Time Extensions and Notifications Pursuant to Paragraph 9(1)(a) and Subsection 9(2) of the Access to Information Act
This notice is to advise government institutions subject to the Access to Information Act of factors the Office of the Information Commissioner (OIC) takes into account when interpreting provisions related to time extensions and reviewing notifications pursuant to paragraph 9(1)(a) and subsection 9(2) of the Act respectively. It is also intended to assist officials within both institutions and the OIC in preparing and reviewing rationales to substantiate extensions and the documentation associated with them in the context of an investigation into a complaint. 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 course of its investigations, as well as in its annual reports to Parliament and institutional report cards, the OIC has routinely 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.
Subsection 9(2) requires institutions to notify the Information Commissioner of extensions greater than 30 days at the same time they notify requesters. The OIC has identified a failure to comply with this provision as a chronic problem.
In Report Card 2008-2009: Out of Time, the Commissioner made commitments to clarify the OIC's interpretation of paragraph 9(1)(a), to develop a template to assist institutions in fulfilling the requirements of subsection 9(2) and to assign an official to review extension notices. This notice provides guidance on the OIC's interpretation and application of paragraph 9(1)(a) and proposes a template for use in the subsection 9(2) notification process.
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 is a large number of records and what constitutes a search through 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. However, the page count reflects archival standards developed prior to the deployment of electronic records systems throughout government institutions. Consequently, while the number of pages continues to be an important factor, the OIC may assess extensions on a broader, case-by-case basis with contextual factors playing a role in the assessment.
Factors the OIC may consider during extension investigations include but are not limited to:
(Please suggest additional factors.)
- Period of time necessary to determine the scope of the request and identify program areas which may hold records;
- Estimate of the number of records and/or pages responsive to the request co-related with the number of days required to process the records;
- Commonality and currency of the formats of the records;
- Degree of ease in reviewing 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; and
- Accessibility of the records [Example: Records held in multiple locations].
It is important to note the OIC does not accept an institution's inadequate records management system as a legitimate justification for a time extension. It has been suggested 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. However, 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 is 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:
(Please suggest additional factors.)
- 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 the ATIP resources required to respond to the request is adversely affecting the processing of other requests.
The OIC has not generally viewed a temporary lack of resources resulting from holidays, 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. In situations where the OIC has questions about the length of extensions, it may request institutions to provide detailed work plans to support the rationales. It may also collaborate with them to establish new response dates if necessary.
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 has found the extension to be valid.
Extension Notifications Pursuant to Subsection 9(2)
Under subsection 2 of the Access to Information 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.
Institutions have the option of sending the notifications either by regular mail, facsimile or email (a Web template is not yet available).
It is suggested to include the following information in your notification:
- 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 will assign an official to review extension notices and compile monthly, quarterly and annual statistics regarding system-wide and institutional compliance with subsection 9(2). These statistics will be published on the OIC website.