Delays

Canada (Information Commissioner) v. Canada (Minister of National Defence) (1996) 120 F.T.R. 207, under appeal A-785-96

• The issue of delays at ND in answering access requests was brought before the court by the Information Commissioner to seek the aid of the court in forcing the department to answer a request. The Information Commissioner took the position that by adopting the Act, Parliament directed government institutions to respond to access requests without delay and to provide all requested records expeditiously. The Information Commissioner made this application to the Federal Court when ND not only failed to respect the Act's response deadlines, but when it also failed to respond to several amended deadlines negotiated with the Commissioner. In the end, the answer was so long in coming (some 16 months) that the requester even lost his right to complain to the Information Commissioner about the exemptions which were involved in the long-delayed answer.
  
  
• The court dismissed the Application of the Information Commissioner but ordered costs against the Minister of National Defence. The court concluded that the delay by ND in answering was excessive but it did not agree with the Information Commissioner's contention that there were certain consequences as a result of the delay. In particular, the court did not agree that there was any restriction, as a result of delay, on ND's ability to apply exemptions. As well, the court did not agree with the Information Commissioner's contention that, if exemptions were allowed, the court should review their appropriateness without the further delay which would be caused by sending the matter back to the Information Commissioner for investigation.
  
  
• The court made no reference in its decision to the Information Commissioner's contention that he had no jurisdiction to go back and investigate the exemptions since the one-year period had elapsed during which a complaint about the exemptions could properly be made. In the court's view, the application for review by the Commissioner was premature because he had not investigated the merit of the exemptions and it is necessary for him to do so before asking the court to become involved. The Commissioner is appealing this decision in order to clarify his jurisdiction to investigate exemptions after the one-year complaint period has expired and in order to clarify the consequences on departments which fail to respect response deadlines.