National Defence (Re), 2024 OIC 51
Date: 2024-07-30
OIC file number: 5823-02458
Access request number: A-2023-00025
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 the results of Ross Harvey’s (Dr. Ross B. Harvey was a Suffield Experimental Station (SES)/Defence Research Establishment Suffield (DRES) defence scientist from the mid-1950s to the early 1980s who worked extensively in both the Chemical Warfare and Shock and Blast programs) review of these reports. Presumably, he prepared a short summary of his recommendations for each report; and, documents detailing which recommendations were accepted and implemented by DRES management. 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 Information Commissioner ordered that National Defence complete the retrieval of all records responsive to the request and provide a response to the access request no later than the 36th business day following the date of the final report.
National Defence 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
Dr. Ross B. Harvey was a Suffield Experimental Station (SES)/Defence Research Establishment Suffield (DRES) defence scientist from the mid-1950s to the early 1980s who worked extensively in both the Chemical Warfare and Shock and Blast programs. As a result of his breadth of knowledge and expertise, he was brought back to DRES as a contractor following his retirement to address a number of issues confronting DRES and the Chief Research and Development (CRAD) at the time. One of his tasks was to review SES/DRES reports produced from 1941 to 1988 for sensitivity and classification issues, and to recommend changes (downgrades) in classification where appropriate. He was also asked to make recommendations about what severances should be applied to these reports in response to requests under the Access to Information Act (ATIA). The requestor is now seeking the following records in connection with reports from the Shock and Blast program only produced in 1955 or later:
(1) the results of Ross Harvey’s review of these reports. Presumably, he prepared a short summary of his recommendations for each report; and,
(2) documents detailing which recommendations were accepted and implemented by DRES management.
[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 request on April 3, 2023. DND extended the period within which it had to respond under paragraph 9(1)(a) by 120 days, making the time limit to respond August 31, 2023.
[8] DND did not respond to the access request by that date. 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 under subsection 10(3).
[9] According to representations provided by DND over the course of the investigation, on April 5, 2023, Defence Research and Development Canada (DRDC) was the Office of Primary Interest (OPI) tasked to retrieve responsive records. DRDC returned approximately 2,060 pages of relevant records to DND’s Departmental Access to Information and Privacy (DAIP) office on August 8, 2023. The records consist of multiple detailed scientific and technical reports, experiments, trails, memorandum, and other. DAIP is currently reviewing the recommendations from DRDC and is challenging the OPIs recommendations on severances. Due to this continuing discussion between the OPI (DRCD) and DAIP, no date for the processing or release of records has been set.
[10] 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.
[11] 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
[12] 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 36 business days after the date of the final report.
Initial report and notice from institution
On June 26, 2024, I issued my initial report to Minister of National Defence setting out my order.
On July 25, 2024, the acting Deputy Director, Directorate of 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.