Blades v Alberta (Information and Privacy Commissioner), 2021 ABQB 725

Court of Queen’s Bench of Alberta Citation: Blades v Alberta (Information and Privacy Commissioner), 2021 ABQB 725 Date: 20210910 Docket: 2101 05431 Registry: Calgary Between: E Macleay Blades, Rocking P Ranch Ltd., John Smith and Plateau Cattle Co. Ltd Applicants - and - Information and Privacy Commissioner, Her Majesty the Queen In Right of Alberta and the Minister of Energy for the Province of Alberta Respondents _______________________________________________________ Reasons for Decision of the Honourable Madam Justice Janice R. Ashcroft _______________________________________________________ Table of Contents Introduction . 2 Issues . 2 Relevant Legislation . 2 Background . 4

Analysis . 6 1. Was the Request for Extension Conducted in a Manner Procedurally Unfair to the Applicants? 6 2. Was the Decision Unreasonable? . 9 The Submissions of Alberta Energy to the Commissioner Supporting its Request for an Extension 10 The Decision of the Commissioner 11 Did the Decision reflect Internally Coherent Reasoning?

Was the Decision Justified in Light of the Legal and Factual Constraints that Bear on the Decision? . 12 Conclusion . 16 Introduction [ 1 ] On July 3, 2020, the Applicants requested disclosure of records from Alberta Energy (the “FOIP Request”) related to the government’s decision to rescind a long-standing coal mining policy. This policy, the “1976 Coal Mining Policy”, had previously restricted coal mining in the area in which the Applicants live and ranch.

The 1976 Coal Mining Policy was eventually reinstated in February, 2021. [ 2 ] Alberta Energy granted itself a series of extensions to allow it more time to respond to the FOIP Request. [ 3 ] On January 11, 2021, Alberta Energy advised the Applicants by way of letter that the delegated Information and Privacy Commissioner (the “Commissioner”) had granted an additional 270 days for them to respond to the FOIP Request. [ 4 ] The Applicants seek judicial review of the decision of the Commissioner to permit the extension (the “Decision”), arguing that the Decision breached procedural fairness and was, in any event, unreasonable.

Issues [ 5 ] The issues before me are as follows: 1. Was the request for extension conducted in a manner procedurally unfair to the Applicants? 2. Was the Decision unreasonable? Relevant Legislation [ 6 ] The Decision was made under the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (the “ FOIP Act ” ). [ 7 ]

Section 2(

a) states that one purpose of the FOIP Act is: ...to allow any person a right of access to the records in the custody or under the control of a public body subject to limited and specific exceptions as set out in this Act. [ 8 ] Section 6(1) of the FOIP Act further affirms this purpose and states that an “applicant has a right of access to any record in the custody or under the control of a public body”, subject to exemptions in the Act .

Section 7 details how an applicant makes a request for information. The request to the public body is to be made in writing with sufficient detail.

Section 11 imposes a response timeline for the public body to respond to any requests. The timeline for a response may be extended under s. 14. [ 9 ] Upon the passing of Ministerial Order 009/2020 on April 9, 2020, s. 11 read: 11(1) The head of a public body must make reasonable efforts considering the demands of the pandemic COVID-19 to respond to a request not later than 90 days after receiving it unless: (

a) that time limit is extended under

section 14, or (

b) the request has been transferred under

section 15 to another public body.

(2) The failure of the head to respond to a request within the 90-day period or any extended period is to be treated as a decision to refuse access to the record. [ 10 ] Upon the passing of Ministerial Order 009/2020, s. 14 read:

(1) The head of a public body may extend the time for responding to a request for up to 30 days or, with the Commissioner’s permission, for a longer period if

(

a) the applicant does not give enough detail to enable the public body to identify a requested record, (

b) a large number of records are requested or must be searched and responding within the period set out in

section 11 would unreasonably interfere with the operations of the public body, (

c) more time is needed to consult with a third party or another public body before deciding whether to grant access to a record, or (

d) a third party asks for a review under section 65(2) or 77(3).

(1.1) The head of a public body may extend the time for responding to a request for up to 60 days or, with the Commissioner’s permission, for longer period if, in the opinion of the head of a public body, the pandemic COVID-19 unreasonably interferes with the operations of the public body. …

(4) If the time for responding to a request is extended under subsection (1), (1.1), (2) or (3), the head of the public body must tell the applicant (

a) the reason for the extension, (

b) when a response can be expected, and (

c) that the applicant may make a complaint to the Commissioner or to an adjudicator, as the case may be, about the extension. [ 11 ] Sections 65 of the FOIP Act is also relevant. Specifically, s. 65(1) states: A person who makes a request to the head of a public body for access to a record or for correction of personal information may ask the Commissioner to review any decision, act or failure to act of the head that relates to the request. [ 12 ] The FOIP Act is mainly silent regarding any opportunities for representations to the Commissioner by applicants.

