National Defence (Re), 2022 OIC 04

Date: 2022-01-28
OIC file number: 3217-02579
Institution file number: A-2017-01503

Summary

The complainant alleged that National Defence (DND) performed an incomplete search for records in response to a request under the Access to Information Act for the Official Radio Log Book of the HMCS Shawinigan from August 1, 2016 to October 31, 2016.

During the investigation, the Office of the Information Commissioner (OIC) learned that DND tasked the appropriate program area, the Royal Canadian Navy (RCN), with the retrieval of the requested records. However, the RCN responded that the requested records had been “lost”.

Despite DND’s Summary Investigation, DND failed to reach any definitive conclusions as to how or when the HMCS Shawinigan Tactical Communication log came to be lost.

The investigation highlights the implications of deficiencies in records management and the impact this may have on the right of access. However, there is no basis upon which the OIC can conclude that DND failed to conduct a reasonable search for the records sought or that responsive records could reasonably be found.

A copy of this report will be sent to the Minister of National Defence as a reminder of the importance of good records management practices.

The complaint is not well founded.

Complaint

[1] The complainant alleged that National Defence (DND) performed an incomplete search for records in response to a request under the Act for the Official Radio Log Book of the HMCS Shawinigan from August 1, 2016 to October 31, 2016.

Investigation

[2] DND was required to conduct a reasonable search for records that fall within the scope of the access request—that is, one or more experienced employees, knowledgeable in the subject matter of the request, must have made reasonable efforts to identify and locate all records reasonably related to the request.

[3] A reasonable search involves a level of effort that would be expected of any fair, sensible person tasked with searching for responsive records where they are likely to be stored.

[4] This search does not have to be perfect. An institution is therefore not required to prove with absolute certainty that further records do not exist. Institutions must however be able to show that they took reasonable steps to identify and locate responsive records.

Did the institution conduct a reasonable search for records?

[5] During the investigation, the OIC learned that DND tasked the appropriate program area, the RCN, with the retrieval of the requested records. However, the RCN responded that the requested records had been “lost”.

[6] DND, in turn, responded to the access request by stating that: “no records could be located within the Department of National Defence.”

[7] DND’s Access to Information (ATI) Office, upon being asked by the complainant why no responsive records could be found, obtained clarification from the complainant that the request was for both the HMCS Shawinigan’s Tactical Communication log and Message log for the specified timeframe. The RCN was then asked to confirm the accuracy of its initial response that no responsive records could be found.

[8] The RCN explained that Message logs are destroyed monthly and therefore did not exist at the time of the access request. The RCN confirmed that while this log ought to have existed at the time of DND’s receipt of the request, but had not been found.

[9] The OIC’s investigation revealed that searches for the Tactical Communications log included a search of the HMCS Shawinigan itself, as well as onshore storage facilities. When the log was still not located, RCN officials speculated that the Tactical Communications log had been misplaced after being put in storage during a hull transfer between the HMSC Shawinigan and HMCS Glace Bay.

[10] The OIC, noting that the HMCS Shawinigan was involved in the search for the Franklin expedition, questioned whether the ship’s Tactical Communication log might have been loaned out as part of a museum exhibition or sent to Library and Archives Canada (LAC). DND confirmed that this was not the case.

[11] Through further searches for the Tactical Communications log, the RCN discovered that the book within which the HMCS Shawinigan’s Tactical Communications logs had been recorded was subsequently used as a log book for the HMSC Glace Bay. That being said, the HMCS Shawinigan Tactical Communications log information (including log pages pertaining to the timeframe set out in the access request) had been removed.

[12] This, in turn, resulted in DND conducting a “Summary Investigation” – in the form of an internal, administrative, fact-finding investigation – of the circumstances surrounding the removal and disappearance of the log pages. That investigation involved, among other things, interviewing members serving on the HMCS Shawinigan during the period of August 1, 2016 to August 31, 2016, and on the HMCS Glace Bay following the HMCS Shawinigan’s hull transfer.

[13] Despite numerous interviews with officers and crew, DND’s Summary Investigation failed to reach any definitive conclusions as to how or when the HMCS Shawinigan Tactical Communication log came to be lost. According to a Report of DND’s Summary Investigation, dated May 22, 2018:

Tactical Communication logs are typically found on the vessel until a log book is complete, at which point they would generally be put into storage and either retained by DND or transferred to LAC;
The log book on the HMCS Shawinigan was stored in accordance with established procedures; i.e., only removed from the Communications Control Room for Officer of the Watch Manoeuvers (at which time the log was moved to the bridge), and then filed in a filing cabinet in the Communications Control Room;
The HMCS Shawinigan log book was transferred to and used by the HMCS Glace Bay; however, log information pertaining to the HMCS Shawinigan (believed to consist of some 13 pages of information) was removed (torn out) of the log book;
It is not known when this occurred;
The missing pages could not be found;
The storage location of the log prior to loss, to whom the log was charged at the time of loss, and the last time that the log was seen, are all unknown;
It is also not known whether accounting and verifications of the log prior to loss were carried out in accordance with established procedures.

[14] In reviewing this report, the OIC issued an Order for the Production of Records, requiring DND to produce, among other things: all records pertaining to DND’s processing of the access request and the Summary Investigation undertaken by DND; guidelines, directives, regulations and orders applicable to the requested log; and a copy of the log book from which pages pertaining to the HMCS Shawinigan’s Tactical Communications log had been removed.

[15] These records, and other records obtained during the course of the OIC’s investigation, make clear that DND recognized throughout that the HMCS Shawinigan’s Tactical Communications log was not a transitory record and that it ought to have been preserved. Nonetheless, this Tactical Communications log information could not be found.

[16] As was the case with DND’s Summary Investigation, I am unable to determine when or how the HMCS Shawinigan Tactical Communications log came to be missing. Also, based on the information gathered, there is no indication that these records were lost or destroyed subsequent to DND’s receipt of the request or in an effort to avoid access under the Act.

[17] The investigation highlights the implications of deficiencies in records management and the impact this may have on the right of access. However, there is no basis upon which I can conclude that DND failed to conduct a reasonable search for the records sought or that responsive records could reasonably be found. DND tasked the appropriate sectors and conducted reasonable searches in accordance with its obligations under the Act. Unfortunately, despite these efforts, the requested records could not be found.

[18] Although I have now exhausted my jurisdiction to investigate this complaint, I am sending this report to the Minister of National Defence as a reminder of the importance of good records management practices. I will also continue to bring concerns regarding proper information management to the attention of the Treasury Board of Canada Secretariat, which provides direction to government institutions for the effective and consistent administration of the Act. The right of access is contingent on two factors: institutions properly documenting their key actions and decisions, and the retention of these records.

Result

[19] The complaint is not well founded.

Section 41 of the Act provides a right to the complainant who receives this report 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.