T-1042-86
T-1090-86
T-1200-86
Information Commissioner of Canada (Applicant)
v.
Minister of External Affairs (Respondent)
INDEXED AS: CANADA (INFORMATION COMMISSIONER) v.
CANADA (MINISTER OF EXTERNAL AFFAIRS)
Trial Division, Jerome A.C.J.—Ottawa, December
2, 1987, March 9 and April 15, 1988.
Access to information — Department of External Affairs
invoking Act s. 9(1) to delay access to information concerning
free trade negotiations with U.S.A. — Allegation extensions
excessive, unjustified — Policy decision to invoke extension
provision pending public release of information — Most of
material since released — Application to dismiss s. 42 review
applications as issue now academic — Whether extensions
constituting deemed refusals — Whether Federal Court having
jurisdiction to grant declaratory relief in circumstances.
Judicial review — Equitable remedies — Declarations —
Access to information — External Affairs stonewalling
regarding release of information on free trade negotiations by
invocation of Act, s. 9(1) — Whether extensions excessive,
unjustified — Whether constituting deemed refusals — Infor
mation since released — Application to dismiss s. 42 review
applications as academic — Under Act, government institu
tions having on-going relationship with Information Commis
sioner — Declaration as to requirements for extension assist
ing both parties in determining proper course under Act.
Federal Court jurisdiction — Trial Division — Access to
information — S. 42 review of s. 9(1) delay in giving access —
Information since disclosed — Argument that issue now aca
demic — Whether jurisdiction lost — Court having to decide
whether deemed refusal — Court's powers under s. 49 —
Delayed access subject to judicial review.
These were motions to dismiss applications for review under
section 42 of the Access to Information Act. The requestors
sought disclosure of information relating to the free trade
negotiations between Canada and the United States of Ameri-
ca. The Department of External Affairs invoked subsection
9(1) of the Act (which provides for extensions of the time limit
to provide access or reasons for denial of access). The reasons
were given in the exact words of paragraphs 9(1)(a) and (b).
The requestors complained to the Information Commissioner
that the extensions seemed excessive and unjustified. The ensu
ing investigation revealed that the Minister would soon be
publicly releasing some of the requested studies, but that until
that time the Department would be invoking an extension with
respect to every request for information relating to the free
trade negotiations. Studies not so released would have to be
examined in order to determine which exemptions from disclo
sure applied. The Information Commissioner concluded that no
substantial reasons had been provided and recommended dis
closure of the information requested. No further explanation
for the extensions was forthcoming. When the extension periods
expired, the Commissioner took the position that there had
been a deemed refusal to give access under subsection 10(3),
and brought these applications for judicial review. Shortly
after, most of the information sought by the requestors was
released. Exemptions under the Act were specifically claimed
for any information the Department continued to withhold.
The respondent argued that the Court had no jurisdiction to
review the taking of an extension under subsection 9(1), as the
only remedy provided in the Act for a requestor who objects to
an extension is to complain to the Information Commissioner.
The second argument was based on the use of the present tense
of "refuse" in section 49. Arguably, in that the material
requested had already been disclosed, there was no subsisting
refusal and the Court had lost jurisdiction to review the matter.
Finally, it was submitted that a Court should refuse to enter
tain an application for declaratory relief when the matter has
become academic, unless the declaration would give practical
guidance to the parties for their future relations.
Held, the motions should be dismissed.
The first argument foundered on the admission that an
unauthorized extension may amount to a deemed refusal. If a
refusal to disclose is a prerequisite for the exercise of the
Court's jurisdiction under section 42 of the Act, then the Court
is required, as part of determining the extent of its own
jurisdiction, to decide whether there has been a refusal in each
case. Where the application is based on an allegedly unauthor
ized extension under section 9, that enquiry consists of deter
mining whether the extension was properly taken or whether it
amounted to a deemed refusal. The Court must be able to
review the extension itself and the reasons given therefor. On
the basis of the evidence, it was arguable that the extensions
constituted deemed refusals. It was therefore arguable that the
Court had jurisdiction to review the decision to take the
extensions under section 42.
As to the second argument, jurisdiction was not lost as a
result of the release of the records requested. The Court's
powers under section 49 are not limited to granting an order to
disclose, but include the making of "such other order as the
Court deems appropriate". The respondent's interpretation
would render such other orders unnecessary as there would
always be an existing refusal and the relief sought would
always be disclosure. Mere physical delivery of documents may
not always cure an interference with the right to information.
