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Library and Archives Canada (Re), 2025 OIC 18

Date: 2025-03-24
OIC file number: 5823-02288
Access request number: A-2023-02763

Summary

The complainant alleged that the extension of time Library and Archives Canada (LAC) took under subsection 9(1) of the Access to Information Act to respond to an access request is unreasonable. The request is for RG146: Vol. 4050 1 01/05/70 04/28/72 Vol. 4050 2 04/29/72 07/15/84 Vol. 4050 3 07/16/84 11/13/84 Vol. 4051 1 05/19/60 07/31/68 Vol. 4051 2 08/01/68 01/31/71 Vol. 4051 3 02/01/71 05/25/73 Vol. 4051 4 05/26/73 11/03/82 Vol. 4052 5 11/04/82 07/15/84 Vol. 4052 6 07/16/84 11/15/84. The allegation falls under paragraph 30(1)(c) of the Act.

LAC claimed an extension of time under paragraph 9(1)(b) for 639 days to consult the Canadian Security Intelligence Service (CSIS) on 974 pages of records. The Commissioner found the extension, on less than 1000 pages of records, to be unreasonable. LAC could not show it had made a serious effort to assess how long the extension should be, relying instead on CSIS’s estimate of 18 to 24 months as the time it would need to review the 974 pages of records and provide its recommendations on disclosure.

This led the Commissioner to question, as she had in her 2022 report on her systemic investigation into LAC’s consultation practices and other matters, LAC’s position that it must consult institutions on all security and intelligence-related records—thus, jeopardizing LAC’s ability to provide timely access.

Since the Commissioner concluded that the 639-day extension of time was unreasonable, the Commissioner ordered that LAC provide a complete response to the request no later than 60 business days following the date of her final report.

She also recommended that LAC include in its next semi-annual report on its progress addressing issues raised in the systemic investigation specific updates on improved timelines for consultations with other institutions.

LAC gave notice to the Commissioner that it would not be implementing the order but indicated that it would include an update on consultation timelines in its next progress report.

The complaint is well founded.

Complaint

[1]        The complainant alleged that the extension of time Library and Archives Canada (LAC) took under subsection 9(1) of the Access to Information Act to respond to an access request is unreasonable. The request is for:

[2]        From RG146: Vol. 4050 1 01/05/70 04/28/72 Vol. 4050 2 04/29/72 07/15/84 Vol. 4050 3 07/16/84 11/13/84 Vol. 4051 1 05/19/60 07/31/68 Vol. 4051 2 08/01/68 01/31/71 Vol. 4051 3 02/01/71 05/25/73 Vol. 4051 4 05/26/73 11/03/82 Vol. 4052 5 11/04/82 07/15/84 Vol. 4052 6 07/16/84 11/15/84

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

Investigation

[4]        LAC received the access request on August 14, 2023, and extended the period within which it had to respond to the request by 639 days under paragraph 9(1)(b). Taking the extension into account, the time limit for the response would be June 16, 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)(b) reasonable given the circumstances?

[7]        LAC took 639 days under paragraph 9(1)(b) based on the following:

  • LAC stated that 974 pages of secret material required consultation and that the consultation could not reasonably be completed within 30 days.
  • LAC’s decision to extend the deadline to respond to the request was made after consulting with CSIS.
  • CSIS provided a timeline of 18 to 24 months for the amount of time needed to respond to the consultation, based on the volume and nature of records.
  • LAC stated that CSIS is currently reviewing multiple mandatory consultations with LAC, in a prioritized order, and cannot work on all consultation requests at once. The response to the consultation is expected by June 12, 2025.

[8]        Together, however, these facts do not demonstrate that there is a link between the reasons for the extension of time and its length or that LAC made a serious attempt to determine the length of the extension under paragraph 9(1)(b).

[9]        Section 4.1.32 of the Directive on Access to Information Requests requires that consultation requests from other federal government institutions are processed with the same priority as access to information requests. I am not satisfied that the 18-to-24-month timeline provided by CSIS is compliant with the Directive, especially in this case where there are fewer than 1,000 pages of responsive records.

[10]      Based on the above, I conclude that LAC failed to demonstrate that the length of time claimed under paragraph 9(1)(b) is reasonable. LAC did not provide sufficient evidence to show that claiming an additional 639 days for consultations was reasonable in the present circumstances.

Subsection 10(3): deemed refusal of access

[11]      Since the length of the time extension is unreasonable, the extension claimed under paragraph (b) is invalid. I conclude therefore that LAC is deemed to have refused access pursuant to subsection 10(3).

[12]      As a result, LAC officials were asked to provide further information about the processing of the request.

[13]      LAC informed my office that the review of the records has not been started as officials are awaiting the return of the consultation that is not due until June 2025. LAC also advised that once documents are returned, LAC will be required to review the recommendations and apply applicable exemptions. Following this, LAC will need to conduct a secondary review for redaction of personal information and other mandatory exemptions. LAC did not provide a date by which it would respond, other than to confirm that it is awaiting the return of the consultations from CSIS.

