Transport Canada (Re), 2022 OIC 08
Date: 2022-02-03
OIC file number: 5820-04070
Institution file number: A-2020-00535
Summary
The complainant alleged that the time extension taken by Transport Canada to respond to a request under the Access to Information Act is unreasonable.
Transport Canada notified the complainant that, pursuant to paragraphs 9(1)(a), 9(1)(b) and 9(1)(c), it would require an additional 510 days to complete the processing of the request.
Transport Canada demonstrated that the time extensions were necessary and for a reasonable period, given the circumstances.
The complaint is not well founded.
Complaint
[1] The complainant alleged that the time extension taken by Transport Canada to respond to a request under the Act is unreasonable.
Investigation
[2] On February 1, 2021, Transport Canada received a request for records relating to the implementation of new testing and quarantine measures regarding nonessential international air travel.
[3] Based on the date of receipt of the request and the hold for clarification, the statutory deadline for a timely response was March 11, 2021.
[4] On March 11, 2021, Transport Canada notified the complainant that, pursuant to paragraphs 9(1)(a), 9(1)(b) and 9(1)(c), it would require an additional 510 days to complete the processing of the request. If valid, this would extend the due date for a response to August 3, 2022.
[5] The Office of the Information Commissioner (OIC) received the complaint on March 19, 2021.
Paragraph 9(1)(a): time extension due to volume of records
[6] 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.
Is the request for a large volume of records, or did the request necessitate a search through a large volume of records?
[7] The requested information consists of all records related to Transport Canada’s Interim Order Respecting Certain Requirements for Civil Aviation due to COVID-19 prepared for or by the senior management of Transport Canada. The request further specified that the response should include all emails, briefing notes, memorandums, impact assessments, risk assessments, plan, proposals, reports, presentations, ministerial briefs, communication briefs, decisions sought, policy and privacy materials, legal counsel on legislative authority, operating procedures and guidelines. Cabinet confidences and drafts should be excluded.
[8] According to Transport Canada, more than 3,000 pages of records fall within the scope of the access request.
[9] I consider this to be large enough volume of records to justify an extension pursuant to paragraph 9(1)(a).
Would responding within 30 days cause unreasonable interference with the operations of the institution?
[10] Transport Canada has confirmed that retrieval of the documents from the senior managers of the institution is time consuming, especially considering that some of the records are classified as Secret and can only be accessed on-site. At the time Transport Canada assessed the request and took the extension of time (February and March 2021), stay-home orders were still in effect making on-site work limited to very few individuals in order to comply with provincial guidelines.
[11] I am satisfied that meeting the original 30-day time limit to respond to the access request would have unreasonably interfered with Transport Canada’s operations. Therefore, Transport Canada has met the second requirement for extending the time it had to respond to the request under paragraph 9(1)(a).
Is the time extension for a reasonable period?
[12] Under paragraph 9(1)(a), Transport Canada extended the time limit for a response by 330 days. The factors taken into consideration when deciding on the length of the time extension include limited access to the worksite, limited personnel capacity due to school and daycare closures as well as unforeseen absences due to COVID testing and isolation requirements, as well as the number of pages to be processed.
[13] Since April 2020, I have consistently reiterated that the right of access, a quasi‐constitutional right, cannot be suspended because of the COVID‐19 pandemic. In the absence of a legislated authority to cease access to information functions during a pandemic, government leaders must take all necessary measures to ensure they are mitigating the impacts of the pandemic on the right of access.
[14] Transport Canada did not cease its operations. It continued to process access requests. In the case of this request, Transport Canada determined that, due to the evolving pandemic situation, a longer delay than might be reasonable under normal circumstances would be required.
[15] In light of the above, I am satisfied that Transport Canada applied sufficient rigour and logic as part of a serious effort to determine the duration of the extension of time, and that 330 days is reasonable and justified in the circumstances. As a result, Transport Canada met the third requirement for extending the time it had to respond to the access request under paragraph 9(1)(a).
Paragraph 9(1)(b): time extension for consultations
[16] Paragraph 9(1)(b) allows institutions to extend the 30 days they have to respond to an access request when they can show the following:
- That they need to carry out consultations on the requested records; and
- Those consultations cannot reasonably be completed within 30 days; and
- The extension of time is for a reasonable period, given the circumstances.
Were consultations necessary?
[17] In its representations, Transport Canada advised that most of the records require consultations with five government institutions: the Department of Justice Canada, the Public Health Agency of Canada, Global Affairs Canada, the Canada Border Services Agency and Public Safety Canada. The consultations with these institutions, according to Transport Canada, are necessary to allow it to either secure consent to disclose information to the requester or to better exercise its discretion when deciding to release information.
[18] In light of the above, I am satisfied that consultations are necessary.
Could the consultations reasonably be completed within 30 days?
[19] According to Transport Canada, it could not reasonably complete the consultations within the initial 30-day timeframe considering the volume of records, the security classification of the records, and that some of the institutions to be consulted, themselves, have limited capacity to review records.
[20] As a result, I am satisfied that the consultations could not reasonably be completed within 30 days.
Is the time extension for a reasonable period?
[21] Under paragraph 9(1)(b), Transport Canada extended the timeframe to respond by an additional 120 days. The length of time taken was based on the number of pages requiring consultation, the complexity, and the sensitivity of the records. In addition, Transport Canada acknowledges that the security classification of the information would render the consultations more complex to review from the other institution’s perspective.
[22] Accordingly, I am satisfied that the length of time taken pursuant to paragraph 9(1)(b) was for a reasonable period.
Paragraph 9(1)(c): extension of time for consultations with third party
[23] Paragraph 9(1)(c) allows institutions to extend the 30 days they have to respond to an access request when they can show the following:
- Circumstances where it intends to disclose records that might contain third-party information (defined at s.20);
- The extension of time is for a reasonable period, given the circumstances.
Were the consultations necessary?
[24] Transport Canada has identified at least three air travel companies who supplied some of the information contained in the records.
[25] Considering that institutions are required to notify third parties of their intention to disclose records and therefore provide them with the opportunity to make representations, I am satisfied that these consultations were necessary.
[26] Under paragraph 9(1)(c), Transport Canada extended the time to respond by an additional 60 days which is the timeframe prescribed by the Act.
Was the time extension validly claimed?
[27] To claim the extension, institutions must notify the requester of the following no more than 30 days after receiving the access request:
- that they are taking an extension and under which paragraph 9(1)(a), 9(1)(b), and 9(1)(c) in this case;
- the duration of the extension; and
- that the requester has the right to complain to the Information Commissioner about the extension.
[28] I find that Transport Canada met the three requirements to claim an extension of time, by sending a notification containing the requisite information to the requester within the timeframe to do so.
[29] The extended due date to respond to the request, therefore, remains August 3, 2022. That being said, I trust that Transport Canada will do everything it can to respect this extended due date or to disclose even before that date, given that the requester has been waiting now for more than a year for the records.
Result
[30] The complaint is not well founded.
Section 41 of the 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.