National Defence (Re), 2024 OIC 21
Date: 2024-04-29
OIC file number: 5819-05387
Access request number: A-2018-00348
Summary
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 finished intelligence assessments produced by J2Director Strategic Intelligence (J2 DSI) organization dealing with Iraq during the period 1 January 2020 to 31 December 2003. The allegation falls within paragraph 30(1)(a) of the Act.
The investigation determined that the Offices of Primary Interest did not retrieve all relevant records when they were tasked to do so. DND was unable to show that it conducted a reasonable search for records responsive to the access request. The Office of the Information Commissioner asked DND to conduct a second search for all relevant records. As a result, three additional records were located.
The Information Commissioner ordered that DND provide a new response to the access request on the 36th business day following 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 the National Defence (DND) did not conduct a reasonable search under the Access to Information Act when responding to an access request seeking all finished intelligence assessments produced by J2Director Strategic Intelligence (J2 DSI) organization dealing with Iraq during the period 1 January 2020 to 31 December 2003, finished intelligence assessments. The allegation falls within paragraph 30(1)(a) of the Act.
[2] The Office of the Information Commissioner (OIC) is separately investigating the complainant’s allegation that DND improperly withheld information under subsection 13(1) and subsection 15(1) in response to the same request.
Investigation
[3] 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.
[4] 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.
[5] This search does not need 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?
[6] On October 4, 2023, the OIC requested DND’s representations on the reasonableness of the search conducted to locate all responsive records. The OIC requested that DND provide its representations by November 2, 2023. The OIC extended this due date to November 16, 2023. No representations were received.
[7] On December 7, 2023, a further request for representations was sent to DND regarding the search for records. The OIC requested that DND provide a response by January 11, 2024. The OIC extended this due date to February 12, 2024. Again, DND failed to provide the requested representations.
[8] On February 1, 2024, DND advised the OIC that the analyst assigned to the OIC complaint file is working on a more pressing matter, and that they are unable to provide an estimated date to provide the requested representations.
[9] To date, DND has not provided any representations regarding how it conducted its search for records.
[10] In the complainant’s representations to the OIC, they submitted that the following documents are missing from DND’s response to the request, at a minimum:
- DND Int Assessment 2002-08-29 - Iraq-Access to Smallpox
- DND Int Assessment 2003-01-03 - Iraq-Biological Warfare Agents
- DND Int Assessment 2003-02-26 - Iraq-More Missing Pieces
[11] As such, based on the evidence before me, I conclude that DND did not conduct a reasonable search for responsive records when it responded to the request.
Outcome
[12] The complaint is well founded.
Orders and recommendations
I order the Minister of National Defence to:
- Complete the retrieval of all records responsive to the request, which would include tasking the relevant individuals or Offices of Primary Interest with conducting a secondary search for responsive records, including but not limited to the following documents:
- DND Int Assessment 2002-08-29 - Iraq-Access to Smallpox
- DND Int Assessment 2003-01-03 - Iraq-Biological Warfare Agents
- DND Int Assessment 2003-02-26 - Iraq-More Missing Pieces
- Process all additional pages of records located as a result of the secondary search. If the above listed documents are not located, provide an explanation in the response to the complainant.
- 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).
- Provide a new response to the access request on the 36th business day following the date of the final report.
Initial report and notice from institution
On March 25, 2024, I issued my initial report to the Minister of National Defence setting out my orders.
Institution will implement orders
On April 23, 2024, the Chief of Operations, Directorate Access to Information and Privacy, gave me notice that DND would be implementing my orders. More specifically, it was confirmed that a new search was conducted, that the additional three records were found, which DND would process and provide by the 36th business day following the date of the final report.
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, the order(s) takes effect on the 36th business day after the date of this report.