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Library and Archives Canada (Re), 2025 OIC 60

Date: 2025-12-03
OIC file number: 5822-07254
Access request number: A-2018-01094

Summary

The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under subsection 13(1) (confidential information from government bodies) and subsection 15(1) (international affairs, national security, defence) of the Access to Information Act in response to an access request for Joint Intelligence Committee Intelligence for the North American Aerospace Defense Command (NORAD) [1958-63].

During the investigation, LAC provided two supplementary releases to the complainant; however, LAC maintained some exemptions on the basis that the information was provided to Canada in confidence by NORAD.

The Office of the Information Commissioner concluded that, for the purposes of paragraph 13(1)(b), NORAD is an international organization of states or an institution thereof.

The complaint is well founded, because not all of the information LAC exempted under subsection 13(1) and subsection 15(1) when it originally responded to the access request met the requirements of the exemptions.

An order is not necessary, however, since LAC subsequently disclosed some information that was previously exempted and since the remaining withheld information meets the requirements of subsection 13(1).

Complaint

[1]The complainant alleged that Library and Archives Canada (LAC) had improperly withheld information under subsection 13(1) (confidential information from government bodies) and subsection 15(1) (international affairs, national security, defence) of the Access to Information Act in response to an access request for RG25 Vol. 7955 File 50028-CY-40 - JIC Intelligence for NORAD [1958-63]. The allegation falls within paragraph 30(1)(a) of the Act.

Investigation

[2]When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.

[3]During the investigation, the complainant decided they were no longer interested in challenging the application of subsection 15(1) to information on page 132 of the responsive records.

[4]The Office of the Information Commissioner (OIC) was not convinced that all of the exemptions had been properly applied in all instances. LAC conceded and, as a result, on November 1, 2023, following a re-review of the records, LAC provided a supplementary release to the complainant releasing some information which it had previously withheld under subsection 13(1) and subsection 15(1) on pages 50-52, 73, and 96-122 of the responsive records.

[5]Despite this supplementary disclosure, the OIC was still not convinced that the remaining exemptions had all been properly applied in all instances. As a result, on July 16, 2025, following a second re-review of the records, LAC conceded and provided a second supplementary release to the complainant releasing additional information which it had previously withheld under subsection 13(1) and subsection 15(1) on pages 140, 141, 142, and 143 of the responsive records.

[6]The complainant informed the OIC that they were not satisfied with the supplementary disclosures.

[7]The OIC’s analysis of the remaining exemptions at issue follows:

Subsection 13(1): confidential information from government bodies

[8]Subsection 13(1) requires institutions to refuse to disclose information obtained in confidence from certain government bodies.

[9]To claim this exemption, institutions must show the following:

  • The information was obtained from one of the following government bodies:
  • a government of a foreign state or an institution of a foreign state;
  • an international organization of states or an institution of such an organization;
  • a provincial government or institution;
  • a municipal or regional government or institution; or
  • an aboriginal government or council listed in subsection 13(3).
  • The information was obtained from the government body in confidence—that is, with the understanding that it would be treated as confidential.

[10]When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 13(2)) exist:

  • The government body from which the information was obtained consents to its disclosure.
  • That body has already made the information public.

[11]When one or both of these circumstances exist, subsection 13(2) requires them to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[12]LAC maintains the application of subsection 13(1) to the following information: 

Information Obtained from a Foreign State

[13]LAC maintains the application of paragraph 13(1)(a) to information on pages 153, 154, 155, 174, and 175 of the responsive records.

[14]LAC represented that the information consisted of correspondence between the North American Aerospace Defense Command (NORAD) and the Joint Intelligence Committee (JIC) that reveals the content of information from a foreign state.

[15]The OIC reviewed the records and is satisfied that the information was obtained from a foreign state.

[16]The OIC noted the classification markings on each page at issue, indicating that the records were received in confidence. In addition, LAC confirmed the context in which this information was obtained. Therefore, the OIC is satisfied that the information was obtained in confidence—that is, with the understanding that it would be treated as confidential.

Information Obtained from an International Organization of States or an Institution thereof

[17]LAC maintains the application of paragraph 13(1)(b) to information on pages 15, 16, 18, 19, 22, 23, 24, 26, 27, 28, 41, 44, 48, 51, 55, 56, 57, 58, 59, 60, 88, 89, 161, 162, 163, 164, and 168 of the responsive records.

