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Department of Justice Canada (Re), 2025 OIC 19

Date: 2025-03-24
OIC file number: 5824-00249
Access request number: A-2023-00385

Summary

The complainant alleged that the extension of time the Department of Justice Canada (Justice) took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for all records pertaining to the booking and subsequent cancellation of Professor Alice Sullivan's International Women's Day 2024 presentation to Department of Justice staff.

The allegation falls under paragraph 30(1)(c) of the Act.

Justice claimed an extension under paragraph 9(1)(a) for 292 days which the investigation determined to be unreasonable. Justice also claimed 90 days under paragraph 9(1)(b) but failed to respond within this time frame. As a result, Justice was deemed to have refused access to the requested records under subsection 10(3). The investigation also found that Justice based the time extension on a page count that did not truly reflect the number of records responsive to the request because it failed to properly identify duplicates and non relevant records.

The Information Commissioner ordered that Justice provide a complete response to the access request no later than 36 business days following the date of the final report.

Justice gave notice to the Commissioner that it would be implementing the order and would respond to the access request within the ordered time frame.

The complaint is well founded.

Complaint

[1]        The complainant alleged that the extension of time the Department of Justice Canada (Justice) took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for the following:

[2]        All records pertaining to the booking and subsequent cancellation of Professor Alice Sullivan' International Women's Day 2024 presentation to Department of Justice staff.

[3]        The allegation falls under paragraph 30(1)(c) of the Act.

Investigation

[4]        Justice received the access request on March 15, 2024, and took a 382-day extension of time to respond to it. The extension comprised 292 days under paragraph 9(1)(a) and 90 days under paragraph 9(1)(b). Taking the extension into account, the time limit for the response would be May 1, 2025.

Reasonable length of extension of time

[5]        Paragraphs 9(1)(a), (b) and (c) allow institutions to extend the 30-day period for responding to access requests if the length of the extension of time is reasonable and justified in the circumstances. If this requirement is not met, the extension of time is not valid, with the result that 30 days remains the applicable time limit for responding to the request.

[6]        In taking an extension of time, an institution must show the following:

  • It made a serious effort to assess the necessary length of the extension of time.
  • There is a link between the reasons the extension of time is needed and the length of the extension.
  • The calculation of the length of the extension was sufficiently rigorous, logical and supportable, such that it would pass a reasonableness review.

Is the length of the extension of time under paragraph 9(1)(a) reasonable given the circumstances?

[7]        Justice took 292 days under paragraph 9(1)(a) based on the following:

  • The request is for “all records”, requiring all the employees involved to gather every single record that would potentially be relevant to the text of the request.
  • The request is also seeking a time frame of “anything prior to and including March 15, 2024” and accordingly, the number of records that would be included in the material gathering cannot be anticipated.
  • Many Offices of Primary Interest (OPIs) requested extensions due to the vastness of the scope of request. The OPIs needed time to review the records they had to assure that they captured everything in this file.
  • Several OPI’s required additional clarification to outline the extent and scope of the request prior to commencing a comprehensive search of the records.
  • The OPI’s main job is not access to information and they are also juggling their main workload on top of our many access requests.
  • Almost 4000 pages of responsive records have been received so far, which will take any analyst at the very least 4-5 months to complete a basic review (i.e. what is not relevant, duplicates, identification for consults and internal reviews).
  • 13 separate OPI were tasked.

[8]        While I can sympathize with Justice’s difficulties, I am not convinced that these facts demonstrate a link between the reasons for the extension of time taken and its length or that Justice made a serious attempt to determine the length of the extension.  The reason I am not convinced is based on the following factors:

  • The request pertains to a single presentation by one individual in a specified time period – International Women’s Day, Friday, March 8, 2024.
  • The request as written is clear and concise so it is unclear why more time is required to understand the “extent and scope” of the request.
  • Despite an OPI’s “main job”, respecting the timelines of the Access to Information Act is part of every public service employee’s responsibilities.
  • The fact that the analyst and the Justice Access to Information and Privacy (ATIP) office have a large workload are not circumstances relevant to the specific access request.
  • A general service standard of less than 1,000 pages per month for 4,000 pages of records does not demonstrate that rigorous analysis of the requirements of processing the access request took place.

[9]        I conclude that the 292 days claimed under paragraph 9(1)(a) is neither reasonable nor justified in the circumstances.

Is the length of the extension of time under paragraph 9(1)(b) reasonable given the circumstances?

[10]      Justice took the 90-day portion of the extension of time under paragraph 9(1)(b).

[11]      However, Justice had not responded to the access request when the 90-day extension expired on July 15, 2024. I therefore conclude that Justice did not meet its obligation to respond to the request within the extended period. The issue of whether the extension of time was reasonable is moot.

Subsection 10(3): deemed refusal of access

[12]      Since the extension under paragraph 9(1)(a) is invalid, and Justice did not respond by the extended time limit it took under paragraph 9(1)(b), I conclude that Justice is deemed to have refused access pursuant to subsection 10(3).

[13]      As a result, Justice officials were asked to provide further information about the processing of the request. Justice responded with the following new information:

  • Justice ATIP officials confirm that the initial review is completed. With the removal of duplicates and non-relevant information,1,200 pages remain out of the original 4,000 pages retrieved.
  • ATIP officials claim they will need to seek clarification from OPIs for some records and send a third-party notice. In addition, considering the analyst’s heavy workload, the analyst will be able to review approximately 500 pages per month.
  • Justice will conduct internal consultations and will consult with a third party.
  • Justice officials require 40 days for the final review and approval process.
  • Justice provided January 31, 2025, to send a complete response to the access request; however, it failed to meet this date.

[14]      Either Justice needs to improve the way in which it retrieves records, possibly through better-coordinated responses from the OPIs, or it needs to invest in technology to more efficiently identify duplicates and irrelevant records - or both. It is troubling that Justice based its time extension on a page count that did not truly reflect the number of records responsive to the request, because of its deficiencies in these areas.

[15]      In addition, the analyst’s workload does not justify a review rate of 500 pages per month, nor has Justice provided convincing justification for a final review period of 40 days.

[16]      Given the time that the requester has been waiting for a response to the request, I find that Justice must respond to the request without undue delay.

Outcome

[17]      The complaint is well founded.

Order

I order the Minister of Justice to provide a complete response to the access request no later than 36 business days following the date of the final report.

Initial report and notice from institution

On February 14, 2025, I issued my initial report to the Minister setting out my order.

On March 14, 2025, the Director of Justice Access to Information and Privacy gave me notice that Justice would be implementing my order. Justice confirmed that the request has been assigned to a senior analyst who will oversee the completion of the file.

Review by Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. Whoever applies for a review must do so within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by this deadline, this order takes effect on the 36th business day after the date of this report.

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