National Defence (Re), 2024 OIC 54
Date: 2024-08-06
OIC file number: 5823-01054
Access request number: A-2022-02160
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 all documentation relative to the unidentified object shot down in Yukon Canadian airspace on 11th February 2023 and for the unidentified object shot down over Lake Huron near Canadian airspace on 12th February 2023. 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 DND provide a complete response to the access request no later than the 36th business day following the date of the final report. The Commissioner also made two recommendations: that DND develop proper processes and procedures to ensure that DND Offices of Primary Interest will abide to their responsibilities to provide responsive records in a timely fashion to their access officials and that DND develop performance indicators to hold its senior officials accountable for delays in providing responsive records to their access officials.
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:
[2] Unidentified object shot down in Yukon Canadian airspace on 11th February 2023 and for the unidentified object shot down over Lake Huron near Canadian airspace on 12th February 2023: All the documentation relative to the unidentified objects shot down mission, recovery effort and debris analysis. The documents requested are: e-mail exchanges relative to the objects, photos of the objects in the air and on the ground, photos of the debris, photos of the recovery mission, reports about the shot down mission, reports about the recovery mission and its status, reports and analysis of the debris found by the recovery mission.
[3] The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
Time limits for responding to access requests
[4] 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).
[5] Nevertheless, the institution is still required to provide a response to the access request.
What is a response?
[6] 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.
[7] 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?
[8] DND received the access request on March 16, 2023. DND did not extend the period within which it had to respond under subsection 9(1), nor transferred the request, which means that the time limit in section 7 still applied, making the due date to respond April 17, 2023.
[9] 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 legislated period. DND is deemed to have refused access to the requested records under subsection 10(3).
[10] According to representations provided by DND, two Offices of Primary Interest (OPIs) were tasked on March 16, 2023, to retrieve responsive records, the Royal Canadian Airforce (RCAF) and Canadian Forces Intelligence Command (CFINTCOM). To date, RCAF has provided an incomplete set of responsive records and CFINTCOM has not, as of yet, returned any records. DND’s Departmental Access to Information and Privacy (DAIP) office is, therefore, unaware of the total volume of responsive records or whether any consultations may be required before responding to the request. As such, DAIP was not in a position to provide the Office of the Information Commissioner a date for the return of responsive records nor has a date been set for the processing or release of records.
[11] I find the delay taken by RCAF and CFINTCOM to retrieve all relevant records unacceptable. The lack of responsiveness from both RCAF and CFINTCOM 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. DAIP is not the only one responsible in ensuring that the Act is respected; it is a departmental and collective responsibility. I urge the Minister to remind his public officials, as well as military personnel, of their responsibility in providing timely access to information to Canadians.
[12] 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.
[13] 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
[14] The complaint is well founded.
Order and Recommendations
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.
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 June 27, 2024, I issued my initial report to the Minister setting out my order and recommendations.
On August 2, 2024, the Acting Chief of Operations of DAIP 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.