Library and Archives Canada (Re), 2023 OIC 18
Date: 2023-07-14
OIC file number: 3215-00932
Institution file number: A-2014-00069/MR
Summary
The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under subsection 13(1) (confidential information from government bodies) and subsection 15(1) (national security, defence) of the Access to Information Act in response to an access request regarding submarine operations in the Arctic region. The complaint falls within paragraph 30(1)(a) of the Act. LAC could not show that it met all the requirements of subsection 13(1) and subsection 15(1), in particular, how the information in the record was obtain in confidence and how further disclosure of the withheld information could reasonably be expected to harm national security and/or the defence of Canada. The Information Commissioner recommended that LAC disclose the records in their entirety. LAC gave notice to the Information Commissioner that it would not be implementing the recommendation.
The complaint is well founded.
Complaint
[1] The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under subsection 13(1) (confidential information from government bodies) and subsection 15(1) (international affairs, national security, defence) of the Access to Information Act in response to an access request for information regarding submarine operations in the Arctic region. The complaint falls within paragraph 30(1)(a) of the Act.
Investigation
[2] When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.
[3] On March 11, 2022, LAC provided a supplementary disclosure to the complainant and released some information that was previously withheld. LAC maintains that the remaining information is justifiably withheld from disclosure under subsections 13(1) and 15(1).
[4] However, I am not satisfied that LAC has justified its use of subsections 13(1) and 15(1) on the information that remains withheld from release. My findings on these remaining exemptions follow.
Subsection 13(1): confidential information from government bodies
[5] Subsection 13(1) requires institutions to refuse to release information obtained in confidence from certain government bodies.
[6] To claim this exemption, institutions must show the following:
- The information was obtained from one of the following government bodies:
- a government of a foreign state or an institution of a foreign state;
- an international organization of states or an institution of such an organization;
- a provincial government or institution;
- a municipal or regional government or institution; or
- an aboriginal government or council listed in subsection 13(3).
- The information was obtained from the government body in confidence—that is, with the understanding that it would be treated as confidential.
[7] When these requirements are met, institutions must then consider whether the following circumstances exist:
- The government body from which the information was obtained consents to its release.
- That body has already made the information public.
[8] When one or both of these circumstances exist, subsection 13(2) requires institutions to reasonably exercise their discretion to decide whether to release the information.
Does the information meet the requirements of the exemption?
[9] LAC used subsection 13(1) to withhold page 241 of the records, in its entirety. LAC maintains that the requirements of subsection 13(1) have been met because the government body that created this record has not made the information contained in the correspondence public. In its representations, LAC indicated that consultations are ongoing to determine if the government body will consent to its release.
[10] LAC has not provided any evidence regarding an expectation of confidentiality, either explicitly or implicitly (for example, in the channels through which the information was conveyed, any restrictions on distribution of the information, or in the type of information contained in the record.)
[11] The information contained in the record, absent any other evidence, does not support a finding of confidentiality. There are no distribution markings on the record that would limit its circulation. The investigation provided several arguments demonstrating how the record would likely not have been obtained in confidence. In order to meet this threshold, there must be something more in the way of evidence than what is currently in the document.
[12] In light of the above, I conclude that the information does not meet the requirements of subsection 13(1).
Did the institution reasonably exercise its discretion to decide whether to release the information?
[13] The investigation determined that LAC failed to meet the requirements of subsection 13(1). As a result, the examination of LAC’s exercise of discretion is unnecessary.
Subsection 15(1): defence
[14] Subsection 15(1) allows institutions to refuse to release information that, if disclosed, could reasonably be expected to harm the conduct of international affairs, or defence or national security (for example, information related to military tactics, weapons capabilities or diplomatic correspondence, as set out in paragraphs 15(1)(a) to (i)).
