National Defence, (Re), 2024 OIC 46
Date: 2024-07-22
OIC file number: 5822-06573
Access request number: A-2022-01549
Summary
The complainant alleged that the extension of time National Defence (DND) took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for information related to military equipment, weaponry and ammunition sent to Ukraine from 2019 to 2022. The allegation falls within paragraph 30(1)(c) of the Act.
During the investigation, the Office of the Information Commissioner (OIC) determined that DND did not show that it met all the requirements of paragraph 9(1)(a). DND was deemed to have refused access to the requested records pursuant to subsection 10(3).
In an effort to assist both the complainant and DND in managing the expectations of completing the request within a reasonable period of time, the OIC contacted the complainant during the investigation regarding a possibility of narrowing the scope of the request. The complainant decided to scope out all email communications, which reduced the number of responsive records by approximately 20,000 pages.
Given the rescoping, DND indicated that could respond to the request within six months. The Commissioner ordered DND to provide a complete response to the access request on or before November 25, 2024.
DND gave notice to the Commissioner that it would be implementing her order.
The complaint is well founded.
Complaint
[1] The complainant alleged that the extension of time National Defence (DND) took under subsection 9(1) of the Access to Information Act to respond to an access request was unreasonable. The request was for correspondence, memos, emails, briefing notes, order group notes, Power Point presentations, indicating military equipment sent to Ukraine; the organization within Ukraine that received military equipment from the National Defence; the amount of ammunition that was sent to Ukraine, categorized by type and calibre; records indicating the location military equipment was provided from within National Defence; records demonstrating the amount of ammunition and weaponry left within the National Defence, all from January 1, 2019, to December 15, 2022.
[2] The allegation falls within paragraph 30(1)(c) of the Act.
Investigation
Extensions of time
[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 period for responding by meeting the requirements of section 9.
[4] The complainant first submitted their request to DND on December 14, 2022. However, the request was framed as a series of questions, and in DND’s view did not meet the requirements of section 6 of the Act. To be valid under section 6, access requests must contain enough information that experienced institutional employees could identify relevant records with a reasonable effort.
[5] Accordingly, DND contacted the complainant to seek clarification, and the complainant submitted an amended request on December 20, 2022. DND tasked the request out to its offices of primary interest (OPIs) that same day.
[6] During the tasking of the request, DND put the request “on hold” on two occasions: once, to confirm whether the complainant would like a finalized list of equipment, and a second time, to inquire whether the complainant wanted an inventory list for every six (6) months.
[7] It appears that DND’s position is that the request was considered actionable on January 4, 2023, the date on which the complainant indicated that they wanted DND to proceed with the request as amended on December 20, 2022.
[8] However, the documentation provided by DND indicates that the request was clear enough to action as of December 20, 2022. Rather, the OPIs’ concerns and questions were related to the breadth of the request and the time that it would take to respond.
[9] I conclude that DND received the request on December 20, 2022, the date on which the complainant provided enough detail in their request to meet the requirements of section 6.
[10] On January 23, 2023, DND extended the period for responding to the request by 3,210 days under paragraphs 9(1)(a) and 9(1)(b). If the extension were reasonable, the time limit for the response would be November 7, 2031.
Paragraph 9(1)(a): extension of time due to volume of records
[11] Paragraph 9(1)(a) allows institutions to extend the 30-day period for responding to an access request when they can show the following:
- the request is for a large number of records or requires searching through a large number of records;
- meeting the 30-day time limit would unreasonably interfere with the institution’s operations; and
- the extension of time is for a reasonable period, having regard to the circumstances.
Did the institution show that it met the requirements of paragraph 9(1)(a)?
Was the access request for a large number of records?
[12] At the outset of the investigation, DND stated that, to date, it retrieved 52,500 pages of records that fall within the scope of the access request, but that records were still outstanding from five OPIs, so the number of relevant records may increase. DND advised that the search for relevant records occurred on multiple networks. DND represented that the broad scope of the access request text does not allow for keyword searches, therefore a line-by-line review of each record will need to be completed to determine whether the record is relevant to the access request.
