National Defence (Re), 2024 OIC 31
Date: 2024-06-11
OIC file number: 5823-02552
Access request number: A-2023-01037
Summary
The complainant alleged that National Defence 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 documents relating to the course of action of Operation Aegis. The allegation falls under paragraph 30(1)(a) of the Act.
The Information Commissioner concluded that National Defence did not meet its obligation to respond within the 30-day period and that it is deemed to have refused access to the requested records pursuant to subsection 10(3). The Information Commissioner found that the delay taken by the Office of Primary Interest, Canadian Forces Intelligence Command, to retrieve all relevant records was unacceptable.
The Information Commissioner ordered the Minister of National Defence to provide a complete response to the access request no later than the 60th business day following the date of the final report.
The Information Commissioner recommended that the Minister of National Defence develop proper processes and procedures to ensure that National Defence’s Offices of Primary Interest will abide to their responsibilities to provide responsive records in a timely fashion to the Directorate Access to Information and Privacy.
The Information Commissioner also recommended that the Minister of National Defence develop performance indicators to hold its senior officials accountable for delays in providing responsive records to the Directorate Access to Information and Privacy.
The Information Commissioner was notified that National Defence would not be providing a response by the date set out in the order, further stating that National Defence would be initiating judicial proceedings once the final report was issued.
The complaint it 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 documents relating to the course of action of Operation Aegis. The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
Time limits for responding to access requests
[2] 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).
[3] Nevertheless, the institution is still required to provide a response to the access request.
What is a response?
[4] 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.
[5] 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?
[6] DND received this access request on September 1, 2023, but neither extended the period within it had to respond to the request under paragraphs 9(1)(a), (b) and/or (c) nor transferred the request. This means that the 30-day period under section 7 still applied, making the time limit to respond October 1, 2023.
[7] DND did not respond to the access request by this date. I conclude, therefore, that DND did not meet its obligation to respond within the 30-day period. DND is deemed to have refused access to the requested records under subsection 10(3).
[8] According to the Departmental Access to Information and Privacy (DAIP) office, the responsive records from two of the three Offices of Privacy Interest (OPIs) tasked with retrieving relevant records, which totals 286 pages, have been received. DAIP determined that consultations on an unknown number of pages will be required with Global Affairs Canada, and with Immigration, Refugee and Citizenship Canada. Consultations have not been initiated to date, pending DAIP receiving all responsive records from the third OPI.
[9] DAIP further represented that the responsive records from the third OPI, Canadian Forces Intelligence Command (CFINTCOM), remain outstanding to date. Despite weekly follow ups with CFINTCOM for the outstanding records, on April 10, 2024, CFINTCOM informed DAIP that the delay in responding was due to a misunderstanding of the scope of the request.
[10] I find the delay taken by OPI CFINTCOM to retrieve all relevant records unacceptable. The lack of responsiveness from the OPIs 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. The DAIP unit is not the only one responsible in 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.
[11] Considering these points, and how long the response to the access request has been outstanding, I find that DND must issue the response without delay.
Outcome
[12] The complaint is well founded.
Orders and Recommendations
I order the Minister of National Defence to provide a complete response to the access request no later than the 60th business day following the date of the final report.
I recommend that the Minister of National Defence develop proper processes and procedures to ensure that DND OPIs will abide to their responsibilities to provide responsive records in a timely fashion to DAIP.
I also recommend that the Minister of National Defence develop performance indicators to hold its senior officials accountable for delays in providing responsive records to DAIP.
Initial report and notice from institution
On April 24, 2024, I issued my initial report to the Minister setting out my order and recommendations.
On May 24, 2024, the Directorate Access to Information and Privacy’s Chief of Operations gave me notice that DND would not be providing a response by the date set out in the order, further stating that DND would be initiating judicial proceedings once the final report was issued.
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.