[15] To claim this exemption, institutions must show the following:
- Disclosing the information could harm one of the following:
- the conduct of international affairs;
- the defence of Canada or any state with which Canada has an alliance or treaty, or any state with which Canada is linked, as defined in subsection 15(2); or
- the detection, prevention or suppression of specific subversive or hostile activities, as defined in subsection 15(2).
- There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.
[16] When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to release the information.
Does the information meet the requirements of the exemption?
[17] During the investigation, LAC agreed to disclose a minimal amount of information that was previously withheld under subsection 15(1). LAC provided a supplementary disclosure to the complainant on March 11, 2022.
[18] LAC continues to withhold the remaining information on the basis that releasing such information would have national security implications. After a careful review of the records, as well as LAC’s representations in support of the remaining redactions, I remain unconvinced that the continued application of subsection 15(1) is justified.
[19] LAC indicates that given the overall sensitivity of current Canadian policies and technologies in the Arctic, or related to Arctic defence, the release of the information at issue could still be injurious regardless of the passage of time.
[20] After reviewing LAC’s representations, I am not convinced that the harm test has been properly demonstrated. In addition to the fact that the acoustic trials provide sensors results regarding submarines that, since then, have been dismantled, much information is also available in the public domain regarding low frequency analysis and recording instruments and frequency sound (see Low-frequency acoustic propagation loss in the Arctic Ocean, Gavrilov, 2006).
[21] Concerning warning systems for the Canadian Arctic, again LAC did not demonstrate how the probable harm test required by the exemption has been met. The fact that the records are over 60 years old makes it reasonable to think that the value of the records is much more historical and academic than tactical and military.
[22] Furthermore, related records to this subject were disclosed in their entirety in LAC file A-2014-00419. This previous release covered underwater detection system requirements, considerations and Canada’s vulnerabilities in the Arctic.
[23] Similarly, the information about the Canadian Arctic operations is the subject of published material. For example, Adam Lajeunesse published an article titled, ‘’ A very practical requirement: under-ice operations in the Canadian Arctic, 1960-1986 ’’ in 2012. A significant amount of information, which is currently withheld in the responsive records, can be found in this article.
[24] In addition, I note that the Research Department at NATO STO Center for Maritime Research and Experimentation is proactively publishing documents regarding active and passive acoustic systems, submarine threats, just to name those subjects (Sensors | Free Full-Text | Sensors to Increase the Security of Underwater Communication Cables: A Review of Underwater Monitoring Sensors (mdpi.com)). In addition, Global Affairs Canada is proactively publishing historical documents on the Arctic (E2-39-Ar-2016.pdf (lac-bac.gc.ca)).
[25] Even though it is possible that the requirements and recommendations in the relevant records are still somehow valid, it is unreasonable to assume that any present-day warning system would be based solely on data from these historical records. I conclude that the claim of harm in disclosure is speculative.
[26] Having carefully considered LAC’s representations, I am not satisfied that the criteria needed to withhold information under subsection 15(1) have been met. I find that, while LAC reiterated that the redacted information is sensitive to present day circumstances, it did not submit convincing evidence as to how further disclosure of the withheld information could reasonably be expected to harm national security and/or the defence of Canada.
Did the institution reasonably exercise its discretion to decide whether to release the information?
[27] The investigation determined that LAC failed to meet the injury test required by subsection 15(1). As a result, the examination of LAC’s exercise of discretion is unnecessary.
Result
[28] The complaint is well founded.
Recommendation
I recommend that Minister of Canadian Heritage disclose the responsive records in their entirety, no later than the 36th business day after the date of the final report.
The Minister must abide by the terms of subsection 37(4) when disclosing any records in response to my recommendation.
On May 30, 2023, I issued my initial report to the Minister of Canadian Heritage setting out my intended recommendation.
On June 23, 2023, the Minister of Canadian Heritage gave me notice that LAC would not implement my recommendation and would maintain the redactions under subsections 13(1) and 15(1) on the information that remains withheld from release.
When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.