By operation of subsection 10(3) and sections 42 and 49, the
legislators have ensured that cases of delayed access may also
be reviewed by the Court.
The Access to Information Act has established an on-going
relationship between the Information Commissioner and every
government institution. A declaration as to the requirements
for an authorized extension would assist both parties in deter
mining their proper course under the Act. The language of the
statute was broad enough to embrace the granting of declarato-
ry relief even though it may be academic in that access delayed
is access denied if the information had a timely significance lost
after a certain date.
An order forcing the Department to particularize its reasons
for taking the extensions would not be granted as the Act gives
the Information Commissioner ample means to ascertain them
herself.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111
(Schedule I), ss. 9(1), 10(3), 42, 49.
Federal Court Rules, C.R.C., c. 663, R. 327.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canadian Union of Postal Workers v. Brown, Treasury
Board and Public Service Staff Relations Board (1981),
36 N.R. 583 (F.C.A.).
COUNSEL:
M. L. Phelan, P. J. Wilson and Paul B. Tetro
for applicant.
Barbara A. Mclsaac for respondent.
SOLICITORS:
Osier, Hoskin & Harcourt, Ottawa, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: These applications involve
information related to the negotiations between
Canada and the United States leading to the free
trade agreement. Some important preliminary
questions have been raised which must be resolved
before the applications for review under section 42
can be considered.
By three applications under paragraph 42(1)(a)
of the Access to Information Act [S.C. 1980-81-
82-83, c. 111 (Schedule I)] filed May 9, 1986, the
applicant seeks a review of deemed refusals to
disclose certain information requested under the
Act. Most of the material requested was subse
quently released by the respondent Department.
On November 26, 1986 the respondent brought
three preliminary applications for orders dismiss
ing the section 42 applications as concerning an
issue which is academic and of no practical conse
quence. I heard argument on the respondent's
applications on January 28, 1987 but reserved
judgment pending hearing of the main applica
tions. On September 25, 1987 the applicant
brought three further preliminary applications
under the Federal Court Rules [C.R.C., c. 663],
seeking a trial of an issue under Rule 327 or
similar alternative relief. Those matters came on
for hearing before me at Ottawa, Ontario on
December 2, 1987. Oral judgment was rendered
on March 9, 1988.
These reasons will deal with both sets of prelim
inary matters, but not with the applications for
review which have not yet been heard. It was
understood by the parties that the applications to
dismiss should be considered together with the
applications for trial of an issue.
The facts involved in the three files are virtually
identical, varying only as to dates. In late 1985 the
requestors asked the Department of External
Affairs for documents relating to the upcoming
free trade negotiations with the United States. As
the particulars of the negotiations were not, at that
time, public knowledge, it can be assumed that one
of the purposes of these requests was to discover
more about them. In each case, on the last day of
the 30-day period in which the Department was
required to respond, the requestor was informed
that an extension under subsection 9(1) of the Act
would be invoked. One of the extensions was for 60
days, the rest were for 120 days.
9. (1) The head of a government institution may extend the
time limit set out in section 7 or subsection 8(1) in respect of a
request under this Act for a reasonable period of time, having
regard to the circumstances, if
(a) the request is for a large number of records or necessi
tates a search through a large number of records and meet
ing the original time limit would' unreasonably interfere with
the operations of the government institution,
(b) consultations are necessary to comply with the request
that cannot reasonably be completed within the original time
limit, or
(c) notice of the request is given pursuant to subsection
28(1)
by giving notice of the extension and, in the circumstances set
out in paragraph (a) or (b), the length of the extension, to the
person who made the request is received, which notice shall
contain a statement that the person has a right to make a
complaint to the Information Commissioner about the
extension.
Each requestor received a letter from the
Department announcing the extension and citing
as reasons the exact words of paragraphs 9(1)(a)
and (b). The letters read as follows:
I wish to inform you that an extension of up to 120 days
beyond the 30-day statutory limit is required because the
Request necessitates a search through a large number of
records and meeting the original time limit would unreasonably
interfere with the operations of the Department, and consulta
tions with other government institutions are necessary to
comply with the Request that cannot reasonably be completed
within the original time limit. This extension of the time limit is
permitted under Section 9(1)(a) and (b) of the Access to
Information Act.
The reason given for the 60-day extension on Mr.
Cohn's first request is slightly more specific:
I wish to advise you that we are consulting other government
institutions concerning the releasability of certain records.