Section 69 is the only provision in the legislation where an opportunity to provide representations to the Commissioner by persons such as the applicants is required: 69(1) Unless

section 70 applies, if a matter is not settled under

section 68, the Commissioner must conduct an inquiry and may decide all questions of fact and law arising in the course of the inquiry.

(2) An inquiry under subsection (1) may be conducted in private.

(3) The person who asked for the review, the head of the public body concerned and any other person given a copy of the request for review must be given an opportunity to make representations to the Commissioner during the inquiry, but no one is entitled to be present during, to have access to or to comment on representations made to the Commissioner by another person. ……….

Background [ 13 ] Alberta Energy made use of the recent amendments made by way of Ministerial Order to extend the initial response timeline to October 2020. [ 14 ] On August 14, 2020, Alberta Energy, pursuant to s. 14(1.1), granted itself a further extension of 60 days, which expired on December 18, 2020.

On December 9, 2020, it extended the timeline a further 30 days pursuant to s.14(1)(b); this extension terminated on January 18, 2021. [1] [ 15 ] On December 18, 2020, Alberta Energy requested, under s. 14(1), that the Commissioner grant a further extension of 270 days to respond (the “Application”). [ 16 ] On January 6, 2021, the Commissioner granted a further extension, under ss. 14(1)(

b) and (c), of 270 days or nine months (the “Decision”). [ 17 ] On January 11, 2021, Alberta Energy notified the Applicants in writing that the further 270 day extension had been granted by the Commissioner. Alberta Energy’s letter to the Applicants said the following: […] In the letter dated December 9, 2020, we advised you that the response due date for your request was extended to January 18, 2021. An additional extension of 270 days has been granted by the Information and Privacy Commissioner under section 14(1) (

b) of the FOIP Act [large volume of records]. We will make every reasonable effort to respond to your request by October 14, 2021. […]

[18] On March 1, 2021, the Applicants filed a request for review with the Office of the Information and Privacy Commissioner ofAlberta (the “OIPC’). On May 26, 2021, the Commissioner found that she was functus and did not have jurisdiction or authority toreview the Decision.[2] [19] The Applicants filed a judicial review of the Decision. [20] I ruled on two preliminary issues at the application.

With respect to tribunal standing, I provided reasons at the hearing tosupport my decision to allow the Commissioner standing with respect to very limited issues. [21] The Applicants also argued that they needed affidavit evidence to show that if they had been afforded proper proceduralfairness and an opportunity to provide submissions to the Commissioner prior to the extension being granted, it would be obvious thatthe Decision was unreasonable.

The affidavits contained detailed information about the 1976 Coal Policy, its rescission, the potentialimpact of the rescission on the Applicants, the judicial review involving the rescission, the public awareness campaign, and theformation of a committee appointed by the government to engage with the public concerning coal mine development (the “Coal PolicyCommittee.”) Except for brief references in the material of Alberta Energy, to the then ongoing judicial review, none of this informationwas before the Commissioner when she made her Decision. [22] Affidavits may be allowed when there are breaches of natural justice that are not apparent on the face of the record: AlbertaLiquor and Gaming Commission at para 41.

However, in this case the alleged breach is obvious from the record.

It is clear, to all, thatthe Applicants were not provided with an opportunity to provide submissions regarding the Application before the Commissioner.Further, if I conclude that this lack of opportunity to be heard is a breach of procedural fairness, it is not appropriate to further speculateas to how the administrative decision maker could have decided: Edmonton Police Association v Edmonton (City of), 2007 ABCA 184at para 9 citing Cardinal v Director of Kent Institution, (SCC), [1985] 2 SCR 643. “[T]he denial of a right to a fairhearing must always render a decision invalid”: Cardinal at 660-1. [23] The admission of the affidavits risks challenging the Decision using new information that was not before the Commissioner,and does not further the Applicant’s arguments.

