of factors the Office of the Information Commissioner (OIC) generally takes into account when interpreting paragraph 9(1)(a) of the Act during the investigation of a complaint. The provision permits institutions to extend the time limits for responding to requests "for a reasonable period of time" when they involve a search for or through a large number of records and would unreasonably interfere with operations.
The notice is also intended to assist officials both in institutions and the OIC in preparing and reviewing rationales to substantiate extensions and the documentation associated with them during the course of investigations. Ultimately, use of appropriate criteria and improved documentation will support and expedite any investigations undertaken in response to requester- or Commissioner-initiated complaints.
During the conduct of its investigations, as well as in its annual reports to Parliament and institutional report cards, the OIC has identified the inappropriate use of time extensions as a leading cause of delays in responding to access to information requests. The inconsistent application of paragraph 9(1)(a), which provides for an extension when a request involves a search for or through a large number of records and would unreasonably interfere with operations, is the result of varying interpretations of what constitutes a "large number" and often of attempts by institutions to manage their workloads.
In Report Card 2008-2009: Out of Time, the Commissioner made a commitment to clarify the OIC's interpretation of paragraph 9(1)(a). This notice provides guidance on the OIC's interpretation and application of the provision.
Time Extensions Pursuant to Paragraph 9(1)(a)
Paragraph 9(1)(a) of the Access to Information Act provides that institutions may extend the 30-day time limit to respond to a request for information if it 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. When conducting its investigations, the OIC has identified several issues concerning the interpretation of the terms "large number of records", "search through a large number of records" and "unreasonable interference with operations of the government institution".
Determining what constitutes a large number of records
The OIC has been considering 1,000 pages of records or more as a benchmark for what constitutes a large number. In cases involving fewer pages, it has required institutions to provide rationales to substantiate their positions regarding volume. While the number of pages continues to be an important indicator of volume, the OIC may assess extensions on a broader, case-by-case basis with contextual factors playing a role in the assessment.
In Implementation Report Number 67 (September 17, 1999), the Treasury Board Secretariat indicated that the average number of records an institution routinely processes within 30 days could be employed as a scale for determining what constitutes a large number of records. Although it might be considered in particular circumstances, this factor would have minimal weight in an investigation if the OIC is of the view the institution is performing at a sub-standard level.
Determining what constitutes a search through a large number of records
In the past, guidance regarding searching through a large number of records has tended to be based primarily on page counts of paper documents. In the current environment, while electronic searches may quickly generate records on a topic, they must still be examined manually to assess their particular relevance to a request.
Factors the OIC may consider during extension investigations to assess what constitutes a search through a large number of records include but are not limited to:
- Commonality and currency of the formats of the records [Example: Record production requires use of unusual software or antiquated hardware];
- Degree of ease in reviewing and assessing the relevancy of the records [Example: Large computer printout where the review of 1 or 2 pages results in a uniform approach being applied to all pages];
- Existence of previous requests for the same or similar records;
- Number of records management systems to be searched;
- Number of officials involved in the search;
- Accessibility of the records [Example: Records held in multiple locations];
In the past, it is important to note the OIC has not accepted an institution's chronic lack of resources or inadequate records management system as a legitimate justification for a time extension.
Determining what is unreasonable interference with the operations of the institution
The second part of the criteria under paragraph 9(1)(a) is whether meeting the 30 day timeline would unreasonably interfere with operations of the institution. Factors the OIC may consider during extension investigations include but are not limited to:
- Nature and extent of the interference;
- Degree to which the subject matter expertise of the Office of Primary Interest (OPI) will be diverted to the detriment of the OPI's core functions; and
- Extent to which institutional resources required to respond to the request is adversely affecting the processing of other requests.
The OIC has not viewed a temporary lack of resources resulting from holidays, extended personal leave, power outages, special events, etc. as valid arguments in investigations of extensions. However, lack of adequate resources in extraordinary circumstances may be taken into account on a case-by-case basis. In these circumstances, institutions may be asked to demonstrate they are making an effort to resolve their resource problems.
Notice of Right to Complain
Subsection 9(1) requires institutions to notify requesters, as part of the notice of extension, that the person has a right to make a complaint to the Commissioner about the extension. Complaints must be made within sixty days after the day on which the person receives the notice. Direction on the timeframe for filing a complaint is available at the following address: http://www.oic-ci.gc.ca/eng/inv-inv_pd-dp_timeframe-complaint-atia-temps-plaintes-atia.aspx
The lists of factors above are by no means exhaustive. They are intended to provide information on how the OIC may approach extension investigations. Ultimately, institutions are responsible for demonstrating that all parts of the tests are met and that time extensions are substantiated. Detailed documentation assists the OIC in determining the validity of extensions during investigations.
Subsection 9(1) of the Act prescribes that institutions may extend the time limit for a "reasonable" period of time. In situations where the OIC does not consider the period of time reasonable, it may request institutions to provide detailed work plans to support the rationales. If necessary, it may also collaborate with them to establish earlier response dates based on the work to be completed.
If an institution has satisfied all the criteria enumerated in paragraph 9(1)(a) and has notified the person who made the request about the extension within the required 30 days following receipt of the request, the OIC will, absent other adverse facts, find the extension to be valid.
Notification of Extensions Pursuant to Subsection 9(2)of the Access to Information Act
The purpose of this notice is to propose to government institutions subject to the Access to Information Act (the Act) use of a template to notify the Information Commissioner of extensions of the time limit for responding to access requests. Pursuant to subsection 9(2) of the Act, where the head of a government institution extends the time limit for more than 30 days under subsection 1, the head shall give notice of the extension to the Information Commissioner at the same time notice is given to the requester.
During the course of its investigations, as well as in its annual reports to Parliament and institutional report cards, the Office of the Information Commissioner (OIC) has identified cases where institutions have failed to comply with the notification requirement prescribed by subsection 9(2). To address this issue and to promote a reduction in the number of complaints regarding extensions, the Commissioner made a commitment in Report Card 2008-2009: Out of Time to develop and implement an electronic template to assist institutions in the notification process. In addition, she committed to assigning an official in the OIC to review the notices and prepare reports on the length of extensions on a system-wide basis.
Currently, a common notification practice is for institutions to copy to the Information Commissioner the letter of extension sent to the requester. This practice has the disadvantage of unnecessarily disclosing personal information about the requester. While paper-based notification remains an option, some institutions have been requesting that an electronic means of transmitting the information to the OIC be developed.
The electronic template the OIC is proposing is designed to assist institutions in timely adherence to extension notification requirements. It will be available on the OIC's website. Every effort will be made to establish interoperability between the notification function and institutional web and electronic case management systems to ensure seamless and secure transmittal of information from institutions to the OIC.
The categories of information listed on the template conform to those that are generally provided to the requester and the OIC. More importantly, the information is consistent with the intent of the "duty to assist" enumerated in section 4(2.1) of the Act and Principle 3 for assisting applicants in Appendix C of the Treasury Board Directive on the Administration of the Access to Information Act. The latter requires institutions "to provide information on the Access to Information Act, including information on the processing of your request and your right to complain to the Information Commissioner of Canada."
Information in the web extension reporting template includes:
- Date of access request;
- Date completed request is received by the institution;
- Institution's file number;
- Text of the request;
- Date extension notification sent to requester;
- Reason under section 9 for extension (specify paragraph);
- Length of extension; and
- Notice of the right to complain to the OIC included.
The Information Commissioner has assigned an official to review extension notices and compile quarterly and annual statistics regarding system-wide and institutional compliance with subsection 9(2). These statistics will be published on the OIC website.