Accordingly, as permitted under Section 9(1)(b) of the Act, I
am informing you of the necessity for a 60-day extension
beyond the 30-day statutory time limit to complete the process
ing of your Access Request. Once this consultation has been
completed, I will advise you of the outcome.
All of the requestors filed complaints with the
Information Commissioner in early 1986. They
complained that the 120-day extensions seemed
excessive and unjustified as the information must
be readily available to department officials. Mr.
Cohn also complained that the deadline on his first
request, which had been extended 60 days, had
now passed.
The Information Commissioner's designated
investigator, James Gordon Long, describes in his
affidavit the steps he took with respect to these
complaints:
6. On January 29, 1986, I met with the Access Co-ordinator at
his offices in the Department of External Affairs to investigate
the complaints. At that meeting, the Access Co-ordinator told
me that, as of January 29, 1986, the Department had received
ten access requests for records related to free trade negotiations
with the United States. The Access Co-ordinator informed me
during the meeting that the Department had invoked a 120 day
extension of time for each of the ten requests.
7. The Access Co-ordinator also informed me during our meet
ing that a decision had been made by officials in the Depart
ment to invoke an extension for all access requests received by
the Department of External Affairs for records relating to the
free trade negotiations with the United States.
8. The purpose of our January 29 meeting was to determine
from the Access Co-ordinator why the Department invoked the
said 120 day extension of time. The Access Co-ordinator
informed me at this meeting that it was planned that the
Minister of External Affairs would release some of the request
ed studies related to the free trade talks in a future public
announcement. The Access Co-ordinator indicated that the
studies and documents which were requested under the Access
to Information Act but not publicly released by the Minister
would have to be examined and that a decision would have to
be made as to which exemptions from disclosure or exclusions
in the Access to Information Act applied.
9. At our meeting on January 29, 1986, the Access Co-ordina-
tor proposed to arrange a meeting with Program Division
Officers in the Department who were responsible for the
requested records to explain the reason for the extensions of
time. I agreed to attend such a meeting.
10. On February 6, 1986, I was advised by the Access Co
ordinator that the responsible officials in the office of the Task
Force Co-ordinator on Free Trade did not have any further
information and did not see the need to meet with me.
11. On February 21, 1986, 1 met again with the Access
Co-ordinator and officials from his office. At that meeting, I
was advised by them that an officer on the staff of the Task
Force Co-ordinator on Free Trade had beeen assigned that
week to review each access request for records relating to the
free trade negotiations with the United States. I was advised
that recommendations concerning each request had now been
made and that the requests were to be reviewed by legal
advisors in the Department and by officials in the Privy Council
Office.
12. 1 telephoned the Office of the Access Co-ordinator in the
Department on March 10, 1986 to inquire about the status of
the access requests. I was advised by an official in the office
that no response had yet been made to the Complainant's
request.
Following the investigation, an exchange of cor
respondence took place between the Information
Commissioner and the Department of External
Affairs. The Commissioner wrote to the Minister
on April 2, 1986 describing the three requests, the
responses received and the complaints filed. She
indicated that no substantial reasons had been
provided by the Department for the 120-day
extensions it had invoked:
The requestors allege that there were few documents and as
they were clearly identified retrieval of the requested docu
ments should be easy. Our investigation confirms this and
attempts at finding explanations for the long delay were not
successful. Indeed a meeting planned to give those explanations
was cancelled by External Affairs.
During the course of the investigation of these complaints, your
officials were asked to substantiate the need for the extensions
and the only explanations offered were a reference to section 9
and that directions had been issued to the coordinator to invoke
a 120 day extension to all requests on the free trade issue. It
appeared that the coordinator had not been briefed or was not
authorized to provide our investigator with substantiation.
Having received no evidence to justify the extensions, I have
tentatively concluded that none exists and in accordance with
Section 37(1) of the Access to Information Act, I therefore
recommend:
a) that the records requested be disclosed to the complainant
and
b) that you give me notice no later than April 8, 1986 of any
action taken or proposed to be taken to implement this
recommendation or provide reasons why no such action has
been or is proposed to be taken.
The Department's reply, dated April 7, 1986,
pointed out that it was still well within the dead
lines set by the 120-day extensions. The letter
concluded as follows:
There appears to be some confusion concerning your state
ment that you have received no evidence to justify the exten
sions. I am told that the departmental Co-ordinator gave a
detailed explanation in his office to your investigator on Janu-
ary 29. A further meeting was not held because it was agreed
that there was nothing to add to the explanation already given.
Nevertheless, the Co-ordinator and other departmental officers
have been, and are, available to discuss the situation at any
time.