I decline to admit the affidavits. Analysis 1. Was the Request for Extension Conducted in a Manner Procedurally Unfair tothe Applicants? [24] To the extent that the issues in this judicial review involve procedural fairness, the Decision should be reviewed to ensure thatthe Applicants received the standard of procedural fairness they were entitled to in law: Baron Real Estate Investments Ltd. vEdmonton (City), 2021 ABCA 64 at para 17. [25] Procedural fairness is at the core of administrative law.

It is owed, to varying degrees, by every “public authority making anadministrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual”: Cardinalat 653.

The decision of the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), 1999 SCC 699 isthe leading case when determining whether the procedures of an administrative decision maker accord with its duty of proceduralfairness. [26] Administrative decisions that attract the highest level of procedural fairness usually require that all parties have theopportunity to make arguments before the decision maker, and to present their case fully. A mid-level of procedural fairness may requireonly that parties be allowed to make written submissions.

At the lowest end of the spectrum, the right to be heard may not even requiresubmissions by all parties affected: Baker at paras 33-34. [27] The Applicants submit that the Baker factors do not come into play as the Applicants were not afforded any proceduralfairness.

The Applicants state that they were neither given notice of the Applicants’ request for extension nor provided any opportunityto respond and present argument before the decision maker. [28] The Applicants also submit, that to the extent they could be said to have been afforded minimal procedural fairness in thatAlberta Energy communicated to them the Decision, Alberta Energy did not communicate all of the information required by statute.

TheApplicants submit that the written communication contained only some, but not all, of the reasons the extension was granted, andaccordingly, procedural fairness was breached. [29] The Commissioner indicates, given that extensions can only be granted on limited grounds, that she interprets s. 14 as aninternal, expedited process between the public body and the Commissioner. The Commissioner advises that any additional steps to seeksubmission from applicants will encumber the process and inevitably impact timely disclosure to records.

She points out that s. 69(3) isthe only provision of the FOIP Act that explicitly states that the Commissioner must allow a party to make representations; this occursonly at the inquiry stage.

The Commissioner submits that the lack of any similar legislated requirement in the context of s.14 extensionrequests, is purposeful; legislators have specifically considered where in the legislative scheme it is appropriate to provide higher levelsof procedural fairness. [30] As reaffirmed in Vavilov at para 77, where an administrative context triggers a duty of procedural fairness, “the specificprocedural requirements that the duty imposes are determined with reference to all of the circumstances”: citing Baker at para 21.

Thelevel of procedural fairness accorded to the Applicants regarding the Decision must still be informed by the factors set out in Baker:

(1) The nature of the decision being made and the process followed in making it

[ 31 ] The nature of the decision was one to extend the timeline to respond to the FOIP Request. A decision to extend the time limit for a public body’s response should not generally be viewed as a decision to refuse an applicant’s access to the record(

s) requested. While a right to access may be postponed, an extension neither erodes nor amends the substantive content of the records to be disclosed. [ 32 ] The process the Commissioner followed complied with the procedure outlined in s. 14 of the FOIP Act , as well as with the OIPC Practice Note: Request for Time Extension Under

Section 14. The codified requirements in the statute, as to how the Applicants were to learn of any extension by the Commissioner, are quite cursory. However, Alberta Energy advised the Applicants of the Decision, the right to review, and that the extension was approved under s. 14(1) (b), though it did not advise that the Commissioner had also approved the extension under s. 14(1) (c). [ 33 ] An assessment of the nature of the decision and the process contemplates a lower degree of procedural fairness.

(2) The nature of the statutory scheme [ 34 ] The FOIP Act is provincial legislation which outlines a comprehensive statutory scheme for accessing records held by public bodies. There are numerous preliminary processes prior to a FOIP request proceeding to a full inquiry.

Section 14 specifically outlines the process for a public body to allow itself an extension, and request permission from the Commissioner to extend for specific, defined reasons. A review process is set out for applicants to review extensions which the public body grants itself. [ 35 ] The Act is silent with respect to whether the Commissioner must seek submissions from the applicants as to whether or not the extension should be granted. In contrast, the statutory scheme provides that applicants “must be given” the opportunity to make representations in inquiries, pursuant to s. 69(3).

Inquiries involve a more formal process where the Commissioner decides all issues of fact and law. The inclusion of the right to make representations at the inquiry level shows legislative intent to require the Commissioner to hear from the applicants at one stage of the process but not at other stages. However, the mandatory wording in s. 69(3), “must be given”, also supports legislative intent that the Commissioner may not be foreclosed from seeking submissions from the applicants at other steps in the process.

