Library and Archives Canada (Re), 2021 OIC 27

Date: 2021-10-21
OIC file number: 3218-00682
Institution file number: A-2017-01183

Summary

The complainant alleged that the 29,200-day time extension claimed by Library and Archives Canada (LAC) to process a request made under the Access to Information Act is unreasonable.

The Office of the Information Commissioner (OIC) received the complaint on May 2, 2018.

LAC identified 780,000 pages of paper and microfilm records responsive to the request for Royal Canadian Mounted Police (RCMP) records on Project Anecdote.

LAC did not meet the requirements of a time extension under paragraph 9(1)(a); therefore, its time extension was invalid. In the absence of a valid time extension, institutions are required to respond to an access request within 30 days, which LAC also failed to do. Therefore, LAC is deemed to have refused access to the requested records pursuant to subsection 10(3).

The complaint is well founded.

Complaint

[1]      The complainant alleged that the 29,200-day time extension claimed by Library and Archives Canada (LAC) to process a request made under the Access to Information Act is unreasonable.

[2]      The Office of the Information Commissioner (OIC) received the complaint on May 2, 2018.

Investigation

[3]      On March 14, 2018, LAC received an access request for the Royal Canadian Mounted Police (RCMP) records on Project Anecdote. Based on the date of receipt of the access request, the statutory 30-day deadline to respond was April 13, 2018. On April 10, 2018, LAC claimed a 29,200-day extension of time under paragraph 9(1)(a). This extended the due date for a response to March 25, 2098.

Paragraph 9(1)(a): extension of time due to volume of records

[4]      Paragraph 9(1)(a) allows institutions to extend the 30 days they have to respond to an access request when they can show the following:

  • the request is for a large number of records or requires searching through a large number of records;
  • meeting the 30-day deadline would unreasonably interfere with the institution’s operations; and
  • the extension of time is for a reasonable period, given the circumstances.

[5]      To claim the extension, institutions must notify the requester of the following no more than 30 days after receiving the access request:

  • they are extending under paragraph 9(1)(a) the time they have to respond to the access request;
  • the duration of the extension; and
  • the requester has the right to complain to the Information Commissioner about the extension.

Is the request for a large volume of records, or did the request necessitate a search though a large volume of records?

[6]      LAC explained that the responsive records consist of a complete series of records held by LAC as they relate to the Project Anecdote investigation, which documents a fraud and corruption investigation undertaken by the RCMP in the late 1990s and early 2000s. The records include but are not limited to investigation reports, witness statements, briefing notes, exhibits, search warrants, detention records, communications with foreign governments, third party financial records and statements as well as requests for legal assistance in the investigation.

[7]    LAC identified 780,000 pages of paper and microfilm records responsive to this request.

[8]    I am satisfied that the access request is for a large number of records.

Would responding to the request within 30 days unreasonably interfere with LAC’s operations?

[9] I am satisfied that, given the large volume of records, responding to this request within 30 days would have unreasonably interfered with LAC’s operations.

Is the length of the time extension reasonable?

[10]    LAC identified 780,000 pages of responsive records in paper or microfilm format, as follows:

  • 96 microfilm reels equaling 480,000 pages (1 microfilm reel = approx. 5,000 pages);
  • 31 meters of textual records (5 volumes in each) equaling 155 volumes; this consists of 300,000 pages (1 volume = approx. 2,000 pages)

[11]    According to LAC, all paper and microfilm records will first need to be converted into electronic format in order to be processed. LAC explained that it would take a Digital Imaging Technician approximately 1.5 years to digitize the 780,000 pages of records. Textual records are digitized at a rate of 1,000 pages per day and microfilm are digitized at a rate of 30,000 images per day. This would require 25% of LAC’s Digital Imaging resources if one person were assigned to the processing full-time.

[12]    In addition, the records require a page-by-page review in order to determine the applicability of exemptions, including subsections 19(1) and 16(1), and sections 20 and 23. LAC advised that consultations with the RCMP and the Department of Justice are likely necessary, with a possibility of others, including foreign governments. LAC would then have to review the consultations responses, and apply exemptions as required. According to LAC, an analyst can reasonably review 50 pages of records a day (1000 pages/month).

[13]    In addition, LAC identified the following media as being responsive: 83 audio cassettes, 214 3.5 inch discs, 13 video tapes, 29 CD-ROMs, 11 zip disks, 5 jaz disks, 4 DC 6525 data cartridges, 1 hard drive, 1 zip drive, 1 Bernouillic multidisc and 3 Sony digital data storage devices.

[14]    However, LAC indicated in its representations that

… the original assessment of 80 years did not take into account the time required to process records stored on other media ... It is unclear at this time what records may be stored on these devices as the records have not yet been fully assessed or processed by LAC content specialists. The Digital Integration team has begun the task of identifying records of archival value stored on the various formats but the work has been delayed by the current telework situation. There are unknown and problematic files types that cannot be easily transferred to LAC ATIP for processing and upload to AccessPro Redaction. The project is scheduled to be completed in the 2021/22 fiscal year.

[15]    In its representations, LAC conceded that it did not meet this requirement of paragraph 9(1)(a) in its initial extension or its subsequent justifications.

[16]    I agree. The link between the justifications advanced by LAC and the length of the extension claimed has not been adequately explained, nor has LAC demonstrated that the work required to provide access within any materially lesser period of time than the one asserted would interfere with its operations.

