Health Canada (Re), 2025 OIC 34
Date: 2025-06-06
OIC file number: 5824-03837
Access request number: A-2024-000018
Summary
The complainant alleged that Health Canada did not respond to an access request within the 30 day or extended period set out in section 7 of the Access to Information Act. The request was for records from specific dates related to parliamentary proceedings in 2021 and 2022 to obtain certain documents related to the Public Health Agency of Canada and the National Microbiology Laboratory. The allegation falls under paragraph 30(1)(a) of the Act.
Health Canada is deemed to have refused access to the requested records under subsection 10(3).
The investigation revealed that, despite having completed consultations and finalized the processing, the response to the access request was then put on hold.
Health Canada advised that the request was placed on hold because, at the time of the planned response to the complainant, it was informed by one of the Offices of Primary Interest (Corporate Services Branch - Security) that multiple investigations into the incident at the National Microbiology Laboratory were still ongoing.
The Information Commissioner advised that the conduct of Health Canada in relation to the request was neither authorized nor justifiable under the Act, as the Act does not authorize an institution to “pause” the response to an access request pending the outcome of an investigation. Furthermore, the Information Commissioner stated that concerns relating to the sensitivity of the information or the impact its disclosure could have on ongoing investigations are appropriately addressed through the timely application of exemptions.
The Information Commissioner notified Health Canada of her intention to order Health Canada to provide a complete response to the access request no later than the 36th business day following the date of the final report.
Health Canada gave notice to the Commissioner that it had already provided a response to the access request. Therefore, the Commissioner advised that it was not necessary for her to issue an order to that effect.
The complaint is well founded.
Complaint
[1] The complainant alleged that Health Canada did not respond to an access request within the 30‑day or extended period set out in section 7 of the Access to Information Act. The request was for records from specific dates related to parliamentary proceedings in 2021 and 2022 to obtain certain documents related to the Public Health Agency of Canada and the National Microbiology Laboratory. The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
Time limits for responding to access requests
[2] Section 7 requires institutions to respond to access requests within 30 days unless they have transferred a request to another institution or validly extended the 30-day period for responding by meeting the requirements of section 9. When an institution does not respond to a request within the 30-day or extended period, it is deemed to have refused access to the requested records under subsection 10(3).
[3] Nevertheless, the institution is still required to provide a response to the access request.
What is a response?
[4] The response must be in writing and indicate whether the institution is giving access to any or part of the requested records.
- When the response indicates that the institution has given access to the records or part of them, the institution must provide access to those records.
- When the response indicates that the institution has denied access to the records or part of them, the institution must explain that the records do not exist or that the institution has exempted them, or part of them, under a specific provision, which the institution must name.
[5] In specific circumstances, the institution may refuse to confirm or deny in its response whether records exist under subsection 10(2).
Did the institution respond within the time limits?
[6] Health Canada received the access request on April 3, 2024, and extended the period within which it had to respond to the request by 210 days under paragraphs 9(1)(a) and 9(1)(b).
[7] Health Canada had not responded to the access request when the extension of time it had taken expired. I conclude, therefore, that Health Canada did not meet its obligation to respond to the request within the extended period. Health Canada is deemed to have refused access to the requested records under subsection 10(3).
[8] Health Canada’s Access to Information and Privacy (ATIP) Office received 211 pages of responsive records on April 18, 2024, and completed its final review following the completion of consultations on January 29, 2025. The consultations that took place were with the Public Health Agency of Canada, the Office of the Privacy Commissioner, the Canadian Security Intelligence Service, the Privy Council Office and the Department of Justice.
[9] Following these consultations, Health Canada consulted with its Executive Director of Security Management, who provided verbal recommendations for further redactions on February 7, 2025.
[10] Health Canada’s legal services unit also provided some recommendations, which were received and implemented by February 24, 2025.
[11] The report outlining the actions taken, as detailed in the file provided by Health Canada, shows that the request was added to the weekly portfolio report as part of the “C & N” process, understood by my office to stand for “Comms and Notification”, on February 24, 2025.