Notably, though, even at the inquiry level, participatory rights are limited in that the statute specifically states that a party does not have an entitlement to be present during, have access to, or comment on representations, made by another party. [ 36 ] From a review of the general purposes of the statutory scheme as well as the above specific provisions, I infer that the legislature has turned its mind to when submissions are required, and when they are not required.

Given that the legislation allows extensions only on specific, defined grounds, the legislature is presumed to have made the legislative choice to prioritize speed and efficiency at preliminary stages of the FOIP process and not require the Commissioner to seek submissions regarding any s. 14 extension requests. In contrast, greater rights are granted to applicants at the inquiry stage where more substantive rights, such as a denial to records, are affected. This factor supports a lower degree of procedural fairness.

(3) The importance of the decision to the individual(

s) affected [ 37 ] The Applicants have a presumptive right of access without having to justify the need for the records. Delay in receiving the records, at some point, does impact the substantive rights of applicants. However, on these facts, I do not interpret the s. 14 extension as denying the Applicants a substantive right.

The records elicited through the FOIP Request may have been relevant to both the then ongoing judicial review centered around the rescission of the 1976 Coal Mining Policy, and later, the submissions of the Applicants before the Coal Policy Committee, which deadline was apparently September 15, 2021. However, I cannot interpret the extension, even within this more time sensitive context, as equivalent to the denial of the records, or denial of a substantive right.

(4) The legitimate expectations of the person(

s) challenging the decision [ 38 ] Applicants are entitled to a legitimate expectation that the processes outlined in the FOIP Act will be followed including that extensions are granted only as specifically allowed under the legislation. The procedural fairness engaged by this factor is also on the lower end of the spectrum.

(5) The choices of procedure made by the administrative tribunal itself [ 39 ] The process under the FOIP Act for public bodies to request and receive extensions allows the Commissioner to hear extension applications by public bodies in an expedited manner and, where appropriate, grant their requests. The process, however, does not require the Commissioner to seek submissions regarding whether the extension should be granted. Deference is owed to the practices and protocols of an administrative tribunal or body unless these practices are obviously unfair having regard to the particular circumstances.

The choice by the Commissioner to not seek submissions calls for a lower degree of procedural fairness. [ 40 ] I do have some sympathy for the Applicants’ position regarding procedural fairness. The extension process allows representations only from the public body seeking the extension. The legislation does not require that the reasons for the Commissioner’s decision be provided to the applicants. They are entitled only to a second-hand

summary of the decision from the head of the public body. As well, unlike a situation where the public body extends the time internally, there is no reconsideration process that would allow the Applicants to ask the Commissioner to reconsider her decision regarding the extension. [ 41 ] However, I find that when assessing the Baker factors within this legislative scheme and on these facts, a s. 14 extension, as permitted by the Commissioner, is largely an interim decision that impacts process more than a substantive right to records.

If the extension is so long that the substantive right of access to records is infringed, this can be addressed under the analysis of reasonableness. [ 42 ] The Applicants also submit, however, that the head of the public body did not comply with even the very limited procedural fairness it should have been accorded, as the Decision which was communicated to the Applicants, contained errors. When an extension is granted, s. 14(4)(

a) requires that the head of the public body advise the applicant the reason for the extension. In this case, the extension was granted for two reasons: the volume of records requested and the need to consult with third parties. These are found at ss. 14(1) (

b) and (c), respectively. In its letter to the Applicants informing them of the Decision, Alberta Energy only referred to s. 14(1) (

b) as the reason for the extension.

[ 43 ] The Applicants did not specifically judicially review the communication by the head of the public body relaying the decision extension. While proper communication of the Decision may be considered implicit in the judicial review of the Decision itself, the contrary argument is that the Commissioner cannot be held responsible for the lack of statutory compliance by the head of the public body. [ 44 ] In the circumstances of this judicial review, the information communicated by Alberta Energy to the Applicants was substantially compliant with the legislation.

The failure of Alberta Energy to properly communicate the full reasons to the Applicants may be relevant to costs; however, this failure is insufficient to quash the Decision of the Commissioner. [ 45 ] In sum, I find that the Decision was not made in a manner that breached the procedural fairness owed to the Applicants. 2. Was the Decision Unreasonable? [ 46 ] The standard of review regarding the merits of the Decision is presumed to be reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 .

Reasonableness is concerned with both process and outcome and the decision must be transparent, justifiable and intelligible: Vavilov at para 86 . Section 74(3) of the FOIP Act establishes a statutory right to judicially review an order of the OIPC. However, the Act does not provide a statutory right of appeal. [ 47 ] The Applicants concede that without a statutory appeal mechanism, or circumstances where the Court is being asked to review legal questions which could impact the rule of law, the presumed standard of review is not rebutted.

