National Defence (Re), 2024 OIC 06

Date: 2024-02-29
OIC file number: 3218-00180
Institution file number: A-2016-01081

Summary

The complainant alleged that National Defence (DND), when responding to a request under the Access to Information Act, had improperly withheld information under subsections 15(1) [international affairs and national security] and 19(1) [personal information].  The request was for historical information regarding the Intelligence Advisory Committee.

The investigation determined that the withheld information did not meet the requirements of both subsections 15(1) and 19(1). As a result, the institution undertook a re-review of the exemptions and undertook two (2) separate supplementary responses in which additional information, previously withheld, was disclosed to the complainant.

Following the institution’s second supplementary response, the complainant narrowed the scope of their complaint to only the institution’s reliance on subsection 15(1) on several specific pages of responsive records.

The institution has subsequently proposed a third supplementary response to the complainant in which they have agreed to disclose additional information previously withheld, however, portions would still remain exempt pursuant to subsection 15(1).

The Information Commissioner concluded that the remaining withheld information does not meet the requirements of subsection 15(1), particularly with regard to the issue of harm since the injury that may result in disclosing the information is not apparent.

The Commissioner recommended that DND disclose all of the information that remains withheld under subsection 15(1).

The institution gave notice to the Commissioner that it would not be implementing her recommendation.

The complaint is well-founded.

Complaint

[1]      The complainant alleges that National Defence (DND) had improperly withheld information under subsections 15(1) and 19(1) of the Access to Information Act in response to an access request for records pertaining to the Intelligence Advisory Committee. The complaint falls within paragraph 30(1) of the Act.

[2]      During the course of the investigation, the complainant narrowed the scope of his complaint to only the information exempted under subsection 15(1) on pages 4 and 6-20 of the responsive records.

Investigation

[3]      When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.

[4]      On June 15, 2023 and October 27, 2023 respectively, DND issued supplementary responses to the complainant in which additional information, previously withheld, was disclosed.

[5]      DND has proposed to the Office of the Information Commissioner (OIC) a third supplementary response to the complainant. However, DND maintains the application of subsection 15(1) to some information found on pages 6, 7, 9-14, 17, 18 and 20.

Subsection 15(1): international affairs, national security

[6]      Subsection 15(1) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the conduct of international affairs, defence or national security (for example, information related to military tactics, weapons capabilities or diplomatic correspondence, as set out in paragraphs 15(1)(a) to (i)).

[7]      To claim this exemption, institutions must show the following:

• Disclosing the information could harm one of the following:
• the conduct of international affairs;
• the defence of Canada or any state with which Canada has an alliance or treaty, or any state with which Canada is linked, as defined in subsection 15(2); or
• the detection, prevention or suppression of specific subversive or hostile activities, as defined in subsection 15(2).
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[8]      When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[9]      Pages 6-20 of the responsive records consist of a consolidated index of Intelligence Advisory Committee documents from 1991, including Current Intelligence Notes (CIN), Special Intelligence Reports (SIR), and Intelligence Assessments (IA), organized by country or area of interest. DND has already disclosed, and has agreed to disclose, considerable information. However, DND continues to withhold portions of information contained on pages 6, 7, 9-14, 17, 18 and 20.

[10]    DND has relied, in part, on recommendations obtained through consultations with both Global Affairs Canada and the Privy Council Office in maintaining the exemptions on the remaining information.

[11]    DND submits that disclosure of the information at issue, particularly the disclosure of the “Country or Area of Interest/Title”, would reveal possible covert intelligence activities, which would be a contravention of the Security of Information Act. Further, it argues that any disclosure would be injurious to bilateral relations with other nations and affect Canada’s intelligence gathering capability. DND added that specific information in the titles could also reveal the source of the information contained in the documents.

[12]    In the matter of Bronskill v. Canada (Canadian Heritage), 2011 FC 983, the Court asserted that in order for subsection 15(1) to apply, the institution cannot rely on an umbrella rationale and that there must be a direct relationship between disclosure and an alleged injury.

[13]    Based on a review of the records and DND’s representations, the injury resulting from disclosure is not apparent, particularly considering that the record at issue contains only the titles, document numbers and dates and does not reveal the content of the reports in question. DND did not provide any evidence that the redacted titles have any ongoing operational relevance or that confirmation of covert operations could be determined from the redacted information. Likewise, DND offered no detail to support its claim that bilateral operations could be negatively impacted by disclosure, nor what the specific injury would be.

[14]    In addition, the covering letter that accompanies the index indicates that the classification applicable to individual items is not identified in the index, which was shared with contacts in each of our Five Eyes partners, as well as approximately 30 different Canadian government departments and agencies.

[15]    Finally, similar titles and/or areas of interest have already been disclosed through other access requests, for example, in the IAC 1991 Minutes.

[16]    Given all of the above, I am not satisfied that the disclosure of the remaining information could reasonably be expected to result in a harm described in subsection 15(1).

[17]    As a result, I find that DND did not fulfil its burden of demonstrating that the entirety of the remaining information at issue meets the requirements of the exemption.

Did the institution reasonably exercise its discretion to decide whether to release the information?

[18]    The investigation determined that since the remaining redacted information does not meet the requirements of the exemption, the examination of DND’s exercise of discretion is not necessary.

Outcome

[19]    The complaint is well founded.

Recommendation

I recommend that the Minister of National Defence:

1. In addition to the information DND has already agreed to disclose as part of a third supplementary response, disclose pages 4, 6-20 in their entirety no later than 10 business days after the date the Minister receives the Final Report.

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

On February 14, 2024, I issued my initial report to the Minister of National Defence setting out my recommendation.

On February 14, 2024, the Chief of Operations, Directorate Access to Information and Privacy, gave me notice that DND disagrees with my findings and would maintain the redactions under subsection 15(1) on the information that remains withheld from release.

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. 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.