A recent Federal Court decision regarding the Access to Information Act (the “Act”) addresses the question whether the courts have jurisdiction in assessing timely responses to a records request. This bulletin outlines the decision and gives a brief overview of access request time limits and when extensions are allowed under the Act.

When Are Extensions Allowed Under the Act?

The federal Act provides a quasi-constitutional right of access to records under the control of a government institution. This right of access is subject to limited and specific exceptions.

The Act envisions that, in general, access requests are to be responded to within 30 days. However, the Act does set out specific circumstances that permit a government institution to claim a time extension. In most instances, time extensions must be claimed within 30 days of receiving a request. In addition, the Act’s provisions specify that the time limit may be extended for a reasonable period of time, with regards to the circumstances, if the request concerns, inter alia:

  • a large number of records; or
  • necessitates a search through a large number of records, and meeting the original time limit would unreasonably interfere with the operations of the government institution, or
  • consultations are necessary to comply with the request that cannot reasonably be completed within the original time limit.

Lengthy Extension Leads to Judicial Review

The Federal Court’s decision in The Information Commissioner of Canada v The Minister of National Defence looked at its jurisdiction to review a time extension taken by the Department of National Defence (the “Department”) to provide responsive records pursuant to a request for information under the Act. In this case, the Department claimed an extension of more than three years to respond, based on the need for consultations and the magnitude of the records.

The requester had complained to the Information Commissioner about this lengthy extension. Upon receiving a complaint, the Commissioner is required to conduct an investigation. It concluded that the Department’s time extension was wholly unreasonable, and therefore invalid. As such, the Commissioner concluded that the Department had failed to abide by the time limits set out in the Act and was deemed to have refused access to the requested records.

With the complainant’s consent, the Information Commissioner then initiated a judicial review proceeding of the Department’s access refusal under section 42 of the Act. This provision allows the Commissioner, (with the complainant’s consent) to initiate a judicial review of the head of a government institution’s decision to refuse access under the Act to requested records, within a specific period of time following the completion of the Commissioner’s investigation. In the course of the proceeding, the Commissioner sought a declaration from the Federal Court that the Department was deemed to have refused access to the records responsive to the request. The Commissioner also sought an order requiring the responsive records be disclosed within a specified period of time.

Less than a month prior to the hearing of this application, and well before the lengthy extension of time had lapsed, the Department responded to the access request. It then brought a motion asking that the Court strike the application for judicial review on the basis that it had been rendered moot (i.e. no live controversy continued to exist between the parties).

Applying the test laid out by the Supreme Court of Canada in Borowski v Canada (Attorney General), Justice Kane decided to exercise her discretion to hear the application. At paragraph 47 of her decision, Justice Kane stated that:

“one part of the application is clearly moot since the records were now provided. However, other issues remained live, particularly whether a claimed extension of time can be found to be unreasonable and therefore, invalid, leading to a deemed refusal which can then be judicially reviewed.”

The Information Commissioner raised two principle issues in its application for judicial review:

1. Did the Department fail to meet the requirements for extending the time to respond to the request pursuant to paragraphs 9(1)(a) and 9(1)(b) of the Act; and

2. If so, did the Department fail to give access to records requested under the Act (in accordance with its duty to assist requesters and within the time limits set out in the Act) and is thereby deemed to have refused access to them.

Judge Rules Time Extension Must Expire Before Court Has Jurisdiction

After an overview of the Access to Information regime, Justice Kane concluded the statutory language was clear on the limited jurisdiction of the Federal Court. She found that it is not the Court’s responsibility to second guess whether an extension claim under subsection 9(1) is reasonable. In Justice Kane’s opinion, the language of the Act clearly limits the Court’s jurisdiction to the review of refusal, whether actual or deemed, and leaves no room for the review of extensions. Therefore, it cannot be deemed refusal until the expiration of the extended time limit.

Justice Kane considered but rejected the Information Commissioner’s argument and found that there can be no refusal and therefore no review pursuant to section 41 or 42 of the Act until the deadline for processing a request has expired. It follows that the Information Commissioner or the requester cannot file an application for judicial review pursuant to section 42 of the Act until the extension period has lapsed.

According to Justice Kane, a deemed refusal under subsection 10(3) occurs only when a government institution fails to grant access to the records within the time limit set out in the Act or any applicable time extension. Therefore, the Information Commissioner can only investigate a complaint about a claimed extension of time and make recommendations to the head of the institution as well as highlight any problems in her annual and special reports to encourage timely compliance of the Act. There is no judicial review mechanism open to a requester or to the Information Commissioner for unreasonable extensions of time until such extension has expired.

In obiter, Justice Kane noted the limitation of the Act at paragraph 111 of her decision:

“a five or ten year extension may completely defeat the goals of the Act and may be prima facie unreasonable, yet there remains no recourse to address such extensions”.

On March 26, 2014, the Information Commission appealed this decision to the Federal Court of Appeal and is expected to be heard in the fall of 2014. It will be interesting to see if the Court of Appeal agrees with Justice Kane’s narrow interpretation of the Act, or if it will conclude that the Act implicitly provides jurisdiction for the Courts to assess the reasonability of extensions sought by institutions so as to provide timely access to records. We will report on this further when a decision is issued.