The standard of review with respect to the substantive merits of the Decision is reasonableness: Vavilov at para 23 . [ 48 ] Related to its procedural fairness argument, the Applicants state that the Decision was unreasonable because the Commissioner artificially restricted herself to the factors enumerated in s. 14(1) when considering whether to permit the extension. If the Applicants were afforded the opportunity to provide submissions, it would be clear that the Commissioner’s decision was unreasonable.

Further the Applicants also argue the Commissioner inappropriately accepted each of Alberta Energy’s reasons for the Application, aside from that of the COVID disruption, without challenge.

The Applicants submit that even though the Respondents advanced the argument that s. 14 was a complete code, the Commissioner inappropriately considered other reasons, outside of s. 14, in the Application. [ 49 ] The Applicants also submit that the time granted under the extension was unreasonable; Alberta Energy had not responded to their FOIP Request at the time the extension was granted nor have they to date received any of the records.

Lastly, the Applicants argue that there were insufficient reasons as to why the Commissioner exceeded what was the usual extension time for this amount of records and, further, that it was unreasonable for the Commissioner to simply encourage, rather than require, Alberta Energy to consider releasing the records in tranches. [ 50 ] Alberta Energy responds that the factors under s. 14 are exhaustive and provide a complete code in terms of the reasons that may be considered by the Commissioner to grant an extension. The Commissioner has no authority to consider other factors in making such a decision. Further, her

interpretation of s. 14, which favours expediency at this stage of the process, should be afforded deference given the Commissioner’s expertise and familiarity with the administrative context. [ 51 ] Alberta Energy submits that the reasons for the Decision demonstrate that after being satisfied that the enumerated grounds for an extension had been proven by Alberta Energy, only then was an extension granted. Alberta Energy notes that its request for a lengthier extension was denied by the Commissioner which further supports the reasonableness of the Decision.

The Submissions of Alberta Energy to the Commissioner Supporting its Request for an Extension [ 52 ] Alberta Energy provided the Commissioner with a

schedule of steps that were still required to be undertaken to respond to the FOIP Request.

The scheduled steps totaled the 612 day time extension requested. [ 53 ] Alberta Energy specifically sought an extension based on the following: • the large number of records sought by the Applicants, approximately 6539; • that at least five third parties needed to be contacted; • that four public bodies needed to be consulted; • the ongoing judicial review it was involved in with the Applicants; • the impact of COVID, including staff absences and delays associated with technical issues, due to working from home during the pandemic; • the need to replace one of the individuals who was in charge of this FOIP request and time for that new point person to get up to speed; • that their staff “ regularly face competing priorities, where the demands of multiple oil and gas industry projects require frequent periods of intense activity and attention, often resulting in unexpected delays in completing FOIP records, reviews and providing recommendations on disclosure ” • the implementation and learning of a new FOIP Net System wherein all tasks must taken place within this system • the upcoming Christmas holidays which would result in a holiday closure of the government for approximately one week; and

• that time was needed for third party consultations to ensure their representations are applied to the records and to ensure there is noinadvertent disclosure which could cause harm to stakeholder relations between Alberta Energy and the third parties and harm businessinterests of the third parties and the GOA. The Decision of the Commissioner [54] The Commissioner addressed the different grounds in turn.

She noted that, under s. 14(1)(b), the time for responding mayonly be extended if a large volume of records were requested or must be searched, and responding within the legislated timelines wouldunreasonably interfere with the operations of the public body. The Commissioner then stated that 500 pages of records would normallymeet the threshold of what the OIPC would consider a large volume of records. In this case there was 6539 pages of records. [55] The Commissioner then referenced the OIPC’s

Section 14 Practice Note: Request for Time Extension Under and found thatAlberta Energy had demonstrated three key factors which supported that production within the legislated timelines would unreasonablyinterfere with the operations of the public body. These factors were complexity of the request, nature and extent of the interference, andimpact to the public body’s operations and program areas competing priorities.

The Commissioner also found that time was needed toconsult with third parties and other public bodies. [56] Accordingly, the Commissioner concluded that an extension was required and went on to determine the length of theextension: Is the Extension Request Reasonable? A public body must make a serious effort to assess the amount of time it requires to complete processing of an access request and inorder to pass a reasonableness review, the estimation of that time must be sufficiently rigorous, logical and supportable.