The Commissioner wrote again on April 14
expressing her dissatisfaction with this answer:
As you have pointed out, the extension deadlines have not yet
expired, but my concern remains whether the time extensions of
120 days, which formed the basis of the complaints, were
justified. Based upon the explanations provided to our inves
tigator I do not have sufficient facts on which to make such a
judgement [sic], and your letter merely repeated that an expla
nation was provided to the investigator on January 29, 1986.
My understanding is that the explanations provided at that
time were along the lines of those provided in your letter of
April 7, 1986 on your file A-180, which indicated that little
action was taken on processing the requests pending the estab
lishment of the Trade Negotiations Office.
In order to evaluate the validity of the time extensions involved,
details are required in regard to each case of the exact volume
of records involved, what action was taken from the time the
access request was received, when this action was taken, what
further action remains to be taken, what consultations have
been carried out, when they were carried out, what consulta
tions are planned, and how providing these records sooner
would unreasonably interfere with the operation of the
department.
As stated in my letter of April 2, 1986, as we have not received
evidence to justify the extensions I am left with little choice but
to conclude that none exists. I therefore request that I be
provided with the details requested above by no later than April
18, 1986.
The Department's final response was dated
April 18, 1986. It stated, in part:
It seems to me, at this stage, that the important question is to
complete the processing of these requests as rapidly as possible,
and certainly before the deadlines. We are pressing ahead with
this but, despite every effort, the work is not yet completed.
In light of this, I think the 120-day extensions we took for
these requests were realistic. A detailed explanation was given
to your investigator on January 29 and February 21 at meet
ings in our Co-ordinator's office.
In essence, our problem has involved the time required for
the establishment by the Government of the machinery for
trade negotiations with the United States. Within this context,
there was a need for consultation with Ministers and with a
number of Departments concerning the releasability of the
requested documents. This process in now nearing completion.
No further explanation for the extensions was
ever given by the respondent Department. The
Commissioner reported to the complainants by
letter that her investigation had found no accept
able evidence that would justify the need for an
extension and that she was recording the com
plaints as well-founded. The letters, sent at the end
of April and beginning of May, also indicated that
the extension periods, justified or not, had now
expired and that there had therefore been a
deemed refusal to give access under, subsection
10(3). The Commissioner advised the complai
nants of their right to judicial review under the
Act and offered to bring an application on their
behalf. The complainants all consented to this
proposal, and the three applications under section
42 were filed on May 9, May 14 and May 26,
1986.
On May 21, 1986 the free trade negotiations
began in Ottawa. On the same day most of the
information sought by these requestors was
released. Further documents were disclosed on
May 29 and 30. Exemptions under the Act were
specifically claimed for any information the
Department continued to withhold.
The applications filed under section 42 of the
Act were for a review of the respondent's "deemed
refusals", pursuant to subsection 10(3), to disclose
the information requested. Subsections 10(3) and
42(1) read:
10.
(3) Where the head of a government institution fails to give
access to, a record requested under this Act or a part thereof
within the time limits set out in this Act, the head of the
institution shall, for the purposes of this Act, be deemed to have
refused to give access.
42. (1) The Information Commissioner may
(a) apply to the Court, within the time limits prescribed by
section 41, for a review of any refusal to disclose a record
requested under this Act or a part thereof in respect of which
an investigation has been carried out by the Information
Commissioner, if the Commissioner has the consent of the
person who requested access to the record; [Emphasis
added.]
By the wording of section 42, an application for
review must be based on a refusal to disclose. The
applicant submits that these requests were subject
to two deemed refusals. First, she claims that the
extensions invoked under subsection 9(1) were not
authorized by that section. If so, the head of the
institution was exceeding a time limit set out in the
Act and should be deemed to have refused to
disclose under subsection 10(3). The respondent
concedes, at paragraph 9 of its Memorandum of
Points of : Argument, that an unauthorized exten
sion under subsection 9(1) can amount to a
deemed refusal:
9. With respect to the issue of the reasonableness of the
extension of time, or the issue of whether or not the criteria set
out in paragraphs 9(1)(a) or (b) of the Act are met, the
Respondent concedes that if an extension is unreasonable or if
the criteria for extension are not met, the extension is not
authorized by the Act, and there will be a deemed refusal.
Second, there was clearly a deemed refusal
when the extended deadlines were exceeded by the
Department. This is admitted by the respondent at
paragraph 8 of its Memorandum of Points of
Argument:
8. With respect to item (i), it has been conceded that there was
unquestionably a deemed refusal in each case when the
Respondent failed to reply to the request within the extended
time period.