[12] Despite having completed consultations and finalized the processing, the response to the access request was then put on hold by the Executive Director of Access to Information and Privacy on February 27, 2025.
[13] Health Canada advised that the access request was placed on hold because, at the time of the planned response to the complainant, the Executive Director of Access to Information and Privacy was informed by one of the Offices of Primary Interest (Corporate Services Branch - Security) that multiple investigations into the incident at the National Microbiology Laboratory were still ongoing. As a result, Health Canada explained that the Executive Director was advised to pause the response to the access request until those investigations were concluded. Health Canada further explained that it would need to apply additional redactions before providing a response to the complainant, but did not indicate that it was planning to do so.
[14] The conduct of Health Canada in relation to this request is neither authorized nor justifiable under the Act. The Act does not authorize an institution to “pause” the response to an access request pending the outcome of an investigation.
[15] Timely access to government records is the linchpin to a healthy and open democratic society. In the field of access, access delayed is too often access denied. When an institution fails to respond to an access request within the statutory time limits, it is not a minor, inconsequential or insignificant oversight. Rather, it is a violation of both the letter and the spirit of the Act that affects the public’s confidence not only in its government institutions, but in the access to information system as a whole.
[16] A person who has the right to have access to records under the control of a government institution (subject to exemptions and exclusions set out in Part 1 of the Act), also has the right to have access to them in a timely manner. As the Federal Court of Appeal points out, “… the intention of the Act, as framed, is clearly to ensure that the requestors' access to information is not frustrated by bureaucratic procrastination: foot-dragging equates refusal.” (Cyanamid Canada Inc. v. Canada (Minister of Health and Welfare),1992 CanLII 15456 (FCA)).
[17] To that end, the Act requires that government institutions provide a response to an access request within the time limit set out in section 7 and restricts the taking of extensions to specific circumstances. It also imposes on institutions a statutory responsibility, pursuant to subsection 4(2.1) of the Act, to “respond to the request accurately and completely and, subject to the regulations, provide timely access to the record in the format requested”. Lastly, subsection 10(3) enables a requester to submit a complaint when an institution does not respond to an access request within the statutory period, as otherwise a requester may wait in vain for a response.
[18] Health Canada must be aware that there is no provision in the Act that allows an institution to put an access request on hold pending the outcome of an investigation. Health Canada should show leadership by responding promptly to access requests, thereby acting as an example for its public officials in fulfilling their responsibility to provide timely access to information to Canadians. Concerns relating to the sensitivity of the information or the impact its disclosure could have on ongoing investigations are appropriately addressed through the timely application of exemptions. This is the scheme envisioned under the Act; there is no provision allowing an institution to put a request on hold under the present circumstances.
[19] The complainant has now been waiting more than one year for a response to their access request. Any additional day that is taken to respond to this request is another day by which the complainant’s rights of access are being denied. This lack of responsiveness is in clear contravention of Health Canada’s obligations under the Act and undermines the credibility of the access system.
[20] Given that only 211 pages are at issue, Health Canada should be in a position to promptly apply any additional exemptions necessary to withhold sensitive information and then provide a response to the complainant.
[21] Health Canada must respond to the request within the shortest amount of time possible. Any response must necessarily be compliant with Health Canada’s other obligations under the Act, including the obligation to respond to the request accurately and completely. Taking into account the work that remains outstanding, which appears to mostly consist of the application of additional exemptions to withhold information related to security or ongoing investigations, I conclude that Health Canada must provide a response to the request no later than the 36th business day following the date of the final report.
Outcome
[22] The complaint is well founded.
Initial report and notice from institution
On May 13, 2025, I issued my initial report to the Minister of Health, setting out my order to provide a complete response to the access request no later than the 36th business day after the date of the final report.
On May 28, 2025, Health Canada gave me notice that it had already provided a complete response to the access request. Therefore, it is not necessary for me to issue an order to this effect.
Review by the 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. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.