National Defence (Re), 2024 OIC 04

Date: 2024-02-12

OIC file number: 5822-07345

Institution file number: A-2022-01483

Summary

The complainant alleged that National Defence did not conduct a reasonable search in response to an access request under the Access to Information Act for all documents related to a selection process of Steward/Command Master Sailor to the Commander of the Royal Canadian Navy. The complaint falls within paragraph 30(1)(a) of the Act.

The investigation determined that not all relevant Offices of Primary Interest were tasked with retrieval of responsive records. In addition, the taskings were not clear and did not include all pertinent keywords. National Defence was unable to show that it conducted a reasonable search for records that fell within the scope of the access request.

The Information Commissioner ordered that National Defence complete the retrieval of all records responsive to the request, which would include tasking specified individuals and provide a new response to the access request no later than the 36th business day following the date of the final report.

National Defence 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 conduct a reasonable search in response to an access request under the Access to Information Act for all documents related to a selection process of Steward/Command Master Sailor to the Commander of the Royal Canadian Navy. 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 access officials told the Office of the Information Commissioner (OIC) that the two program areas tasked with searching for relevant records, Chief Military Personnel (CMP) and Royal Canadian Navy (RCN), found no relevant records after a search through their Outlook system as well as their “DAWN” database.

[6]     Based on representations from the complainant, the OIC was not convinced that no records existed in response to the request. The OIC requested that DND re-task the two program areas and asked that they use the following keywords:

• Selection Process
• Steward
• Command
• Command master
• Command master sailor
• Command master sailor to the commander
• Command master sailor to the commander of the RCN
• Commander RCN
• Commander RCN Steward
• Command master sailor to the commander of the Royal Canadian Navy
• Steward Career Manager

[7]     In addition, the OIC asked that five named individuals be tasked.

[8]     DND’s access officials re-tasked the two program areas as well as one individual, who found no relevant records. However, it does not appear that any of the other named individuals that the OIC asked DND to task were in fact tasked. Further, the tasking was not for the date range specified in the access request.

[9]     When the OIC raised these issues with DND, it ultimately found and provided seven pages of emails to the complainant on June 29, 2023.

[10]     Due to the lack of clarity regarding DND’s searches, the OIC was still not satisfied that a reasonable search had been completed, and further representations were requested from DND on July 19, 2023. On August 17, 2023, DND responded that all relevant records were provided.

[11]     Despite DND’s representations that all relevant records have been retrieved and released, on August 28, 2023, DND confirmed that more records did, in fact, exist. A supplementary disclosure containing these records has yet to be provided to the complainant by DND. Several follow-ups were made with DND, namely on August 28, 2023, September 11, 2023, September 19, 2023, September 25, 2023, October 4, 2023, and October 10, 2023. To date, DND has not issued a supplementary response. DND’s lack of responsiveness is troubling and in clear violation of their obligations under the Act to provide complete, accurate and timely responses.

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

Outcome

[13]     The complaint is well founded.

Order

I order the Minister of National Defence to:

1. Complete the retrieval of all records responsive to the request, which would include tasking the individuals named in this report, or otherwise, provide a confirmation that these individuals were already tasked to search for the responsive records.
2. Process all additional pages of records located as a result of the additional searches.
3. Provide a new response to the access request no later than the 36th business day following the date of the final report.
4. 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).

Initial report and notice from institution

On January 8, 2024, I issued my initial report to the Minister setting out my orders.

On February 1, 2024, DND gave me notice that it was working towards another subsequent response for the documents found relevant to the access request on August 28, 2023. DND advised that this subsequent response would be provided within the next two weeks. As a result of the initial report, DND also conducted a further search for records, and confirmed that no additional records could be found. The five individuals listed in the initial report were all re-tasked, as well as the program area (CMP) using the suggested keywords.

Review by Federal Court

When an allegation in a complaint falls under 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. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. Whoever applies for a review must do so 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 this deadline, this order takes effect on the 36th business day after the date of this report.