Legal Test On Access Delays

Cabinet faces a legal test over refusal to make timely disclosure of documents under the Access To Information Act. A federal lawsuit by a leading law firm cites the Department of Employment for disregarding statutory deadlines in releasing public records.

“We’re going to the Federal Court because we’re at a loss of what to do next,” said Jeffrey Andrew, lawyer with Cavalluzzo LLP of Toronto. “We don’t seem to be getting any cooperation from the federal government. There’s been complete radio silence. You just scratch your head.”

A law firm employee on December 20, 2016 filed a routine Access To Information request for records on supplementary Employment Canada budget funding worth $19.9 million. The application sought “all documents related to this amount, including but not limited to any associated records, notes, communications, data, financial documents, calculations, spreadsheets, submissions, memoranda and commentary which could assist in providing a detailed breakdown of additional funding.”

The department failed to meet a 30-day deadline to release records, then negotiated to withhold cabinet confidences and pleaded for extra time, according to Court submissions. “Thirteen months after the original December 20, 2016 request the applicant has received none of the information requested, and has received no notification of a decision from the Department of Employment,” wrote Andrew.

“It’s just perplexing,” said Andrew. “Apparently there are records the government claims no exemption for, but they don’t follow up or respond.” Andrew said the law firm had filed a formal complaint with the Office of the Information Commissioner: “We don’t have any decision from them yet.”

The lawsuit asks that a federal judge cite Employment Canada in breach of the Act, and order staff to disclose all the budget-related documents. The ministers of labour and employment are named as defendants in the Court application.

The Act grants federal departments and agencies wide latitude to delay the disclosure of records. Blacklock’s has waited since September 23, 2013 for files on the proposed privatization of Ridley Terminals Inc., a taxpayer-owned coal facility in Prince Rupert, B.C. The Office of the Information Commissioner in a 2017 federal lawsuit cited a Newfoundland requester’s nine-year wait for records – the longest delay to date – at the St. John’s Port Authority.

The Commissioner has a current backlog of 3,400 complaints against federal departments, agencies and Crown corporations for failing to release public records as required by law. Layla Michaud, deputy commissioner, told the Commons access to information committee last November 29 that “about 50 people” are assigned to investigations.

“Bottom line, Canadians are still looking to get information from their government,” Michaud told the committee. “Hopefully at one point we will get no complaints. It would be super. But presently, that’s not the case.”

MPs approved a $1.8 million increase to the agency’s $10.4 million annual budget to hire consultants to clear the backlog.

By Jason Unrau

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