Attachment

Return to Implementation Reports No.67

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Appendix A

August 12, 1999

Guidance on the application of Section 9 of the Access to Information Act

Section 9 of the Access to Information Act states: 

Extension of time limits  9. (1) The head of a government institution may extend the time limit set out in section 7 or subsection 8(1) 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, or  (c) notice of the request is given pursuant to subsection 27(1) by giving notice of the extension and, in the circumstances set out in paragraph (a) or (b), the length of the extension, to the person who made the request within thirty days after the request is received, which notice shall contain a statement that the person has a right to make a complaint to the Information Commissioner about the extension.

Notice of extension to Information Commissioner 

(2) Where the head of a government institution extends a time limit under subsection (1) for more than thirty days, the head of the institution shall give notice of the extension to the Information Commissioner at the same time as notice is given under subsection (1).

Reasons for Extension 

Paragraph 9(1)(a) refers to a 'large' number of records and to an 'unreasonable' interference with the operations of the government institution. Both the word 'large' and the word 'unreasonable' are subjective terms that may be interpreted according to the circumstances and the context of each specific request. 

An indicator that the requested number of records or the number of records to be searched is "large" would be if they numbered more than the average number of records requested or searched in response to a request for your institution. In case of a complaint it may be helpful to have statistics available to demonstrate this comparison. The interference with your institution's operations may be considered "unreasonable" if processing the request within thirty days would require: 

- transferring resources from your operations to your ATIP unit, (even though your institution has allocated sufficient resources to the ATIP function to respond to your usual level of requests within the thirty day timeframe); 

- processing the request will require a significant diversion of the OPI subject matter expertise, to the detriment of the OPI core functions; 

- such a high proportion of the resources of the ATIP office that it would have a significant negative impact on the processing of other requests.

When an institution's information management framework and the systems and procedures for processing ATIP requests are functioning properly and the ATIP unit is adequately resourced, extensions should only be required for a low percentage of requests. A rule of thumb is that the longer the extension required, the more unusual the circumstances and the rarer the occurrence. 

Occasionally, an extension under 9(1)(b) may be justified when you need to seek legal advice in order to resolve issues related to the processing of a request, however extensions should not be applied to cover your institution's routine approval process. 

Length of Extension

Subsection 9(1) refers to extending the time limit "for a reasonable period of time". What may be considered "reasonable" in this context will depend on the circumstances of the request and the judgement of the head of the institution or his/her delegate. It should be remembered that only one extension may be applied, and that it must be applied within 30 days of the receipt of the request. The extension must provide adequate time to complete the processing of the request, otherwise the request will be deemed to have been refused by virture of subsection 10(3). 

The Office of the Information Commissioner has expressed the view that an extension under paragraph 9(1)(b) for consulting another institution should not normally be longer than 30 days (which would be the response period if the consulted institution had received the request directly) and that an extension for consulting elsewhere should not normally be longer than 60 days (the time period given third parties). For similar reasons, the Office of the Information Commissioner has expressed the view that an extension under paragraph 9(1)(c) should not normally be longer than 60 days, since the legislation sets out timeframes for third party consultations which can be completed within 60 days. Notwithstanding the Commissioner's views, we recognize that some cases require more time, and repeat that our advice is to ensure that your extensions are reasonable and provide adequate time to complete the processing of the request. 

If an extension under any paragraph is too long, a complaint made to the Information Commissioner may be considered justified. If the extension is not long enough, and the institution does not complete the request within the extended timeframe, the result will be a deemed refusal. The potential consequences of a deemed refusal were examined in the Federal Court of Appeal case of The Information Commissioner vs. The Minister of National Defence (A-785-96) (which is discussed in another information note). Institutions should therefore ensure that the extension they apply is adequate to complete the processing of the request. 

In circumstances where an extension is longer than 120 days, the notice given under section 9 must inform requestors that any complaint about the request must be made to the Information Commissioner within one year from the date the request was received (section 31).

 

Appendix B

Additional information and guidance concerning the application of Section 67.1 of the Access to Information Act 

Transitory Records 

In the Access to Information Act and the National Archives Act, the term "record" is defined as: 

In order to provide for the identification and preservation of archival and historical records, the law prohibits the destruction of government records without the consent of the National Archivist. Institutions obtain consent for the disposal of their program records according to plans developed in cooperation with the Archives. An exception is the general authority that the National Archivist has granted for the destruction of records that are transitory in nature. In this authority "transitory records" are defined as: 

Transitory records may include: information in a form used for casual communication; versions that were not communicated beyond the person who created the document; copies used for information, reference or convenience only; and annotated drafts where the additional information is found in subsequent versions (except where retention is necessary as evidence of approval or the evolution of the document); source records used for updating electronic records; electronic versions of records where a hard copy is maintained in hard copy files; and poor quality photographs which do not contribute to the purpose of the photography. 

The implementation of section 67.1 of the Access to Information Act seems to have generated concern in some areas about destroying any records. If your department is practising good information management according to the Policy on the Management of Government Information Holdings and the ATIP and National Archives legislation and policies, then there is no basis to this fear. Records which could properly be disposed of through transfer to the Archives or destruction before section 67.1 was enacted may still be disposed of through transfer or destruction. 

