Extension length must reflect actual time required for tasks

Complaint: The Department of National Defence (DND) took time extensions totalling 1,100 days to respond to a request for information about the sale of surplus military assets to Uruguay.

Investigation: The OIC learned from DND that the necessary consultations would only take 160 days, considerably fewer than the 880 days it claimed under paragraph 9(1)(b). DND did not justify the 230 days it had claimed under paragraph 9(1)(a) to process the responsive records.

Outcome: DND did not accept the Information Commissioner’s recommendation to respond to the requester within 90 days of the expected completion of the consultations.

Information Commissioner’s position

  • Subsection 9(1) requires extensions to be “for a reasonable period of time.” In this case, since the consultations for which the extension under paragraph 9(1)(b) was taken could be completed in far less time than claimed, the extension was not, in fact, reasonable.
  • Institutions must justify any extensions they take. For extensions under paragraph 9(1)(a) to be valid, institutions must demonstrate that the request involves a large volume of records or that searching for those records would unreasonably interfere with operations.
  • The Information Commissioner subsequently sought judicial review of DND’s actions. In a 2015 ruling (Information Commissioner of Canada v. Minister of National Defence, et al., 2015 FCA 56, rev’g 2014 FC 205; OIC summary of decision), the Federal Court of Appeal established that an unreasonable extension is not legally valid and amounts to a deemed refusal, giving a right of review to the Federal Court. It also set standards for institutions for how they must justify the use and length of extensions.
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