National Defence (Re), 2023 OIC 46
Date: 2024-03-13
OIC file number: 5823-01184
Institution file number: A-2022-01926
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 or extended period, as required by section 7. The request was for the total number of requests received for accommodation and exemption from CAF COVID-19 vaccination mandate. The allegation falls under paragraph 30(1)(a) of the Act.
The investigation determined DND had missed the extended due date made under paragraph 9(1)(a) of the Act. DND did not respond by the required date and is deemed to have refused access to the requested records under subsection 10(3). The delay was caused by a lack of responsiveness from one office of primary interest.
The Information Commissioner ordered that DND complete the retrieval of all records responsive to the request, which would include tasking specified individuals and provide a response to the access request no later than the 36th business day following the date of the final report.
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 submitted under the Access to Information Act within the 30-day or extended period, as required by section 7. The request was for the total number of requests received for accommodation and exemption from CAF COVID-19 vaccination mandate, the total number of those requests approved, denied and those that are still under review, for a specified time period.
[2] The allegation falls under paragraph 30(1)(c) 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 February 13, 2023. On March 14, 2023, DND extended the period within which it had to respond by 60 days under paragraph 9(1)(a), making the time limit to respond May 15, 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, four (4) Offices of Primary Interest (OPIs) were tasked to retrieve responsive records. One tasking was cancelled as not relevant, as it became apparent that this tasking was not necessary. A second tasking, returned on time, resulted in a “nil” records response. The Chief of Military Personnel (CMP) advised that a “nil” response was likely, but has failed to send a formal “nil” response despite numerous follow ups from DND’s access to information unit (DAIP). The fourth OPI, Strategic Joint Staff (SJS), has yet to complete the records retrieval.
[10] These two tasking responses have been outstanding since February 2023. As such, DAIP has been unable to initiate any review of records and, in turn, advance the processing of the request. To date, the total volume of responsive records, including the need for any consultations, is unknown. I find the delay taken by the OPIs to retrieve all relevant records unacceptable. 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.
[11] 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.
[12] 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
[13] 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 February 9, 2024, I issued my initial report to the Minister of National Defence setting out my order.
On March 5, 2024, the Chief of Operations, Directorate Access to Information and Privacy, gave me notice that DND would be implementing my order.
Review by Federal Court
When a complaint falls within the scope of paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant and institution have the right to apply to the Federal Court for a review. They must apply for this review 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.