Canadian Ruling Says Courts Can Review Long Extensions

11 March 2015

The Federal Court of Appeal in Canada on March 3 issued a decision confirming that courts can review the reasonableness of time delays in agency responses to freedom of information requests.

A lower court had dismissed an application for judicial review filed the information commissioner, with the requester’s consent, under section 42 of the Access to Information Act. Commissioner Suzanne Legault appealed. The outcome, she said, should help speed response times.

The case concerned records relating to the sale of certain military assets. National Defence told the requester that it would take 1,110 days because of the number of documents involved and the need to complete necessary consultations.

The commissioner called the extension invalid and suggested faster compliance, but the agency said it would not comply. She then sought judicial support.

The lower court said it lacked jurisdiction to evaluate the extension period. The Federal Court of Appeal, however, ruled that a reading of subsection 10(3) which would prevent judicial review of a time extension would fall short of what Parliament intended with statutory deadlines.

The appeals court also found that the formula used to calculate the extension was deficient.

The decision says:

“…it is 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. In the case of paragraph 9(1)(a), this will mean not only demonstrating 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 pursuant to paragraph 9(1)(b) with respect to necessary consultations” (para. 76). It added that government institutions “must make a serious effort to assess the required duration, and that the estimated calculation be sufficiently rigorous, logic[al] and supportable to pass muster under reasonableness review.”


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