Public Services and Procurement Canada (Re), 2023 OIC 09
Date: 2023-03-08
OIC file number: 5821-04047
Institution file number: A-2021-00151
Summary
The complainant alleged that Public Services and Procurement Canada (PSPC) did not respond to an access request for all records regarding the procurement of new handguns for the military, for the period June 1, 2020 to June 4, 2021, within the 30‐day time limit set out in section 7 of the Access to Information Act. The complaint falls within paragraph 30(1)(a) of the Act.
PSPC had not responded to the access request when the 30‐day time limit expired on July 5, 2021.
The complaint is well founded.
The Information Commissioner ordered the Minister of Public Works and Government Services to provide a final response to the access request no later than the 36th business day after the date of the final report.
PSPC gave notice that it would not be implementing the order. I must remind the Minister that if she does not intend to fully implement my order, she has to apply to the Federal Court for a review by the following deadline.
Complaint
[1] The complainant alleged that Public Services and Procurement Canada (PSPC) did not respond to an access request for all records regarding the procurement of new handguns for the military, for the period June 1, 2020 to June 4, 2021, within the 30‐day time limit set out in section 7 of the Access to Information Act. The complaint falls within 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] PSPC received the access request on June 4, 2021, and neither extended the time it had to respond to the request under subsection 9(1), nor transferred the request. This means that the 30‐day time limit under section 7 still applied, making the due date to respond to the request July 5, 2021.
[7] PSPC did not respond to the access request by this date. I conclude, therefore, that PSPC did not meet its obligation to respond within the 30‐day time limit. PSPC is deemed to have refused access to the requested records under subsection 10(3).
[8] The file appears to have been reassigned several times. PSPC also explained that the ongoing delay has been the result of a backlog of requests received during this same period, operational challenges in addressing the volume of requests in its inventory, heavy workloads, a high and unexpected rate of staff turnover, and competing priorities.
[9] Additionally, PSPC asserted that most of the responsive records require both internal and external consultations.
[10] I understand the importance of inter‐institutional consultations when responding to access requests. However, PSPC, as the institution in receipt of this request under the Act, has a statutory obligation to ensure that the request is responded to in accordance with the requirements of the Act on records that are under its control. While recognizing that in some circumstances it may be appropriate for an institution to consult another institution for the purpose of responding to a request, the institution in receipt of the request bears the ultimate responsibility in ensuring that the consultation process does not unduly delay access.
[11] PSPC indicated that it plans to respond to the access request by February 28, 2025.
[12] The complainant has now been waiting more than a year and a half 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 PSPC’s obligations under the Act and undermines the credibility of the access system.
[13] In my view, the ATIP office’s ongoing staffing shortages and competing priorities, cannot absolve PSPC of its statutory obligation to provide timely access to records requested under the Act. I consider that PSPC’s failure to take necessary steps earlier on, to provide a response in a materially lesser period of time, is not a reason to delay a final response to the request; rather, it is a reason to expedite the final response.
[14] Considering these points and the length of time that the response to the access request has been outstanding, I find that PSPC must issue the response without undue delay.
Result
[15] The complaint is well founded.
Order
Under subsection 36.1(1) of the Act, I order the Minister of Public Works and Government Services to provide a complete response to the access request no later than the 36th business day after the date of the final report.
On January 30, 2023, I issued my Initial Report to the Minister of Public Services and Procurement, setting out my order. On February 24, 2023 the Assistant Deputy Minister, Policy, Planning and Communications gave me notice that PSPC would not be implementing my order.
Instead, PSPC indicated they could provide a significant partial response, representing approximately half of the records, within 46 business days. PSPC also stated that additional time will be required and are proposing a final and complete response to be provided no later than August 31, 2023.
I must remind the Minister that if he does not intend to fully implement my order, he has to apply to the Federal Court for a review by the following deadline.
When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They must apply for this review 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.