Given these concessions, the applicant asks me
to review the taking of the extensions under section
42. It is argued that unless the Court has this
power, the extension power will be invoked repeat
edly by departments seeking to delay disclosure of
information until after a critical date. Such a
proceeding would frustrate the right to timely
disclosure. In addition, according to the applicant,
it should make no difference to the Court's power
of review that the requested documents have
already been released in this case. If the subse
quent release of requested documents is permitted
to cure an unjustified extension or delay, no
remedy will remain for requestors who are denied
access until the passage of time has rendered
worthless the information sought. Finally, the
Information Commissioner urges that the Court's
powers under section 49 are quite broad enough to
encompass the relief she seeks.
The respondent asks me to dismiss the section
42 applications for three basic reasons:
1) The Court has no jurisdiction to review the
taking of an extension under subsection 9(1) as the
only remedy provided in the Act for a requestor
who objects to an extension is to complain to the
Information Commissioner. That Officer has suffi
cient powers to properly address such a complaint
and to bring any abuses of the extension power to
the attention of Parliament. There is no need to
impute to the legislators an intention that the
Court also be empowered to review a decision
under section 9. Such a review is not mandated by
the plain meaning of the statute.
2) Since the material requested has already been
released, there is no longer any refusal to disclose.
Therefore, the Court has no jurisdiction whatever
in this case as the power to review is dependent on
a subsisting refusal.
3) If the Court does have jurisdiction to hear
these applications, the relief claimed is unavail
able. The powers under the Act do not extend to
the granting of a declaration, which is the only
remedy left to the applicant. Even if they do, no
useful purpose could be served by granting such an
order in this case.
The respondent's first contention appears to
founder on its own admission that an unauthorized
extension may amount to a deemed refusal. If a
refusal to disclose is a prerequisite for this Court
to exercise its jurisdiction under section 42 of the
Act, then the Court is required, as part of deter
mining the extent of its own jurisdiction, to decide
whether there has been a refusal in each case.
Where the application is based on an allegedly
unauthorized extension under section 9, that
enquiry consists of determining whether the exten
sion was properly taken or whether it amounts to a
deemed refusal. To perform that task, it is inesca
pable that the Court must be able to review the
extension itself and the reasons given therefor.
On the basis of the evidence already contained
in the record, much of which is quoted above, it is
at least arguable that the extensions in this case
constituted deemed refusals. It is therefore
arguable that this Court has jurisdiction to review
the decision to take the extensions under section
42. No more determinative finding on this point is
needed in order to dispose of the motions to dis
miss. A full exploration of extensions and their
reasons must wait until the applications for review
are heard.
The respondent's second and major argument is
that, because the material requested has been dis
closed, the Court no longer has jurisdiction to
review either form of deemed refusal, as there is
no longer any refusal to review. It is submitted
that disclosure cures any previous refusals and
removes the Court's jurisdiction under sections 42
and 49. Section 49 reads:
49. Where the head of a government institution refuses to
disclose a record requested under this Act or a part thereof on
the basis of a provision of this Act not referred to in section 50,
the Court shall, if it determines that the head of the institution
is not authorized to refuse to disclose the record or part thereof,
order the head of the institution to disclose the record or part
thereof, subject to such conditions as the Court deems appro
priate, to the person who requested access to the record, or shall
make such other order as the Court deems appropriate.
[Emphasis added.]
The respondent submits that since the words
"refuses" and "is not authorized to refuse" are
used in section 49 in the present tense, the Court's
jurisdiction to review is dependent on an outstand
ing refusal to disclose.
I do not draw any such implication from the use
of these words. I would agree that there has to
have been a refusal of some kind for the Court's
jurisdiction to arise (including, of course, a
deemed refusal). However, I do not believe that
jurisdiction is lost by the release of the records
requested. The Court's powers as described in
section 49 are not limited to granting an order to
disclose. They expressly include the making of
"such other order as the Court deems appropri
ate". If the interpretation proposed by the
respondent were the correct one, it is hard to
imagine cases where any other order would be
necessary. There would always be an existing
refusal and the relief sought would always be
disclosure. It appears to me that Parliament has
contemplated that in a statute which establishes a
right to information there will be occasions on
which mere physical delivery of documents will not
cure an infringement of that right. By operation of
subsection 10(3) and sections 42 and 49 the legis
lators have ensured that cases of delayed access
may also, in some circumstances, be reviewed by
the Court. I do not find that release of the docu
ments has removed the Court's jurisdiction to
entertain these applications.
