A Federal Court judge said she was unable to censure National Defence for taking a three-year extension on delivering records requested under the Access to Information Act, an extension the commissioner had argued was unreasonable.
The ruling earlier this month has raised concerns that other departments may now give themselves longer extensions for responding to access-to-information requests, making an existing delay problem even worse.
The case involved a request in late 2010 for documents related to the sale of surplus Canadian military assets to Uruguay.
National Defence gave itself a 1,110-day extension to provide the material, or just over three years.
The requester complained to information commissioner Suzanne Legault, who took the case to court — and lost in a judgment March 3.
Judge Catherine Kane ruled that the way the act is worded does not allow her to censure National Defence by issuing a declaration in favour of the information commissioner.
Kane said the act would have to be rewritten on the matter of extensions — a responsibility of Parliament — for any judge to intervene.
The judge also acknowledged, however, that the issues Legault raised are important and in the public interest and are likely to arise again.
The information commissioner has until April 2 to seek leave to appeal. A spokeswoman, Natalie Hall, declined comment saying only that the office is analyzing the decision and "considering our options."
Ottawa lawyer Michel Drapeau, who has co-authored a textbook on the Access to Information Act, called the Federal Court ruling "extraordinarily bad news."
Drapeau said the decision may give fuller rein to departments and agencies to claim longer delays, knowing the courts now are unlikely to sanction them.
"A lot of champagne will be uncorked in many institutions ... because they are going to say, listen, why did we only ask for 1,000 days (of extension)? Next time we'll ask for 10,000."
The ruling "provides almost a safe haven or provides sort of an amnesty to departments," he said in an interview.
Even if the ruling is appealed, it will be a year or more before the case is heard and decided, leaving requesters at the mercy of federal government institutions in the meantime, he said.
The National Defence case raised complicated issues, not least because the department actually provided the requested records on Sept. 11 last year — months in advance of its own extension. Federal lawyers then asked that the case be dismissed.
Kane decided it could continue because an important issue was at stake. In the end, however, the judge ruled that Legault's application "must be dismissed."
"Despite this outcome, the applicant (Legault) has effectively highlighted that the remedies for non-compliance with the act are limited and that legislative change would be the only way to provide more options and remedies."
The Conservative party in the 2006 election campaign promised to provide order-making powers to the information commissioner, but has never acted on the issue. Legault's powers remain largely limited to the court cases she can launch, regular and special reports to Parliament and moral suasion.
Legault has frequently cited delays in responses as one of the most urgent problems vexing the access-to-information regime, citing an increasing number of complaints to her office.
Some academic research from a decade ago found that delays in responses are more common for access requests from journalists and from opposition parties in the House of Commons.
More than 55,000 access-to-information requests were filed in 2012-2013, of which 21,000 were from businesses, including drug companies and law firms. Another 22,000 were from the "public," according to Treasury Board statistics.
Any resident of Canada can file a request by paying a $5 application fee and the act stipulates a response must be provide within 30 days. But departments can give themselves extensions under provisions that refer to the need to consult with other departments or third parties; and to heavy workloads that would interfere with the regular operations of the department.
In 2012-2013, some 35 per cent of requests took longer than 30 days to complete, down from 45 per cent in the previous year. Almost 1,000 requests last year took more than a year to answer, down from 1,300 the year before.
Treasury Board President Tony Clement has said that his government has released more information than any other in Canadian history, and that access-to-information requests have become more difficult to process as they deal with more complicated issues.