[17]    For example, LAC has not demonstrated in what way the records are complex; why the time extension calculation was based on a single FTE working on the processing of this request; or why tasks were calculated consecutively when some of the work could be completed concurrently (such as reviewing records as they are scanned, in batches).

Subsection 10(3): deemed refusal of access

[18]    Under subsection 10(3), when institutions do not respond to an access request within either 30 days or at the end of a period for which they took a valid time extension, they are deemed to have refused access to the requested records.

Is LAC in deemed refusal pursuance to subsection 10(3) of the Access to Information Act?

[19]    In my view, LAC did not meet the requirements of a time extension under paragraph 9(1)(a); therefore, its time extension was invalid. In the absence of a valid time extension, institutions are required to respond to an access request within 30 days, which LAC also failed to do. Therefore, LAC is deemed to have refused access to the requested records pursuant to subsection 10(3).

[20]    Where an institution is in deemed refusal, the OIC, in keeping with its ombudsperson function, strives to ensure that the institution respond to the request as expeditiously as reasonably possible. To that end, the OIC asks the institution to provide details regarding what needs to be done in order to complete the processing of the request, and commit to providing a response by a reasonable date.

[21]    In July 2018, in order to assist the complainant and in the hope of reducing the scope of the original request, LAC released a listing of the types of files contained in the records via a finding aid created by the RCMP at the time of transfer of the records to LAC. The finding aid provided an overview of the contents of the records. This resulted in the complainant submitting multiple additional requests. While these subsequent requests were more specific and narrow, the complainant opted to continue with the original request nevertheless.

[22]    For over three years, the OIC attempted to assist LAC in arriving at a reasonable timeframe to process this request. The OIC made numerous requests for representations and information from LAC regarding the work accomplished to date, through written correspondence and in meetings. For example, weekly correspondence and a high-level meeting between OIC and LAC officials was required before the OIC obtained LAC’s first set of representations, in January 2019.

[23]    In reviewing this information, the OIC discovered that, in August 2018, LAC placed the request on hold in its system, in the hope that the finding aid would satisfy the complainant and they would discontinue their request. When the OIC questioned LAC on this action, LAC removed the hold. However, it would appear that work to process this request did not recommence, despite the hold being lifted.

[24]    For the next year, the OIC attempted to obtain further information from LAC, including updates on the digitization of the records, the classification level of the records, whether interim releases would be feasible, etc. No information was forthcoming from LAC. Its ability to respond to the OIC’s questions was then further hampered by the COVID-19 pandemic and its resulting workplace restrictions.

[25]    In March 2021, LAC estimated a new timeframe of 65 years to process the request. LAC claims that the resources required to reduce this estimated timeframe would go beyond what is reasonable and feasible. Doing so would mean that resources from different LAC units would need to work full-time on this single request for prolonged periods of time, which would be to the detriment of advancing other requests, and causing significant delays in their completion.

[26]    LAC also indicated that:

… the processing of this request would monopolize the resources of ATIP at LAC and would more than likely require supplementary budget support in order to maintain services on other requests … At this time, LAC ATIP must consider this request in light of the ATIP legislation, and regulations that are in place to respond to requests. It is possible that, at a later date, there will be a different environment to review records requested through the ATIP process. Such changes may include declassification of records or downgrading, or the proactive opening of records that exceed 110 years since its creation. This may have an impact on LAC’s timelines for responding to requests in the future.

[27]    LAC has not, in my view, adequately addressed the ongoing delay in advancing the processing of the request.

[28]    LAC has neither defined or procured the required resources, nor worked towards the completion of the processing of this request in any meaningful way. In fact, LAC has indicated that it is not at present working on processing this request.

[29]    LAC continues to be in deemed refusal while failing to offer any concrete plan or commitment to respond, despite numerous opportunities to do so.

Result

[30]    The complaint is well founded.

Recommendations

I recommend that the Minister of Canadian Heritage:

  • Complete the processing of the access request A-2017-01183 and provide a response to the access request forthwith.
  • Email a copy of the response letter to the Office of the Information Commissioner’s Registrar (Greffe-Registry@oic-ci.gc.ca).

On August 27, 2021, I issued my initial report to the Minister of Canadian Heritage setting out my recommendations.

On September 22, 2021, the Chief Librarian and Archivist gave me notice that “…LAC cannot implement [my] recommendation to complete this request in a forthwith manner and maintains that it would take approximately 65 years to do so”.

By way of reasons, the Chief Librarian and Archivist maintained that: LAC has already provided a detailed explanation for why the request cannot be completed in a shorter period than the 29,200-day time extension initially claimed; and that “prioritizing the completion of this request is simply not possible without severely impacting LAC’s operations, and particularly its capacity to maintain equitable services in the fulfilling the requests of other Canadians”. It was further stated that: “…LAC continues to be committed to fulfilling the smaller, more focused, and feasible requests from the requestor, but maintains that its time-estimate to process this particular request remains valid, accurate, and consistent with the spirit of the ATIA to equitably provide Canadians with access to information.”

Section 41 of the Access to Information Act provides a right to the complainant who receives this report 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.

Related litigation proceeding before the Federal Court: Michael Dagg v. Minister of Canadian Heritage, T-1854-21. The steps taken in this proceeding are available using the following link: https://www.fct-cf.gc.ca/en/court-files-and-decisions/court-files 

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