Finally, the respondent submits that, generally
speaking, a Court will refuse to entertain an
application for declaratory relief when the matter
has become academic, unless the declaration
would serve a useful purpose by giving practical
guidance to the parties in respect of future rela
tions, or situations which might subsequently arise.
It cites in support of this position the case of
Canadian Union of Postal Workers v. Brown,
Treasury Board and Public Service Staff Rela
tions Board (1981), 36 N.R. 583 (F.C.A.). In that
case certain questions concerning the powers of the
PSSRB, which arose out of a postal strike, had been
resolved by subsequent legislation settling the
strike. Nevertheless, the Federal Court of Appeal
decided [at page 586] that the action for a decla
ration should proceed because, despite its
"theoretical" nature, it was
... an important matter capable of affecting the future rela
tions of the parties, and one which probably could only be
decided by the court in the context of proceedings lacking any
immediate practical significance.
Those words seem to me to exactly describe this
case. By the terms of the Access to Information
Act there is an on-going relationship between the
Information Commissioner and every government
institution. That is evidenced by the presence in
most departments of an Access to Information
Co-ordinator whose job is to facilitate requests for
information to that department and to handle
inquiries from the Commissioner's office. The two
parties to this application have therefore a real
interest in obtaining guidelines to assist their
future relations. Any taking of an extension may
be the subject of a complaint to the Commissioner
and a subsequent investigation. A declaration as to
the requirements for an authorized extension
would assist both parties in determining their
proper course under the Act.
Indeed, this question is more likely to arise in
situations where the order sought will lack any
more practical consequence. The concern here is
with delay, not with an outright refusal to release
information. It is not disputed that in some cases
access delayed is access denied, particularly where
information has a timely significance which will be
lost after a certain date. If "practical conse
quence" in this context is deemed to mean the
ability of the Court to order release of documents
currently withheld, then it is true that this question
will rarely arise in proceedings leading to that
relief. The most common conditions for a com
plaint of this kind is where an extension has been
taken so that release may lawfully be postponed
until after the crucial date. In such circumstances,
by the time the matter comes on for hearing before
the Court, the documents will almost always have
been released.
In the result, therefore, while the order which
results from these applications may very well be
declaratory in nature, I am not prepared to find, at
this preliminary stage, that the language of
sections 42 and 49 excludes that possibility.
Indeed, the final words of section 49 are quite
broad enough to embrace this sort of order and I
find nothing in the statute to support the contrary
intention. Upon the particular facts of this case,
such an order may be entirely appropriate.
I turn now to deal with the applicant's prelim
inary applications. Having found that the review
process under section 49 should proceed, and is
broad enough to encompass the order sought, it
would be inappropriate for me to order the trial of
an issue. I am aware that the notices of motion list,
in addition, a number of alternative forms of relief.
These include requiring the respondent to file a
statement of defence, ordering the respondent to
produce witnesses for cross-examination, and
"such other order as may be just to require the
respondent to disclose its reasons for invoking and
its use of the 120-day extension of time to
respond". The Information Commissioner clearly
desires a Court order forcing the Department to
particularize its reasons for taking the extensions.
I am not prepared to make such an order. The
Information Commissioner has no need of the
Court's assistance in order to establish the reasons
behind the decision to extend time limits in this
case. That is her job, mandated by statute, and she
has been given ample means to carry it out.
The respondent, in turn, is free to decide wheth
er and to what extent he wishes to counter the
applicant's evidence—always given the risk that,
unless challenged, the applicant's case will suc
ceed. The applicant argues that the Court cannot
undertake a proper review of the deemed refusals
without all the available evidence as to why the
extensions were taken. I do not find it necessary
for a review under section 42 to deprive the
respondent of the right to make his case as he sees
fit. The normal powers and procedures provided by
the Access to Information Act are quite sufficient
for the proper conduct of a review of these
matters.
That said, however, I will repeat what I men
tioned in my oral reasons: it would greatly assist
the resolution of this matter on the merits if more
complete reasons for the extensions were provided.
As a result, while I am not prepared to grant the
applicant's preliminary motions, I would urge
respondent's counsel to seriously consider filing
further affidavit evidence.
For the above reasons, an order will go dismiss
ing both sets of preliminary applications. Hearing
of the original applications for a review under
section 42 may proceed in the usual manner. Costs
in the cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.