Decision under section 31, 2022 OIC 48
Decision Date: December 9, 2022
Summary
The Information Commissioner determined that a complaint was inadmissible as it did not meet the requirements of section 31 of the Access to Information Act.
Under section 31, requesters “shall” submit their complaint within a prescribed time limit. “Shall” means “must”—that is, it is mandatory for requesters to submit their complaints on or before the 60-day time limit.
The prescribed time limit to submit complaints is 60 days after one of the following:
- the day requesters receive a notice under section 7 that the institution refuses to grant access to part or all of the requested records
- the day requesters obtain access to part or all of the requested records
- in any other case, the day requesters become aware that grounds for complaint exist.
The Act does not allow the Information Commissioner to investigate complaints submitted to her after the 60-day time limit. Nor does the Act give the Commissioner the power to extend this time limit.
In the present instance, the complainant received the response from the institution by email but indicated that they had inadvertently deleted this email from their inbox before they had had the opportunity to review it.
It is the complainant’s view that they became aware of the grounds of complaint when they found the email and reviewed the content of the institution’s response and that the period for calculating the 60-day time limit to submit the complaint should start from that date.
However, it is clear from section 31 that Parliament wanted the period in which to submit a complaint to run from the day after the day the requester receives the response to their access request (a notice under section 7 or obtaining access to part or all of the requested records).
The words “in any other case” in section 31 refer to any situation other than receiving a response. Therefore, “in any other case” does not apply to the period Parliament prescribed as starting from when the requester receives the response. In addition, these words do not indicate that the prescribed period for submitting a complaint after a response is received can be extended.
If “in any other case” were interpreted as applying to the period that begins when requesters receive a response to their access and to the period that begins when they become aware that grounds for complaint exist, Parliament’s express references elsewhere in section 31 to the day requesters receive a notice under section 7 or receive records would not make sense.
The period for submitting the complaint began on the day after the response from the institution was received, not from the day the complainant found the deleted email.
Accordingly, the Information Commissioner did not accept the complaint as it was submitted outside the legislative timeframe set out in section 31.