“Don’t call us, we’ll call you” The current rule in information access ?

A long time ago Benjamin Franklin came to the common sense conclusion that democratic rights – indeed democracy itself – could not subsist unless the common folk could knew what the government was doing. Franklin and his fellow constitutional philosophers twinned access to information with another fundamental right – privacy. This principle underlined that it was difficult to effectively control government if it could see into your bedroom ( of course things have gone way beyond your duvet in the modern age).

A recent Federal  Court judgment,  Information Commissioner v. Minister of National Defence 2014 FC 205 [1] , reveals how little progress has been made in Canada since the days of George III. The upshot of this matter is that, under current Access to Information legislation, the government can pretty much extend the basic 30-day period for disclosure under an access request as often and for as long as it wishes – certainly  for far longer than the disclosure will benefit anybody wishing to  contest government wrongdoing.

In the Federal court case the Information Commissioner was seeking judicial review of a decision of National Defence (“DND”) to extend the deadline for its reply to a March 4, 2011 request information  by 1110 days beyond the 30 days that are normally permitted under the Access to Information Act (“the Act”). 

A synopsis will be helpful at this point. I apologize for the dryness of some of this to non-infowonks, but please try to stay awake. It’s important.

First, the Act provides, at Section 9 that:

9. (1) The head of a government institution may extend the time limit set out in ………in respect of a request under this Act for a reasonable period of time, having regard to the circumstances, if

  • (a) the request is for 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,
  • (b) consultations are necessary to comply with the request that cannot reasonably be completed within the original time limit,

DND claimed 230 days under “(a)” and 880 days for consultations of other departments holding records under “(b)”. Note that the consultations under         “(b)” could not begin until all the records requested were identified and gathered under “(a)”.

As provided by the Act the requester complained about these extensions to the Information Commissioner and she instituted an investigation.

No consultation of other departments was even begun until July 9, 2012, 492 days after the initial request, or more than double the extension claimed under   “(a)”, above . Consultation of three departments was complete within 37 days and a fourth department, External Affairs, indicated that their response would be ready by November, 2012, 173 days after they were consulted. Thus, the  consultation responses were to occur much sooner ( about 160 days) than had been originally estimated under “(b)” (880 days).

Based on these facts the Information Commissioner concluded her investigation and (in the words of the Federal Court):

[17] On October 18, 2012, the applicant [ the Commissioner] wrote to the respondent [DND] to report the results of her investigation. The applicant informed the respondent that DND had failed to meet its duty to assist, as set out in subsection 4(2.1) of the Act, and particularly that it had not made every effort to process the request in a timely manner. The applicant also found that DND had not provided justification for the claimed extensions of time; in so doing, the applicant found that the second criteria set out in paragraph 9(1)(a) of the Act was not met. Moreover, the applicant found that DND had not provided any explanation for the discrepancy between the initial estimate (880 days) and actual time required (approximately 160 days) for the consultation.

In short, the Commissioner found that it would not have unreasonably stretched DND’s resources to gather the records much sooner and that the estimate for consultation was hugely inaccurate. As well, the Commissioner found DND wanting in its compliance with s.4(2.1) of the Act, which provides:

(2.1) The head of a government institution shall, without regard to the identity of a person making a request for access to a record under the control of the institution, make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely and, subject to the regulations, provide timely access to the record in the format requested.

The Commissioner found that the extensions that DND had made were not valid.  DND’s extensions would have taken the response to the request into April 2014, whereas it appeared that consultations would be completed by November, 2012 and that a response to the request itself could be produced soon after that.

Accordingly, the Commissioner found that DND was in deemed refusal to disclose the requested documents because their extensions were not justified. This was pursuant to ss.10(3) of the act, which provides:

10 (3) Where the head of a government institution fails to give access to a record requested under this Act or a part thereof within the time limits set out in this Act, the head of the institution shall, for the purposes of this Act, be deemed to have refused to give access.

In these circumstances, the Commissioner’s practice is to find that no extension at all should have been granted and  to recommend alternative dates for completion of the disclosure. In this case she recommended that the final disclosure of everything requested under the March 2011 request be provided by February, 2013, 90 days after the last consultation of a department by DND was completed and about 350 days before the extension that DND had claimed.

It is very important to note at this point that all the Commissioner could do at this juncture was to  recommend a new disclosure date. The  power to enforce decisions of the Commissioner under the Act comes only through the Courts.

In this case (as you might expect) DND said it could not guarantee compliance with the recommended February 2013 date. Thus there was no reasonable agreement to comply with the Commissioner’s recommendation and so, with the agreement of the requesters, the Commissioner went to Court.

She sought an Order under paragraph 42(1)(a) of the Act, which reads:

42. (1) The Information Commissioner may

  • (a) apply to the Court, ………., for a review of any refusal to disclose a record requested under this Act or a part thereof in respect of which an investigation has been carried out by the Information Commissioner, if the Commissioner has the consent of the person who requested access to the record;

At first blush, one might think that the Court had the power to give force of law to the Commissioner’s recommendation herein. After al, the Act provides:

49. Where the head of a government institution refuses to disclose a record requested under this Act ……the Court shall, if it determines that the head of the institution is not authorized to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate.

So…. the Information Commissioner , the person whom Parliament trusts to supervise  timely access  to information by the Canadian public, decides that the government failed to disclose information  under a statutory provision, deemed refusal under ss.10(3).

One would think that the Court could look at that circumstances of the Commissioner’s decision and, if it agrees with the Commissioner, order disclosure at an early date, subject to any modifications that the Court deems appropriate.

Nope.

In this case,  the Court relied on a narrow interpretation from other judgments that no refusal to disclose takes place until the deadline for disclosure has passed.And the deadline for disclosure is the limit established by the department that implemented the extension.

So, irrespective of the impropriety of the extension or the competence of the offending department and irrespective of the harm caused to the requester’s right or interests, the most unreasonable, nay wonky,  extension must pass before the Court can intervene.

In this case the Court would not be able to order disclosure until after April 4, 2014, more than a year after the much-extended deadline permitted under the Commissioner’s recommendation.

This effectively means that a department can establish a patently unreasonable extension for disclosure under a request – say, a politically- sensitive request – and the Courts, at least can’t intervene before that silly deadline passes.

Sure, the Commissioner, the public and the politicians can raise cane, but, frankly, do we even become aware of most cases, other than the really high profile flavours-of-the-month? There is no reliable way to mandate compliance with the purposes of access legislation.

There is a need for legislative change so that the Courts can effectively intervene or so that the Commissioner herself can order compliance in cases of flagrant delays [2]. This was the purported agenda of this Government when it assumed power long ago (and in a galaxy far, far away).

Ben probably has other things to think about, wherever he is – some fascinating conversations, I’m sure. But you have to think he’d be a little saddened by this state of affairs.

[1] http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/67139/index.do

[2] see for example a recent article in the Ottawa Citizen http://www.ottawacitizen.com/news/Information+terribly+outdated+says/9632802/story.html

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