National Defence (Re), 2024 OIC 16
Date: 2024-04-22
OIC file number: 5823-03789
Institution file number: A-2023-01676
Summary
The complainant alleged that National Defence (DND) did not respond to an access request submitted under the Access to Information Act within the 30-day period, as required by section 7. The request was for information relating to flights of Canadian government owned planes which landed in Lebanon. The allegation falls under paragraph 30(1)(a) of the Act.
The investigation determined DND did not respond by the required date and is deemed to have refused access to the requested records under subsection 10(3). The delay was caused by a lack of responsiveness from a number of offices of primary interest.
The Information Commissioner ordered that DND provide a complete response to the access request no later than 60 business days after the date of the final report.
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 within the 30‑day period set out in section 7 of the Access to Information Act. The request was for all emails, reports, briefing notes, flight logs and cargo manifest for all flights of Canadian government owned planes which landed in Lebanon; Cargo, expressed purpose of flight and where the planes next landed after leaving Lebanese airspace; Emails between National Defense and Global Affairs / Foreign Affairs and Officials of the Lebanese government regarding any such flights are of particular interest (from 2023-10-07 to 2023-12-05).
[2] The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
Time limits for responding to access requests
[3] 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).
[4] Nevertheless, the institution is still required to provide a response to the access request.
What is a response?
[5] 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.
[6] 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?
[7] DND received the access request on December 5, 2023, but neither extended the period within which it had to respond to the request under subsection 9(1) nor transferred the request. This means that the 30-day period under section 7 still applied, making the time limit to respond January 4, 2024.
[8] DND did not respond to the access request by this date. I conclude, therefore, that DND is deemed to have refused access to the requested records under subsection 10(3).
[9] According to representations provided by DND over the course of the investigation, four Offices of Primary Interest (OPIs) were tasked for the relevant records – Canadian Special Operation Forces Command (CANSOFCOM), Canadian Joint Operations Command (CJOC), Royal Canadian Air Force (RCAF) and Strategic Joint Staff (SJS).
[10] CANSOFCOM and SJS responded to the records retrieval – SJS with a nil response. CANSOFCOM provided 360 pages of records which have been triaged. To date, RCAF and CJOC had not responded to the tasking. As such, DND’s Directorate of Access to Information and Privacy (DAIP) has been unable to advance the processing of the request.
[11] DND informed the Office of the Information Commissioner (OIC) that RCAF is to respond by the end of March 2024, and that consultations would likely be required.
[12] DND was unable to provide a date by which it would respond to the access request.
[13] I find the delay taken by the OPIs to retrieve all relevant records unacceptable. The lack of responsiveness from RCAF and CJOC has affected DND’s ability to meet its obligation to ensure that this access request was responded to in accordance with the requirements of the Act. The Minister should remind his public officials of their responsibility in providing timely access to information to Canadians. DND’s DAIP is not the only unit responsible for ensuring that the Act is respected; it is a departmental and collective responsibility. It is up to the head of the institution, here the Minister of National Defence, to ensure that this is understood and respected within the institution.
[14] Any additional time that is taken to respond to this request is another day by which the complainant’s rights of access are being denied. This lack of responsiveness is in clear contravention of DND’s obligations under the Act and undermines the credibility of the access system.
[15] Considering the length of time that the response to the access request has been outstanding and DND’s responsibility to provide the complainant with a timely response, I find that DND must respond to the request without undue delay.
Outcome
[16] The complaint is well founded.
Order
I order the Minister of National Defence to provide a complete response to the access request no later than 60 business days after the date of the final report.
Initial report and notice from institution
On March 8, 2024, I issued my initial report to the Minister of National Defence setting out my order.
Institution will implement orders
On April 16, 2024, the Chief of Operations, Directorate Access to Information and Privacy, gave me notice that DND would be implementing my order.
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.