National Defence (Re), 2023 OIC 27

Date: 2023-09-28
OIC file numbers: 5822-02031, 5822-02032, 5822-02033 & 5822-02034
Institution file numbers: A-2021-01998, A-2021-02001, A-2021-02003 & A-2021-02004

Summary

The complainant alleged that National Defence did not conduct reasonable searches in response to access requests under the Access to Information Act for records relating to certain contracts. The complaints fall within paragraph 30(1)(a) of the Act.

The investigations determined that National Defence had not attempted to retrieve records in the possession of the third party that National Defence was entitled to obtain under the contract. As a result of the investigations, National Defence contacted the contractor to request copies of the records and retrieved the documents.

The Information Commissioner ordered that National Defence process any additional records located, provide new responses to the complainant that either give access to any additional records or identify why the additional records are not responsive to the request.

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

The complaints are well founded.

Complaint

[1]     The complainant alleged that National Defence (DND) did not conduct reasonable searches in response to access requests under the Access to Information Act for records relating to contracts W6369-21-X008 and W6369-19-X033/A. The complaints fall within paragraph 30(1)(a) of the Act.

Investigation

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

[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]     A 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.

[5]     The Act provides requesters with a right of access to records that are under the control of government institutions. While the Act does not define “control,” the Supreme Court of Canada held that the term should be interpreted broadly and liberally to provide a meaningful right of access. (See Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25. [PM Agenda]    )

[6]     While initially DND had argued the records at issue were not under its control, it has since agreed that they are. There is therefore no need to analyze this issue further.

Did the institution conduct reasonable searches for records?

[7]     During the investigations, my office contacted the complainant in an attempt to obtain any evidence that would support their claim that DND’s searches were unreasonable. In response, the complainant noted that some of the requested records were deliverables in contracts W6369-21-X008 and W6369-19-X033/A, and should therefore be in the possession of DND.

[8]     In addition, my office asked DND to provide details related to the searches for responsive records. DND provided information that indicates that extensive efforts were made to retrieve records from a laptop used by a subject matter expert for the requested records. The laptop had suffered a catastrophic failure and was returned to a Shared Services Canada helpdesk. It is standard procedure to reimage the hard drive when a laptop is returned, and no data was retrievable. Any information stored directly on the device would have been lost. The subject matter expert however should have retained access to any information stored on the Q drive or on email servers.

[9]     Having reviewed the wording of contracts W6369-19-X033/A and W6369-21-X008, I note that the contractor should have provided hard copy and soft copy versions of progress reports to DND at the quarter-, mid- and three-quarter marks of the course.

[10]     After it receives a request, one of the first steps an institution must undertake is to retrieve responsive records. The investigations indicated that DND had not attempted to retrieve responsive records from the contractor. The investigations also revealed that DND had not performed searches of paper records, and had not attempted to retrieve records from the cloud-based platform. Despite evidence that paper records should exist, the Office of Primary Interest, ADM(PA) has stated that there are no paper records to search. This highlights the implications of deficiencies in records management and the impact this may have on the right of access.

[11]     As a result of the OIC’s investigations, on March 27, 2023, DND finally contacted the contractor and requested copies of relevant records. In addition, ADM(PA) has since retrieved documents from the cloud-based platform and has indicated they are in the process of reviewing these records and transferring them to the Directorate Access to Information Privacy.

[12]     In light of the above, I conclude that DND did not conduct reasonable searches, as DND did not attempt to retrieve records under their control from the contractor, and did not attempt to retrieve records from the cloud-based platform.

Result

[13]     The complaints are well founded.

Orders

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

1. Process any additional records that were located as a result of the additional searches.
2. Provide new responses to the complainant once the processing is completed.
3. Give the complainant access to 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, name the provision(s).
4. If none of the additional records are responsive to the request, indicate this in the response.

The Minister must abide by the terms of subsection 37(4) when disclosing any records in response to my orders.

On August 25, 2023, I issued my initial report to the Minister of National Defence setting out my orders.

On September 21, 2023, the Chief of Operations of the Directorate Access to Information and Privacy gave me notice that National Defence 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. If no one applies for a review by these deadlines, this order takes effect on the 36th business day after the date of this report.