Federal Court

Administrative Law

Claimed extension of time did not constitute deemed refusal of access

Department of National Defence (DND) had unspecified involvement in contract with company and sale of surplus military assets to Uruguay. Requester filed request under Access to Information Act (Can.), to obtain information from DND relating to these matters. In March 2011, DND informed requester that 30-day period in s. 7 of Act was being extended by 1,110 days pursuant to s. 9 of Act. Information Commissioner of Canada conducted investigation into length of extension and concluded in October 2012 that extension was invalid. DND provided requested records with some redactions in September 2013. Commissioner brought application for declaration that DND was deemed to have refused request by not responding within 30-day period in s. 7 of Act. Application dismissed. Commissioner’s authority to pursue judicial review was limited to refusals to disclose or to provide access to requested record. Court had to respect language of Act and could not redraft or reinterpret provisions to reach its own view of how its purpose could be better served. Claimed extension of time did not constitute deemed refusal of access even though commissioner had found it to be unreasonable. Prior authorities clearly stated there could be no deemed refusal under Act until time period had expired. Parliament’s clear intention was that requesters could complain about claimed extensions and commissioner could investigate, but that was extent of recourse. Since court had no jurisdiction to consider application pursuant to ss. 41 or 42 of Act, court did not need to consider whether extension claimed was reasonable.

Canada (Information Commissioner) v. Canada (Minister of National Defence) (Mar. 3, 2014, F.C., Catherine M. Kane J., File No. T-92-13) 238 A.C.W.S. (3d) 789.

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