On March 3, 2015, the Federal Court of Appeal ruled that federal government institutions cannot arbitrarily decide how long it will take to release documents in response to access requests under the Access to Information Act, R.S.C., 1985, c. A-1 (the “ATI Act”). In Information Commissioner of Canada v Minister of National Defence, 2015 FCA 56, the Federal Court of Appeal overturned the decision of the Federal Court that dismissed an application for judicial review of a decision by the Department of National Defence (DND) to assert an extension of 1,110 days to provide records in response to an Access To Information request.
In February 2011, a request was made to DND for access to records relating to the sale of certain military assets. A month later, DND notified the requester that pursuant to section 9(1) of the Act, it was extending the 30-day time limit set out in section 7 by 1,110 days in order to deal with the request. In response, the requester filed a complaint with the Information Commissioner. During the investigation, DND informed the Commissioner that 230 days were required to process 2,400 pages of records and 880 more days were required to complete consultations with third parties with regard to potentially sensitive proprietary information. Other reasons for the delay were stated to be the need to review documents for solicitor-client and litigation privilege, a major software malfunction in DND’s access to information unit, and the need to consult with three government departments.
In October 2012, the Commissioner concluded its investigation with a finding that DND breached its duty under section 4(2.1) of the Act, as it failed to make every effort to process the request in a timely manner. DND’s asserted extension was found to be invalid as the criteria for an extension under section 9(1)(a) were not all met, and the time taken under section 9(1)(b) was unreasonably long. It was concluded that the applicable time limit was 30 days after the original request was made. Accordingly, DND was in a state of deemed refusal. The Commissioner allowed DND an additional 4 months to provide the requester access to the documents, but DND refused to commit to this deadline.
In January 2013, the Commissioner filed an application for judicial review in Federal Court, seeking a declaration that DND was in a state of deemed refusal for having failed to give access within the time limits set out in the Act and an order directing DND to respond to the request. Twenty-seven days before the Federal Court hearing, DND gave the requester access to the requested documents. DND then moved to dismiss the Commissioner’s application on the basis that the underlying decision had become moot.
Federal Court Decision
In a March 2014 decision, the Federal Court disposed of both the motion to dismiss and the judicial review application. Although the issue had become moot, the Federal Court exercised its discretion to consider the Commissioner’s request for a declaration. The Federal Court concluded that its jurisdiction to review complaints to the Commissioner under sections 41 and 42 was limited to instances of refusal. The Federal Court held that where a government institution takes an extension under section 9(1), it will not enter a state of deemed refusal unless and until it fails to give access by the date on which its asserted extension expires.
The Court of Appeal Decision
The Court of Appeal concluded that a deemed refusal arises whenever the initial 30-day time limit has expired without access being given, in circumstances where no legally valid extension has been taken. Therefore, there is a right to judicially review the validity of an extension pursuant to sections 41 and 42 upon the expiration of the 30-day limit, as long as a complaint to the Commissioner is filed and an investigation report is completed by the Commissioner.
The Court of Appeal held that it was not enough for a government institution to simply assert the existence of a statutory justification for an extension and claim an extension of its choice. An effort must be made to demonstrate the link between the justification advanced and the length of the extension taken. The institution must demonstrate not only that a large number of documents are involved, but that the work required to provide access within any materially lesser period of time than the one asserted would interfere with operations. The same type of rational linkage must be made with respect to necessary consultations. A genuine attempt must be made to assess the required duration of the needed extension. The Court of Appeal agreed with the Intervener, the Information and Privacy Commissioner of Ontario, that the formula to calculate the projected time extension used by DND failed to demonstrate that such a genuine attempt was made. It was held that DND had acted as though it was accountable to no one but itself in asserting its three year extension.
The decision is undoubtedly a significant victory for the public’s right to access information held by federal government institutions. First, it is no longer sufficient to claim a need for an extension without providing a logical and convincing explanation for the delay. Second, the decision establishes the Commissioner’s right of appeal to the federal courts regarding extensions. The decision also brings federal institutions closer in line with provincial institutions – by way of comparison, no extension exceeding 10 months has ever been found reasonable in Ontario. (The government has 60 days from March 3rd to appeal the decision to the Supreme Court of Canada.)