Library and Archives Canada (Re), OIC 2022 43
Date: 2022-08-19
OIC file number: 3215-00887
Institution file number: A-2014-00419/DGI
Summary
The complainant alleged that Library and Archives Canada (LAC) improperly withheld information under subsection 15(1) (national security, defence) of the Access to Information Act in response to an access request for historical documents regarding the defence of the Arctic region.
The complaint falls within paragraph 30(1)(a) of the Act. LAC could not show that it met all of the requirements of this exemption—in particular, how the release of the subject information would 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 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 15(1) (national security, defence) of the Access to Information Act in response to an access request for information regarding the defence of the Arctic region.
Investigation
[2] When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.
Subsection 15(1): national security, defence
[3] 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)).
[4] 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.
[5] 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?
[6] LAC made a partial disclosure of records when it first responded to the request. As a result of the investigation by the Office of the Information Commissioner (OIC), LAC provided a supplementary disclosure to the complainant. At this time, some additional information was released that was previously exempted under subsection 15(1). LAC continued to withhold from release the majority of the information on the basis that releasing such information would have national security implications. The OIC had reviewed with great care LAC’s representations received in support of remaining redactions, and had undertaken a careful review of the records, but remained unconvinced that the continued application of subsection 15(1) was justified.
[7] The responsive records relate to plans, operations and Arctic Defence-related information. The record set consists of 378 pages and dates back to the 1980s. Over the course of the investigation, the OIC had provided evidence to LAC that both Canada and the United States have previously disclosed a significant amount of similar historical national security information.
[8] For example, the United States declassified a CIA Weekly Summary Special Report dated January 31, 1975, named International Relationships in the Arctic Basin.
[9] Similarly, the Treaty – E101003 (Exchange of Notes Constituting an Agreement Between the Government of Canada and the Government of the United States of America on the Modernization of the North American Air Defence System) provides details about the North American air defence modernization and supports the OIC’s position that the claim of harm in disclosure is insufficient to accept the exemption.
[10] A portion of the records pertains to detection mechanisms and a specific program, the Arctic Subsurface Surveillance System (ARCSSS) that was cancelled in 1989 (Rob Huebert, 1999, Canadian Arctic Security Issues: Transformation in the Post-Cold War Era, pp 222-223). In its representations, LAC indicated that even if the ARCSSS program was cancelled, the release of the withheld portions of the records would be harmful to the defence of Canada. LAC failed, however, to demonstrate how the release of such material would harm the defence of Canada.
[11] Records also concern the USSR, which was dissolved in 1991. As such, any allegations of harm in case of disclosure of relevant information should have been detailed and specific. LAC has not provided sufficient explanations to support the continued redaction of information relating to the USSR.
[12] In addition, LAC has made past disclosures about the Soviet threat (see LAC ATIP A-2015-00577, JIC Assessment: The threat to Canada from Communist Subversion, Espionage and Sabotage).
[13] Furthermore, the information about the Canadian Arctic operations is the subject of published material. For example, Adam Lajeunesse and Whitney Lackenbauer published an ebook titled, ‘’Canadian Arctic Operations, 1941-2015, Lessons Learned, Lost, and Relearned’’ in 2017. A significant amount of information, which is currently withheld in the responsive records, can be found in this book.
[14] In addition, the OIC is aware that Global Affairs Canada is proactively publishing historical documents on the Arctic (E2-39-Ar-2016.pdf (lac-bac.gc.ca)).
[15] LAC has indicated that considering the overall sensitivity of current Canadian policies and technologies in the Arctic, or related to Arctic defence, the release of the information could still be injurious regardless of the passage of time. LAC has argued that the information could be considered even more sensitive today than in the late 1980s, when the subject matter records were first created.
[16] Furthermore, LAC has stated that prior release of records under the Act had no impact on the release of the information in response to the current request.
[17] Having carefully considered LAC’s representations, I am not satisfied that the criteria needed to withhold information under subsection 15(1) have been met. In reaching this conclusion, I considered that the subject information is either publically available, it concerns a republic that no longer exists and/or a program that may have been cancelled.
[18] More specifically, while LAC reiterated that the redacted information is sensitive to present day circumstances, it has not indicated how further disclosure of the withheld information would harm national security and/or the defence of Canada. As the OIC reminded LAC, the allegations of harm caused by the disclosure of information must be probable and not a mere possibility.
Did the institution reasonably exercise its discretion to decide whether to release the information?
[19] 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 was unnecessary.
Result
[20] The complaint is well founded.
Recommendation
I recommend that the Minister of Canadian Heritage disclose the responsive records in their entirety, no later than 10 days 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 July 20, 2022, I issued my initial report to the Minister, setting out my intended recommendation.
On August 15, 2022, the Minister gave me notice that LAC would be implementing my recommendation.
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.