I reviewed the tasks that remain to complete the processing of this request and the Public Body’s estimation of the time needed for eachtask/activity. I will provide the Public Body with a significant extension, as the request involves 6,539 pages of records and time isrequired to prepare for issuing

section 30 third party notices and for completing possible public body consultations. I am also cognizant that the COVID-19 response has impacted processing timelines. However, I note that the Public Body was providedwith additional time to off-set COVID-19 impacts to process the request. Pursuant to Ministerial Order SA:009/2020 (M.O.), the PublicBody had an initial 90 days (an increase of 60 days), took a section 14(1.1) extension pursuant to the M.O. (an increase of a further 60days), and then a further extension of 30 days pursuant to the standard section 14(1)(b).

This means that the Public Body has alreadyhad 180 days (six months) to process this access request. The Public Body has requested a further 612 days (approximately 20 months or one and three quarter years). I do not see the PublicBody’s request as being reasonable. This access request certainly involves a large volume of records and warrants a significantextension. A request of this size would normally receive an extension of about 270 days (9 months). The Public Body has alreadyreceived an additional 120 processing days due to the M.O. to off-set COVID-19 response impacts.

This means that with the additionalextension of 270 days that I will grant, the Public Body will have a total of 450 days (approximately 15 months). There is insufficientinformation to justify granting any more time than that.

Due to the volume of the request and the significant processing time provided, I encourage the Public Body to develop and plan andschedule to support releasing records in batches where possible. …… [57] In sum, the Commissioner granted the extension based on the large amount of records and because she found that respondingwithin the legislated timelines would unreasonably interfere with the operations of the public body pursuant to s. 14(1)(b). TheCommissioner also held that an extension was warranted due to the need to consult with third parties under s. 14(1)(c).

Did the Decision reflect Internally Coherent Reasoning? Was the Decision Justified in Light of the Legal andFactual Constraints that Bear on the Decision? [58] The burden is on the Applicants to show that the Decision is unreasonable: Vavilov at para 100. Reasonableness pertains toboth the manner in which the decision was made, as well as the outcome: para 83. A reviewing court should be sensitive to theadministrative regime in which the decision was given; the court should not focus on minor missteps: paras 102 and 103. However, thereasoning must be internally coherent, rational and logical: para 102.

A decision must also be justified within the constraints evidentfrom its legal and factual context: para 105. [59]

Section 2 of the FOIP Act emphasizes the importance of timely access to information. Section 14(1) establishes that anextension will not be granted unless limited and specific statutory factors are met. The presumption under the legislative scheme is thatdocuments are to be disclosed in a timely manner. The onus is on the public body to rebut this presumption and make submissions as towhy delay should be allowed. [60] Statutory

interpretation begins with the framework set out in Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1SCR 27 at para 21, 76 ACWS (3d) 894: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [61] Both the purposes outlined in s. 2 of the FOIP Act and the wording of s. 14 lead to the conclusion, at least in terms of whetherextensions can be granted, that the factors enumerated under s. 14(1) are both mandatory and exhaustive. This

interpretation is consistent

with the legislative purpose of the FOIP Act to promote timely disclosure, which in turn, promotes accountability of public bodies tocitizens. This

interpretation is also accorded to the

section by the Commissioner, who is familiar with both the legislation and theadministrative regime. [62] The question that is less clear is whether the Commissioner can decline to grant extensions on other grounds, even if theenumerated factors are present. In particular, in this case, the Applicants emphasize that the Commissioner could have considered thereasons why the Applicants needed the materials in a timely way; had they been afforded the opportunity to make submissions, theywould have provided this information.

Alberta Energy and the Commissioner, however, submit that it is not fair for the Commissioner toprioritize certain requests over others. All requests are important. [63] I have already found that procedural fairness did not require, in this case, that the Commissioner seek submissions regardingAlberta Energy’s application to extend. I also agree with the Respondents that all FOIP requests are important.

However, if theCommissioner is aware of a deadline which has already been provided in a FOIP request, the passing of which would potentially defeatthe purposes of the FOIP request, it may be that she is not precluded from considering this deadline along with the enumerated statutoryfactors. The Commissioner’s decision to exercise such discretion would then be assessed on a reasonableness standard. I decline toforeclose an

interpretation of s. 14 which would allow the Commissioner to exercise discretion to refuse to grant an extension on thebasis of particular information the Commissioner has at the time of considering the extension. [64] In the circumstances at hand, the Commissioner had some awareness that Alberta Energy was facing a judicial review,through the extension submissions of Alberta Energy, but not about the upcoming deadline for the Coal Policy Committee to receivesubmissions.