[13] As such, DND demonstrated that the request is for a large number of records and/or requires a search through a large number of records.
Would meeting the 30-day deadline unreasonably interfere with the institution’s operations?
[14] DND showed that searching for and processing this many records, approximately 52,500 pages, and responding to the access request within 30 days—assuming it were even possible—would have monopolized resources, including those of the program areas. Consequently, completing the necessary work would unreasonably interfere with the institution’s operations.
[15] DND further shared that the OPI, Strategic Joint Staff, consists of three full time employees, who cannot dedicate full time efforts to fulfill this request without significant impact on operations, and must therefore balance their access to information obligations with their role in assisting Canada with operations in Ukraine. DND stated that this OPI would require all three full-time employees to conduct the search for records, which would require approximately one year. DND estimated that it will take four years to complete the search and an additional two years to process the anticipated volume of records.
[16] DND demonstrated that meeting the 30-day deadline would have interfered with its operations.
Is the extension for a reasonable period?
[17] DND stated that several factors were considered in determining the length of the extension taken under paragraph 9(1)(a), that is, 3,150 days.
- Records were still outstanding from five OPIs, so the number of relevant records may increase.
- The search for relevant records required searches through multiple networks.
- The broad scope of the access request text does not allow for keyword searches; therefore, a line-by-line review of each record will need to be completed to determine whether the record is relevant to the access request.
- Processing this request would monopolize resources, including those of the program area (Strategic Joint Staff).
[18] To determine the above timeframes, DND stated that they took their original page count of 52,500 pages and calculated 30 days to work on 500-page sections.
[19] I find that DND did not apply sufficient rigour and logic as part of a serious effort to determine the duration of the extension of time. DND provided no representations on whether they took into consideration duplicates, complexity of records, the classification of the records, whether the records were paper or electronic, what exemptions were anticipated, etc., in the calculation of the time extension. Further, DND advised that the steps in the processing of the request will be done consecutively, rather than concurrently. For example, DND represented that review of the records will not begin until all records have been received from the OPIs.
[20] As such, I conclude that DND did not show that it met all the requirements of paragraph 9(1)(a). As a result, there is no need to examine whether the requirements of paragraph 9(1)(b) were met, as even if those requirements were met, the 60-day extension under paragraph 9(1)(b) would already have expired.
Subsection 10(3): Deemed refusal of access
[21] Under subsection 10(3), when institutions do not respond to an access request within 30 days or by the end of the period for which they validly extended the time they had to respond, they are deemed to have refused access to the requested records.
[22] DND had not responded to the access request when the extension of time under paragraph 9(1)(b) expired. I conclude, therefore, that DND did not meet its obligation to respond to the request within the extended period. DND is deemed to have refused access to the requested records pursuant to subsection 10(3). The issue of whether the extension of time under paragraph 9(1)(b) was reasonable is moot.
[23] In an effort to assist both the complainant and DND in managing the expectations of completing the request within a reasonable period of time, the OIC contacted the complainant during the investigation regarding a possibility of narrowing the scope of the request. As a result, the complainant decided to scope out all email communications, which reduced the number of responsive records by approximately 20,000 pages.
[24] The complainant has further agreed to scope out all information that is not relevant to the amount of ammunition and equipment left within DND. The complainant has confirmed that a single up-to-date holding record of all equipment and ammunition is acceptable, for each individual year from 2019 to 2024.
[25] Given the rescoping of the request, DND indicated on May 24 that it anticipates responding to the request in six months. DND estimates 60 days for retrieval of records by the OPI (Strategic Joint Staff), and four months to conduct consultations with the other government departments
[26] The complainant indicated that they find this proposed date acceptable.
[27] In light of the work that remains to be completed, I find the revised timeline to be reasonable.
Outcome
The complaint is well founded.
Order
I order the Minister of National Defence to provide a complete response to the access request on or before November 25, 2024.
Initial report and notice from institution
On June 17, 2024, I issued my initial report to the Minister setting out my order.
On July 17, 2024, the Acting Chief of Operations for the 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.