[18]LAC represented that the information was prepared by NORAD, an international organization of states or an institution thereof, in confidence.

[19]The complainant was of the view that information from NORAD, which is a bi-national Canada and United States organization, should not be treated as information from an international organization or from a foreign government, and therefore should not be subject to subsection 13(1).

[20]LAC represented that NORAD, although bi-national, is a distinct legal body jointly created and governed by Canada and the United States for the purpose of fulfilling a shared international mandate. Accordingly, LAC submitted that NORAD should be recognized as an international — not domestic — organization, and thus information created by NORAD should be considered as originating from an international organization and protected under subsection 13(1)(b).

[21]In assessing this issue, the OIC considered the meaning of “international organization of states”. The Act does not define this term, and it has not been judicially interpreted. Therefore, its meaning must be informed by the ordinary and grammatical sense of the words, read in light of their statutory context and the purpose of section 13.

[22]The plain-meaning interpretation of the phrase—supported by French and English dictionary definitions—indicates that an “international organization of states” refers to a group of two or more sovereign states, or their authorities, that work together on a shared purpose in a continuing way. Nothing in the ordinary meaning of the phrase requires that such an organization be multilateral rather than bilateral, nor that it be independent of its member states; instead, the essential feature is that two or more states join together to pursue a common, continuing international objective.

[23]The contextual analysis within subsection 13(1) supports this interpretation. All other parts of paragraph 13(1) refer to bodies that are legally distinct from the federal government of Canada—foreign governments, provincial and municipal governments, aboriginal governments, and institutions of those governments. Interpreting paragraph 13(1)(b) consistently with these adjacent provisions suggests that an “international organization of states” must likewise be a distinct legal entity from the federal government of Canada, created by or through an international legal instrument.

[24]During the investigation, the OIC examined NORAD’s legal foundation. NORAD was established in 1958 by a bilateral agreement between Canada and the United States, and that agreement has been repeatedly updated, including in 1968 and 2006. These agreements set out the obligations and roles of each state and create NORAD as a distinct, treaty-based binational command with a shared, continuing mission. International organizations of states are generally created through treaties or international agreements that define the obligations of the member states. NORAD fits squarely within this structure: it is a distinct body created by an international legal instrument, authorized to act on behalf of both member states.

[25]Accordingly, the OIC is satisfied that NORAD constitutes an international organization of states or an institution thereof for the purposes of paragraph 13(1)(b). The OIC is further satisfied, based on the classification markings on the pages at issue, that the information was obtained from NORAD in confidence, with the clear expectation that it would be treated as confidential.

[26]In light of the above, the OIC concludes that the remaining withheld information meets the requirements of paragraphs 13(1)(a) and (b).

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[27]Since the information meets the requirements of subsection 13(1), LAC was required to reasonably exercise its discretion under subsection 13(2) to decide whether to disclose the information when one or both of the circumstances described in subsection 13(2) existed when it responded to the access request.

[28]LAC provided representations stating that they had conducted open-source searches and were unable to locate any of the requested information. As part of the investigation, the OIC also conducted extensive searches online, including collections of previously released NORAD records. While information surrounding the circumstances of the records could be found online, the records themselves or specific information therein could not be located in open-source materials.

[29]LAC provided representations showing why it was not reasonable to seek consent for disclosure from the foreign government and from the international organization in these circumstances. The OIC notes that the records deal with sensitive topics related to defence, such as documents discussing missile defence, nuclear weapons, and intelligence information concerning foreign powers. Given the classification and origin of this information, the OIC is satisfied that it would not be reasonable to believe that the foreign government would consent to the release of this information.

[30]In light of the above, the OIC concludes that the circumstances set out in subsection 13(2) did not exist when LAC responded to the access request. Therefore, there is no need to examine the issue of discretion.

[31]Since the information meets the requirements of subsection 13(1), the OIC did not examine LAC’s application of subsection 15(1) to some of the same information.

Outcome

[32]The complaint is well founded, because not all of the information LAC exempted under subsection 13(1) and subsection 15(1), when it originally responded to the access request met the requirements of the exemptions.

[33]An order is not necessary, however, since LAC subsequently disclosed some information that was previously exempted and since the remaining withheld information meets the requirements of subsection 13(1).

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. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.

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