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National Defence (Re), 2023 OIC 05

Date: 2023-03-01
OIC file number: 5822-02699
Institution file number: A-2022-00127

Summary

The complainant alleged that National Defence (DND) did not respond to an access request for specific records related to strategic communications campaigns regarding managing perceptions about drones within the 30‐day period set out in section 7 of the Access to Information Act. The complaint falls within paragraph 30(1)(a) of the Act.

DND did not respond to the request, being of the view that it did not meet the requirements of section 6 of the Act.

The investigation found that the request met the requirements of section 6 of the Act and that, as a result, DND should have been able to process the request without the need for clarification. As such, DND was in a state of deemed refusal pursuant to subsection 10(3).

The Information Commissioner ordered that DND provide a complete response to the access request.

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

The complaint is well founded.

Complaint

[1]      The complainant alleged that National Defence (DND) did not respond to an access request for specific records related to strategic communications campaigns regarding managing perceptions about drones within the 30‐day period set out in section 7 of the Access to Information Act. The complaint falls within paragraph 30(1)(a) of the Act.

Investigation

Time limits for responding to access requests

[2]      Section 7 requires institutions to respond to access requests within 30 days unless they have transferred a request to another institution or validly extended the 30-day period for responding by meeting the requirements of section 9. When an institution does not respond to a request within the 30-day or extended period, it is deemed to have refused access to the requested records under subsection 10(3).

[3]      Nevertheless, the institution is still required to provide a response to the access request.

What is a response?

[4]      The response must be in writing and indicate whether the institution is giving access to any or part of the requested records.

  • When the response indicates that the institution has given access to the records or part of them, the institution must provide access to those records.
  • When the response indicates that the institution has denied access to the records or part of them, the institution must explain that the records do not exist or that the institution has exempted them, or part of them, under a specific provision, which the institution must name.

[5]      In specific circumstances, the institution may refuse to confirm or deny in its response whether records exist under subsection 10(2).

Did the institution respond within the time limits?

[6]      DND received the access request on April 19, 2022, and neither extended the period within which it had to respond to the request under subsection 9(1) nor transferred the request. Instead, DND informed the complainant on June 21, 2022, that it was refusing to process the access request as it did not believe it met the requirements of section 6 of the Act.

[7]      When an institution refuses to process a request under the Act, it bears the burden of showing that it is justified.

Section 6: Request for Access to a Record

[8]      Section 6 of the Act requires that a request for access to a record under the Act be made in writing to the government institution that has control of the record and shall provide, “…sufficient detail to enable an experienced employee of the institution to identify the record with a reasonable effort.”

Is DND justified in refusing access pursuant to section 6 of the Act?

[9]       The requester sought:

For the period beginning July 1, 2019 and ending on the date of the processing of this request, the following records, whether physical or electronic, in respect of all "strategic communications campaign[s]”, [including one cited in an article appearing in the Royal Canadian Air Force Journal – annexed to the request], that have been or are being used in respect of or in response to “negative perceptions” about the procurement of drones or for any other reason related to managing perceptions about drones since July 1, 2019:

1) The definition of "strategic communications" which informed the creation of the campaign cited [within the article];

2) A list of, or records sufficient to identify, the “negative perceptions”, opinions, sentiments or statements that have been identified by the institution or brought to the institution’s attention and in respect of which the “campaign[s]” have been or are being engaged;

3) The date on which the Minister of National Defence was first advised or otherwise briefed about the existence of the “campaign” cited [within the article];

4) The date on which the institution informed the Department of Justice of the “campaign” cited [within the article];

5) The date on which a legal opinion from the Department of Justice was obtained in respect of the legality of the campaign cited [within the article];

6) The full name, rank, and position held by the most senior official at the institution tasked with or responsible for the administration of the campaign[s]";

7) Records setting out the duties and tasks assumed by or assigned to [the author of the article] in respect of any one or more than one of such “campaign[s]”.

[10]    The complainant alleges that the request was clear, and did not require clarification. Further, the complainant deliberately chose to use the wording used in the article annexed to the access request.

[11]    DND alleges that the complainant verbally requested to rescope the request to include all strategic communication campaigns, an allegation the complainant denies. The OIC has not been provided with any evidence of a rescoping of the request, and in the absence of such will analyze the request as written.

[12]    DND alleges that no clear records were requested as the complainant wanted “strategic communications campaign(s)” without a specific target or medium, that “a ‘strategic communications campaign’ could be broadly interpreted to include anything and everything”.

[13]    I am of the view that a request will generally be considered to provide “sufficient detail to enable an experienced employee of the institution to identify the record with a reasonable effort” if there is a timeframe and a subject. On its face, this request seeks specific records on strategic communications campaigns in relation to drones, since 2019, and as such includes a timeframe and a subject.

[14]    DND also alleges that the request was more appropriate as an inquiry to the author of a Royal Canadian Air Force (RCAF) Journal article cited in the request, as they believe that the complainant seemed to want the article author’s definitions.

[15]    I am of the view that the wording of the access request does not indicate that the complainant is seeking the RCAF Journal article author’s definitions.

[16]    DND also alleges that the complainant did not provide sufficient detail to enable an experienced government employee to identify the records with a reasonable effort as the strategic communications plan mentioned in the cited text has not been implemented within the DND or the Canadian Armed Forces (CAF). As such, DND alleges that it would be impossible to task this request to an Office of Primary Interest (OPI).

[17]    DND alleges that Parts 1 and 3-7 of the request are related specifically to a hypothetical strategic communications plan that was a theoretical construct in a student paper, and as such it did not fall under the purview of the department.

[18]    I am of the view that Parts 6 and 7 of the request remain fully independent of the strategic communications plan cited in the RCAF Journal article, and that these parts of the request relate to all strategic communications campaigns related to managing perceptions about drones since July 1, 2019. Further, while the statement in the article that “a procurement program will have to involve a very effective strategic communications campaign so that negative perceptions do not hinder the modernization of CAF” may relate to a theoretical strategic communication campaign, it does not rule out the existence of such a campaign. If such a campaign existed, it would certainly fall under the purview of the department.

[19]    I am of the view that only a relevant OPI would have the subject matter expertise to determine whether the strategic communications campaign cited in the reference text has been implemented within DND or the CAF. As such, that OPI could have been tasked with the retrieval of responsive records that were specific to the cited text, and could have returned a Nil response if there were no responsive records.

[20]    DND further alleges that Part 2 of the request relates to a citation in the RCAF Journal article of an academic paper published by Queen’s University, that is not available within DND/CAF.

[21]    I am of the view that Part 2 of the request clearly relates to records sufficient to identify the “negative perceptions” that have been identified by or brought to the attention of DND/CAF in relation to strategic communications campaigns about drones. There is no indication that these records have any relationship to Queen’s University or the academic paper cited in the RCAF Journal article.

[22]    For the reasons set out above, I am satisfied that the request meets the requirements of section 6 of the Act and that, as a result, DND should have been able to process the request without the need for clarification. As such, the legislated due date to respond remains May 19, 2022. Consequently, the letter sent to the complainant on June 21, 2022, does not constitute a valid response to the request pursuant to section 7, and DND is in a state of deemed refusal pursuant to subsection 10(3).

Result

[23]    The complaint is well founded.

Order

Under subsection 36.1(1) of the Act, I order the Minister of National Defence to provide a complete response to the access request on the 36th business day following the date of the final report.

On February 14, 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.

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