In all circumstances, section 67.1 prohibits the destruction of records in anticipation of a request for access under the Act. In addition, you cannot destroy any records, whether or not they are transitory records or they qualify for destruction under a Disposal Schedule, if you are aware that a request for access relating to the records has been received. 

For example: 

Scenario A 

You have drafted a report from research notes. You make ten copies of the first draft and circulate them to various colleagues for comment. Once you have received their comments you make changes to the report and submit a second draft to your boss. After your boss' changes are incorporated the report is given to your Branch head as a final document.

Once the report is final, you may destroy your research notes. You may also destroy any of the returned first draft copies if you kept a master version to indicate any significant changes. The same is true of your boss' comments if they are editorial in nature, however changes in policy, approach or recommendations should be documented. 

Scenario B 

You receive an e-mail message inviting you to a meeting on Thursday. You may delete that e-mail whenever you wish (unless you are aware that a request for access has been received). 

Scenario C 

You have received an e-mail message containing significant, substantive information. Once you either print a hard copy of the message and put it on file, or copy the content of the e-mail into the relevant electronic file, the original message may be deleted. 

Scenario D 

In preparation for moving offices, you come across a file relating to a project that was completed two years ago. You should send that file to your Records office where they will sort the content and ensure proper disposition of the file (ultimately either retention for a specific period, destruction or transfer to Archives). 

Scenario E 

You keep a notebook as an ongoing record and reminder of your daily activities. The notebook contains information related to meetings and presentations you have attended as well as information on your lunch dates and dentist appointments. Any information in the notebook that contributes to the documentation of a program or activity should be copied to the departmental record in a timely manner. Once that has been done you may dispose of the notebook at your discretion. If the notebook contains information relevant to an Access to Information request received prior to its disposal, it must be included in the records reviewed for responding to the request. 

In any of these scenarios, destroying records that should have been kept may be in violation of the policy on the Management of Government Information Holdings or the National Archives Act, but it will not constitute a violation of 67.1 unless: 

a) you destroyed the records in order to ensure that they could not be released under the Access to Information Act; 

or b) you destroyed the records in full knowledge that a request for access had already been made under the Access to Information Act. 

Institutions should remind employees to consult their Records Managers or MGIH Designated Officials for advice concerning records that must be retained or transferred to the Archives and what records may be destroyed. 

Referral of allegations 

The Information Commissioner has suggested that his office be notified of any allegations of a contravention of section 67.1 of the Access to Information Act, however we have not accepted this suggestion. We continue to advise institutions to treat such allegations in the same way any allegation of criminal activity is treated under the Government Security Policy; once the Deputy Minister has been made aware of the allegation he/she will make a decision on notifying the appropriate law enforcement agency. 

TBS is continuing to consult on the procedures in the event of a complaint or allegation relating to 67.1, and will provide further guidance in that area shortly. 

 

Appendix C

Implications of the Federal Court of Appeal decision on

The Information Commissioner vs.The Minister of National Defence (A-785-96) 

This decision has a significant impact in circumstances where, as provided in subsection 10(3) of the Act, by failing to respond within the legislated time limits an institution is deemed to have refused access to a requested record or part thereof. 

For further clarification, if no extension has been applied under section 9, an institution is deemed to have refused access on the 31st day after a request has been received. Otherwise an institution is deemed to have refused access if they have not responded by the first day after the expiry of any extension applied under section 9. 

In effect, the Federal Court of Appeal found that the Information Commissioner may use his power of subpoena to require an institution to respond to a request by a date set by the Commissioner. Specifically, the court found that once a request is deemed to have been refused, the Commissioner has the power to compel the head of the institution (or delegate) to specify what exemptions would justify the refusal of the record and to defend the applicability of those exemptions. The Court stated: 

When investigating delay complaints, the Commissioner may take an informal approach, which is to close the file as resolved once a response date commitment is given by the institution. However, he may also take a more formal approach, initiating a complaint and investigation concerning the refusal of access and requiring the institution's head or delegate to identify exemptions and justify the basis for refusing to disclose the requested records. The OIC has indicated that the formal approach will likely be taken in cases where they believe that institutions have not provided a reasonable response date commitment, have not responded by a promised date, or when the one-year period, within which the requestor must complain about exemptions, is close to running out. The OIC has also indicated that they will generally be taking a more formal approach to delay complaints and a "zero tolerance" approach to deemed refusals. 

After the institution has been given the opportunity to identify and justify exemptions, the Commissioner may ask the Court to order the release of any records for which the institution has not claimed an exemption, and he may argue that no additional exemptions, either mandatory or discretionary, be applied. Until this approach is tested, we cannot predict how the Court would decide. 

For these reasons we wish to impress upon ATIP Co-ordinators the desirability of claiming available time extensions under section 9 whenever they are needed to ensure adequate time for processing requests. We also suggest you ensure that your management understands the potential consequences of deemed refusals and that they are forewarned of requests that are approaching their deadlines.