Annual Report: 2002-2003

Background

Under the Nunavut Land Claims Agreement of 1993, the federal government is required to make expenditures on a number of implementation activities. A corporation made an access request to Indian and Northern Affairs Canada (INAC) for information about the expenditures made under the Claims Agreement during the first 10-year implementation period.

Upon receipt of the request, INAC determined that it would have to undertake consultations with other government institutions before responding. Consequently, INAC notified the applicant of its decision to extend the response deadline for consultation purposes, as permitted by paragraph 9(1)(b) of the Act. The department did not inform the requester how much additional time would be required, prompting a complaint to the Information Commissioner.

Legal Issue

Do requesters have a right to know when they can expect answers to their access requests? Put another way: What does a department do when it has a legitimate need to consult another government institution but no control over when the other institution will reply?

The commissioner determined that, in this case, there was a legitimate need to consult with other government institutions and those consultations could not be completed within 30 days from the date of the request. Subsection 9(1) allows for an extension of the response deadline "for a reasonable period of time" in these circumstances. However, subsection 9(1) also requires that notice be given to the requester and sets out what information the notice must contain. One such piece of information which must be included is "the length of the extension".

The department indicated that it had adopted a policy of not indicating the length of the extension in the required notice because of the difficulty in predicting how long the consultations would take.

The commissioner concluded that INAC was legally obligated to inform requesters of the duration of the extension claimed for consultation purposes. INAC agreed to respect this obligation in future.

Lessons Learned

In cases where external consultations are required in order to properly answer an access request, departments must balance the requester's right to a timely response with the requirement to conduct meaningful consultations. The way to do this is to communicate with the party to be consulted in advance of claiming an extension in order to determine what length of time is reasonably required.

When the consulted party does not respond to the consultation within the time stipulated in the extension notice, institutions should proceed to answer the request without further delay. There is no justification for open-ended waiting for consulted parties to provide their views. Once the consulted party has been given a reasonable period of time to respond, the department's obligation shifts to giving an answer to the access request.