Library and Archives Canada (Re), 2021 OIC 14

Date: 2021-05-12
OIC file number: 3218-01665
Institution file number: A-2017-00639/JFC

Summary

The complainant alleged that Library and Archives Canada (LAC) did not respond to an access request within the time limits set out in the Access to Information Act. LAC took a 425-day extension of time but failed to meet the extended deadline for a response. LAC was therefore in deemed refusal pursuant to subsection 10(3). LAC’s delay was partially due to a lengthy consultation with the Canadian Security Intelligence Service. Furthermore, LAC could not process the records, which were classified as Top Secret, as it does not have the infrastructure in place to do so. The Information Commissioner recommended that the Minister of Canadian Heritage find an interim solution to process this request and strongly urged him to implement a permanent and timely solution to allow LAC to handle and process classified records. The Minister acknowledged LAC’s need to have digital processing capability and informed the Commissioner that LAC responded to this request by redacting the records by hand. The complaint is well founded.

Complaint

[1]      The complainant alleged that Library and Archives Canada (LAC) did not respond to an access request within the time limits set out in the Access to Information Act.

Investigation

[2]      On September 29, 2017, LAC received an access request for the Royal Canadian Mounted Police’s Security Service records on George Raymond Motolanez.

[3]      Based on the date of receipt of the access request, the statutory 30-day deadline for a timely response was October 29, 2017.

[4]      On October 26, 2017, within the legislative timeframe, LAC took a 425-day extension of time under paragraphs 9(1)(a) and 9(1)(b) to complete the processing of the request. If valid, this time extension would have extended the due date for a response to December 28, 2018.

[5]      LAC did not meet the extended deadline for a response, and the Office of the Information Commissioner (OIC) received the complaint on February 13, 2019.

Subsection 10(3): deemed refusal of access

[6]      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 pursuant to subsection 10(3) of the Act?

[7]      Taking into account that LAC did not respond to the request by the statutory deadline or the extended deadline, LAC is deemed to have refused access to the requested information, as per subsection 10(3).

[8]      That being said, the investigation has demonstrated that LAC’s processing of the request was delayed in part by a lengthy consultation with the Canadian Security Intelligence Services (CSIS) on the entirety of the records given the classification of those records (i.e., Top Secret classified documents). It also showed that when CSIS returned the consultation to LAC in February 2020, LAC could not continue the process of the records as it does not have the infrastructure in place to process Top Secret records. The lack of infrastructure is unfortunately not a new or temporary problem; this is a situation that LAC has faced for a number of years. This investigation, as well as other files being investigated by my office, has made me aware that this is not the only access file within LAC’s backlog that is affected by this problem.

[9]      In some complaint files, CSIS has accepted to downgrade the classification of records in order to accelerate the treatment of documents. However, for this specific request, CSIS did not agree to downgrade the classification of responsive records. In its representations to the OIC, LAC has therefore, confirmed that it is not working on processing this request, nor does it plan to until the required infrastructure is put in place, something that will not occur in the immediate future.

[10]    A lack of the appropriate infrastructure to handle and process classified records is not a valid justification for LAC’s failure to meet its obligations under the Act. While I understand that the procurement of the appropriate infrastructure to process classified documents cannot be achieved overnight, LAC has been aware of this problem for years and cannot simply accept the status quo and keep avoiding to take actions to fulfil its statutory obligation. This is one of the reasons why I decided, on January 15, 2021, to initiate a systemic investigation into LAC’S ongoing failure to provide timely access to information.

Result

[11]    The complaint is well founded.

Recommendations

I recommend that the Minister of Canadian Heritage:

1. Take the necessary steps to respond to the access request by March 31, 2021; and
2. Email a copy of the response letter to the Office of the Information Commissioner’s Registrar (Greffe‐Registry@oic‐ci.gc.ca).

On February 26, 2021, I issued my initial report to the Minister of Canadian Heritage setting out my recommendations. While I recommended finding an interim solution to process this particular request, I also strongly urged the Minister to implement a permanent and timely solution to allow LAC to fulfill its obligations under the Act.

On April 12, 2021, the Minister of Canadian Heritage gave me notice that LAC responded to the request on April 7, 2021. The Minister acknowledged that LAC does not have the infrastructure needed to digitally process and handle Top Secret documents. LAC redacted the request in question by hand, which was only possible due to the limited number of pages (350) involved. The Minister indicated that LAC expects to have digital processing capability in place by the end of September 2021, and that discussions are underway with CSIS to downgrade the classification of certain other records originating with CSIS and transferred to LAC.

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.