However, in the face of the submissions of Alberta Energy concerning the strength of the other grounds and the limitedinformation she had regarding the judicial review, it was not unreasonable for the Commissioner to not consider the judicial review whenshe granted the extension. Again, I recognize the Applicant’s argument that if they had been provided an opportunity to give submissionsthey would have specifically informed the Commissioner about their purposes for which the FOIP request was made and the deadlines.The degree of procedural fairness afforded to the Applicants has been assessed.

My comments that s. 14 may bear an

interpretationwhich allows the Commissioner to consider the purposes of the FOIP request, still do not persuade me, on these facts and whenconsidered within the Baker factors, that my conclusion on procedural fairness needs to be revisited. [65] The Supreme Court of Canada in Dagg v Canada (Minister of Finances), (SCC), [1997] 2 SCR 403 at para 61, 148 DLR (4th) 385, discusses the importance of access to information legislation, and emphasizes that in order for meaningfulparticipation to occur, citizens or interested parties must be given timely access to the information they require. [66] In Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53, the Supreme Court of Canadacautioned against allowing parties to delay the production of requested important records within their control.

Indeed, the purposes of theFOIP Act may potentially be frustrated if a public body, when faced with a request for information disclosure, is allowed to significantlydelay the disclosure. If the public is not provided with information in a timely fashion, in the OIPC’s own words, “the Act’s goals ofaccountability and openness become increasingly frustrated”: Alberta Health and Wellness (Re), (AB OIPC) at para30. [67] The purposes of the FOIP Act and the importance of disclosure to the meaningful participation of citizens in a democracycannot be minimized.

To give effect to the purposes of her enabling statute, the Commissioner must demonstrate sufficient attentivenessto the importance of every FOIP request that comes before her.

The Commissioner is, in essence, the guardian of applicants’ interestsand right to timely disclosure and must give them sufficient weight when deciding whether to grant an extension. [68] The Commissioner began her decision by demonstrating sensitivity to the purposes of the FOIP Act, emphasizing that “theAct was premised on the timely processing of requests.” [69] The Commissioner then assessed the volume of records on the basis of number of pages and referred to the benchmark of 500pages as a threshold established by the OIPC for what may constitute “a large volume”.

Certainly, different types of records may warrantdifferent types of time lines, however, the Commissioner was entitled to set benchmarks as to the number of records that would beconsidered “large” when deciding whether or not to permit an extension. [70] The Commissioner also reasoned, later in her decision, that the size of the FOIP Request would ordinarily warrant anextension of 270 days (or 9 months).

Again, it is appropriate for administrative regimes, who are most familiar with the types of requestsmade to different public bodies, to establish ranges or benchmarks for extensions, so long as the Commissioner is not inflexible withrespect to these benchmarks. This promotes consistency within the administrative structure and gives some comfort to applicants thatthere will not be wildly differing extension times permitted for similar requests.

Notably, the Commissioner rejected Alberta Energy’srequest for a 612 day extension, stating that it was unreasonable. [71] The Applicants question why in this case an additional 9 month extension was granted, which when added to the previousinternal extensions would total 15 months, when the Commissioner stated that this volume of records would usually attract only a 9month extension.

However, I find that a close review of the wording in the Decision supports that the 9 month extension refers to anextension granted by the Commissioner within the context of a request to the Commissioner to extend, and not the total amount of timewhen considering internal extensions made by the public body.

The fact that the Commissioner stated that a 9 month extension would beits usual extension time given the amount of records and then granted 9 month extension in the case before her also supports aninterpretation that the Commissioner is following its usual practice. [72] When assessing impact on operations, the Commissioner considered the complexity of the request, the nature and extent ofthe interference, and impact to the public body’s operations and program areas competing priorities. The Commissioner reasonablycharacterized the FOIP Request as complex.

The FOIP Request was broad and worded: “…copies of Alberta Energy’s records thatdiscuss the rescission or change of the coal policy (1976 Coal Policy) or exceptions to the coal policy, including: any briefing materials(briefing notes, internal memos, reviews, reports), and correspondence (emails, letters). To be clear, we are also requesting third partyrecords.” The Applicants were not simply requesting information specific to one incident or otherwise limiting their request by

requesting records which existed over a short time frame. While I acknowledge that Alberta Energy’s submission with respect to how its operations would be unreasonably interfered with would have benefitted from more specificity; this shortcoming is not “sufficiently central or significant to render the decision unreasonable.”: Vavilov para 100 . [ 73 ] Alberta Energy also submitted that at least five third party businesses and four public bodies needed to be consulted, with respect to their records in the possession of Alberta Energy.

