Decision under section 31, 2022 OIC 11
The Information Commissioner rejected a complaint as it did not meet the requirements of section 31 of the Access to Information Act.
Section 31 specifies, among other things, that: “If the complaint relates to a request by a person for access to a record, it shall be made within sixty days after the day on which the person receives a notice of a refusal under section 7, is given access to all or part of the record or, in any other case, becomes aware that grounds for the complaint exist.”
The institution provided the Office of the Information Commissioner (OIC) with documentation indicating that the complaint was made more than seven (7) weeks after the expiration of the sixty-day time-period set out in section 31. This documentation was forwarded to the complainant, along with a request that they provide representations in support of the validity of their complaint.
In their representations, the complainant pointed out that the covering letter that they had received from the institution in response to their request was undated, while the covering letter provided by the Institution to the OIC was actually dated. The complainant did not, however, contest the institution’s claim that a response to their request was provided on the date in question, nor did they take the position that their complaint was made within sixty days of their receipt of the institution’s response. Instead, they asked that the Information Commissioner exercise her “residual discretion” to extend the time period within which they could complain about the Institution’s response, explaining that they had intended to initiate their complaint within sixty days, but that the Institution’s response to their request was “misplaced” after it was received.
Having considered the complainant’s representations, as well as the documentary evidence that was provided to the OIC, the Information Commissioner concluded that the complaint did not meet the requirements of section 31. The Information Commissioner does not have the authority to receive and accept complaints submitted after the expiration of a statutory timeframe. In Statham v. Canadian Broadcasting Corporation, 2010 FCA 315, the Federal Court of Appeal made clear that no provision within the Act confers power on the Information Commissioner to extend the time frames set out in the Act (paragraph 46).
Accordingly, the Information Commissioner could not accept the complaint as it was submitted outside the legislative timeframe set out in section 31.