National Defence (Re), 2023 OIC 04

Date: 2023-02-27
OIC file number: 5822-02572
Institution file number: A-2022-00555

Summary

The complainant alleged that National Defence (DND) did not conduct a reasonable search in response to an access request under the Access to Information Act for all documents held by two named individuals that pertain to reports of, or deal with the general subject of, unidentified aerial phenomena (UAP). The complaint falls within paragraph 30(1)(a) of the Act.

The investigation determined that the Office of Primary Interest misread the access request text and also unnecessarily limited their search to a keyword search. The Office of the Information Commissioner requested DND to perform an additional tasking and search for records, which resulted in the retrieval of additional 11 pages of records.

The Information Commissioner ordered that DND give access to all additional responsive records, unless access to them may be refused under a specific provision of the Act, and to provide a new response no later than 36 business days after the date of the final report.

DND gave notice to the Commissioner that it would be implementing the orders.

The complaint is well founded.

Complaint

[1] The complainant alleged that National Defence (DND) did not conduct a reasonable search in response to an access request under the Access to Information Act for all documents held by two named individuals that pertain to reports of, or deal with the general subject of, unidentified aerial phenomena (UAP). The complaint falls within paragraph 30(1)(a) of the Act.

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] DND initially responded to the access request by stating that no records could be located within the department.

[6] The Office of the Information Commissioner (OIC) contacted the complainant in an attempt to obtain any evidence that would support the claim that DND’s search was unreasonable. The complainant initially provided evidence in the form of emails to/from one of the individuals named in the request that appeared to deal with the general subject of UAP. The complainant subsequently provided additional evidence in the form of emails to the same named individual related to the general subject of UAP that included relevant keywords.

[7] In addition, the OIC asked DND to provide details related to their response that they did not have any records responsive to the request. DND provided details regarding tasking and search methodology, as well as an explanation that the initial email communication provided by the complainant lacked any keywords to identify it during a search.

[8] DND also stated that during the initial search for records by the Office of Primary Interest (OPI), the text of the request was misread so as to only relate to reports of UAP, and not to the general subject of UAP. As such, a response was provided to DND’s Directorate Access to Information and Privacy (DAIP) that there were no records responsive to the request. The OPI has recognized that this interpretation of the request text was an error.

[9] In response to questioning regarding whether further responsive records exist beyond those provided by the complainant, DND stated that there were no further records. The OIC subsequently requested DND to perform an additional tasking and search for records, which resulted in the retrieval of additional 11 pages of records.

[10] DND has advised that before issuing a subsequent disclosure containing these pages, it would require an internal consultation with one of their OPIs. In light of the current DND workload within the DAIP office, DND further advised that it would not be in a position to provide the subsequent disclosure until April 2023.

[11] Section 2 of the Act sets out a general right of access to records that are under the control of government institutions. This general right is limited by “necessary exceptions to the right of access” that are set out in the Act, which “should be limited and specific”. The right of access should not be further limited by whether the records are able to be located by a keyword search.

[12] Furthermore, section 6 states that a request “…shall provide sufficient detail to enable an experienced employee of the institution to identify the record with a reasonable effort.” A search limited to records identified by keyword search, only, would not necessitate an experienced employee to conduct the search. Further, allowing such an interpretation could frustrate the right of access by allowing the creation of records lacking keywords in an effort to avoid identification during a search for records.

[13] In light of the above, I conclude that DND did not conduct a reasonable search for records in response to the access request.

Result

[14] The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the Minister of National Defence to:

1. Give access to all 11 pages of additional responsive records, unless access to them, or to part of them, may be refused under a specific provision(s) of Part 1 of the Act. When this is the case, DND must name the provision(s); and
2. Provide a new response no later than 36 business days after the date of the final report.

On February 15, 2023, I issued my initial report to the Minister of National Defence setting out my order.

On February 15, 2023, the Chief of Operations of the Directorate Access to Information and Privacy gave me notice that DND would be implementing my order.

When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They must apply for this review within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43.