Appeal court slams DND’s 3-year response to information request

The federal information commissioner says decision could have far reaching effects for Canadians’ rights to government documents.


Thestar.com
March 5, 2015

The federal government cannot arbitrarily decide how long it will take to release documents to the Canadian public, an appeal court has ruled.

In a stinging rebuke to the Department of National Defence, which took a 1,100-day extension to respond to a 2011 access to information request, the Federal Court of Appeal ruled government departments must base such extensions in “logic.”

“This type of perfunctory treatment of the matter shows that DND acted as though it was accountable to no one but itself in asserting its extension,” Justice Marc Noël wrote in the decision.

Federal departments and agencies are obliged to respond to access to information requests within 30 days, but can claim they need more time to assess a large request, consult with third parties, or discuss the request with other agencies.

DND did just that in 2011, when it claimed it needed 230 days to review some 2,400 pages on the sale of certain military assets. A further 880 days were required, the department claimed, to run the request by other departments.

After an investigation, the federal information commissioner took the department to court over the delay. DND released the documents 27 days before the hearing in Federal Court, which ultimately sided with the department.
But the appeal court sided with Information Commissioner Suzanne Legault this week, saying delays must be justified with a rigorous and logical explanation.

Legault called the decision a “victory for Canadians” - one she expects will “have to” have an impact on how other departments handle requests.

“It’s not just enough to say, ‘We need an extension, and it’s reasonable under the circumstances,’ ” Legault said.
“Now, I clearly have much more ammunition in my pocket when we do investigations in relation to extensions, and when we’re trying to get institutions to disclose information sooner.”

In a statement, a DND spokesperson said the department is reviewing the decision with the Department of Justice. The government has 60 days to appeal to the Supreme Court.

The access to information system is routinely used by journalists to ferret out information the government would prefer to keep secret, but it’s also used by businesses, lawyers, academics and private citizens.

Under current laws, Legault’s office has no power to compel departments to release information. But with this week’s ruling, Legault said she believes she has a clear ability to appeal to federal courts.

“It’s a very, very clear, very strong judgment by the Federal Court of Appeal, and I think it’s going to have a significant impact for Canadians’ access rights.”

Legault recently told parliamentarians that her office is struggling under budget constraints, to the point that it’s difficult for them to keep up with the increased number of complaints of delays and refusals to turn over documents.

On Thursday, she said she has requested funding for 20 additional investigators in this year’s budget - and that the additional staff would only keep the office’s head above the water.

But she said the cash crunch won’t keep her from taking the government to court again, should a similar case arise.

“If I have to go and litigate them myself, I will,” she said.