The Commissioner found that additional time was required to prepare consultation packages and third party notice packages, given the number of records involved in the consultations, and the number of consultations, and the nature and complexity of the consultations. In short, time needed for third party consultations was another statutory factor which was considered by the Commissioner and which provides support for the reasonableness of the Decision. [ 74 ] I acknowledge that the Commissioner encouraged, though did not require, Alberta Energy to prepare a

schedule and disclose the records in tranches. Any requirement that Alberta Energy must respond in tranches to the request could likely only be made after the Commissioner spent additional time and resources more closely examining the over 6500 pages of records. The Commissioner was entitled, as a matter of proportionality, to refuse to expend more time and energy reviewing the records to see whether it was appropriate to require Alberta Energy to respond to the request in stages.

I do not find that the encouragement of the Commissioner that Alberta Energy disclose in a particular way makes the Decision unreasonable. [ 75 ] The Applicants argue that the Commissioner considered other factors which are not set out in s. 14. For example, the Applicants state that the Commissioner considered, as set out in the first paragraph of the Decision, that the estimation of time must pass a reasonableness review and be sufficiently rigorous, logical and supportable.

To the extent that the Commissioner required any estimation of time requested by the public body to be “sufficiently rigorous, logical and supportable”, I do not find consideration of these markers to be inappropriate or unauthorized. [ 76 ] Consistent with her

interpretation of s. 14 factors as exhaustive, the Commissioner specifically declined to grant an extension on particular grounds that were not enumerated. She noted that COVID reasons were already taken into consideration in the extended time frame as set out in the Ministerial Order.

She also concluded her decision with advice to the public body regarding notices under s. 30 and 31 of the Act indicating that timelines for those notices were addressed under those sections. [ 77 ] The Commissioner also did not address certain specific grounds relied upon by Alberta Energy as grounds for an extension, thereby implying that these grounds could not be considered in its Application. In particular, the Christmas holiday closure (not a proper consideration as set out in the Request for Time Extension Under

Section 14 Practice Note), and the judicial review, were not considered by the Commissioner as grounds for the extension. I find that Commissioner adhered to the legislation and did not extend the time based on any improper factors. [ 78 ] At first blush, the granting of a 9 month extension by the Commissioner seems unreasonably long. However, the legislature in creating the FOIP Act recognized that it takes a public body, upon receiving a request, time to coordinate resources and gather information. Significant extensions pursuant to the Ministerial Order were allowed due to COVID-19 related reasons.

Specifically, the Ministerial Order allowed Alberta Energy to grant a total of 180 days extension to itself, before even needing approval from the Commissioner. [ 79 ] As pointed out by Alberta Energy and stated in Vavilov at paras 83-84 , “a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem”.

I must take care not to impermissibly substitute my own decision for that of the Commissioner. [ 80 ] The Commissioner was attuned to the purposes of the Act and the importance of timely disclosure to applicants, as demonstrated when the Commissioner denied the 612 day extension requested by Alberta Energy. The Commissioner referred to the threshold of 500 records as a bench mark when determining whether the number of records in this case, being 6539, constituted a large number of records. The Commissioner acknowledged the average extension time it usually granted, consistent with that amount of records.

The Commissioner also considered additional time that was needed to issue third party notices and complete possible public body consultations. The Commissioner, in granting the extension, properly relied upon only those enumerated factors that could be considered under s. 14. [ 81 ] The Commissioner’s decision discloses coherent internal reasoning and was made within the legal and factual context in which she was placed. The Decision was reasonable.

Conclusion [ 82 ] The application for judicial review is dismissed. [ 83 ] Costs may be spoken to within 30 days if necessary. [ 84 ] I am grateful to all counsel for their excellent submissions. Heard on the 12 th day of August, 2021. Dated at the City of Calgary, Alberta this 10 th day of September, 2021.

J.R. Ashcroft J.C.Q.B.A. Appearances: Richard E. Harrison Wilson Laycraft for the Applicants Melissa Burkett/Andrea Simmonds Alberta Justice for the Respondent, Alberta Energy Jillian Harker for the Respondent, Office of the Information and Privacy Commissioner