[14]      LAC has a statutory obligation to ensure that access requests are responded to in accordance with the requirements of the Act on records that are under its control. Where a consulted institution fails to provide recommendations within a reasonable period of time, the institution in receipt of the request is ultimately required to provide the requester with a timely response, without the benefit of the consulted institution’s recommendations.

[15]      This complaint raises issues that I addressed in my report regarding a systemic investigation I conducted against LAC in 2022. Sadly, the following findings and observations I made 4 years ago seem still relevant:

[33]    Given LAC’s mandate, I cannot accept LAC’s position that it must consult institutions as a matter of course on all security and intelligence matters. LAC archivists curate collections of historical records, study the events described in the records, publish articles and write books on these events and subjects. I recognize that LAC may be justified in initiating consultations on some topics, issues or historical events portrayed in the records. However, abdicating responsibility for reviewing all security and intelligence matters in their historical context would seem to contradict the institution’s very raison d’être.

[34]    LAC stated that it always consults with CSIS on access requests for records that originated there or with its predecessor. LAC has agreed to carry out these consultations as a condition of receiving records from CSIS. The agreement reached with CSIS under the Library and Archives Canada Act makes consultations necessary under 9(1)(b) the Act. However, in doing so, it may impede LAC’s ability to comply with their obligations under the Act to provide timely access. The right of access operates notwithstanding any other act of Parliament and transfer agreements ought not undermine timely access. On its face, an agreement to conduct mandatory consultations with CSIS is inconsistent with the Interim Directive, which directs institutions to limit consultations on sections 15 and 16 to two specific circumstances. Both situations require a preliminary analysis of the records by LAC who must be satisfied that sections 15 or 16 apply. This is consistent with the Act that envisions a preliminary analysis in order to determine if a consultation is necessary to respond to the request. Institutions are expected to exercise their delegated authority to exempt and disclose records under the terms of the Act, without adding time for unnecessary consultations.

[41]    The OIC recognizes that LAC has no control over how other institutions handle its consultations; however, my investigation has shown that LAC is being overly complacent in waiting for consultation responses. This, in combination with the number of consultations LAC carries out, is having a disproportionately negative effect on access for LAC requesters.

[42]    LAC must develop better practices around consultations, which could be achieved by:

  • Conducting a detailed analysis of the information in its historical context;
  • Including relevant reference material and targeted questions with each consultation request;
  • Setting a reasonable timeframe for response;
  • Monitoring the timelines established;
  • Taking action when the timeline for response is expired.

[43]    I conclude that LAC has not demonstrated that its failure to respond within legislated timeframes under the Act is based on consultations that are necessary as per paragraph 9(1)(b). Furthermore, I conclude that automatic consultations on all security and intelligence-related information does not conform to the Interim Directive. I also conclude that waiting for consultation responses, rather than exercising its fully delegated authority to respond to access requests, regardless of whether it received disclosure recommendations, is impeding LAC from providing timely access to requested records.

[16]      In response to my 2022 report, LAC created an ATIP Action Plan to address its internal systemic issues. LAC committed to providing two progress reports each year. In its December 2024 progress report, LAC noted that “consultations with other government departments remain a significant obstacle to meeting legislative deadlines on requests related to other government department records”. However, neither the Action Plan nor any of its 5 progress reports specifically address how LAC intends to overcome this obstacle.

[17]      In the current file, the complainant has been waiting more than a 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 LAC’s obligations under the Act and undermines the credibility of the access system.

[18]      Considering these points and the length of time that the response to the access request has been outstanding, I find that LAC must issue the response without undue delay.

Outcome

[19]      The complaint is well founded.

Order

I order the Minister of Canadian Heritage to provide a complete response to the access request no later than 60 business days following the date of the final report.

I recommend that the Minister include, in LAC’s next ATIP action plan report on progress, specific updates on LAC’s progress regarding timelines for consultations with other government departments.

Initial report and notice from institution

On February 18, 2025, I issued my initial report to the Minister setting out my order.

On March 7, 2025, the Minister gave me notice that she would not be implementing my order. The Minister advised that while LAC will endeavour to respond to the request as soon as possible, taking into account workloads that are already taking priority, including commitments to other orders, she does not foresee LAC completing this file before the ordered disclosure date of 60 business days after receipt of the final report.

In addition, LAC confirmed that it will specifically address an update regarding timelines for consultations with other government departments in its next ATIP Action Plan report on progress.

LAC indicated that this has been partially addressed in a variety of ways throughout the past reports, in particular the adoption of new procedures and putting in place an Archival Research Team which has significantly decreased LAC’s response times and reduced the number and scale of outgoing consultations. LAC will have more details forthcoming as it onboards to a new access request processing software in April 2025.

I remind the Minister that if she does not plan to implement my order, she must apply to the Federal Court within the timelines set out in subsection 41(2) of the Act.

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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