National Defence (Re), 2025 OIC 46

Date:2025-09-03
OIC file number: 5825-00289
Access request number: A-2024-02354

Summary

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 a Canadian Forces National Counter-Intelligence Unit (CFNCIU) document titled "Defining IMVE", dated November 8, 2018.

The allegation falls under paragraph 30(1)(a) of the Act.

The investigation determined that 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 the failure of the Office of Primary Interest (OPI) to respond when tasked with retrieving relevant records.

The Information Commissioner determined that the delay in the retrieval of records by the OPI is completely unacceptable given its initial estimation that the document requested is only 6 pages long.

The Information Commissioner ordered that DND provide a complete response to the access request no later than 36 business days after 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 within the 30-day period set out in section 7 of the Access to Information Act. The request was for a Canadian Forces National Counter-Intelligence Unit (CFNCIU) document titled "Defining IMVE", dated November 8, 2018. The allegation falls under paragraph 30(1)(a) of the Act.

Investigation

Time limits for responding to access requests

[2]        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).

[3]        Nevertheless, the institution is still required to provide a response to the access request.

What is a response?

[4]        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.

[5]        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?

[6]        DND received the access request on March 10, 2025, but neither extended the period within which it had to respond to the request under subsection 9(1) nor transferred the request. This means that the 30-day period under section 7 still applied, making the time limit to respond April 9, 2025.

[7]        DND did not respond to the access request by this date. I conclude, therefore, that DND did not meet its obligation to respond within the 30-day period. DND is deemed to have refused access to the requested records under subsection 10(3).

[8]        Based on information provided by DND, only one Office of Primary Interest (OPI), the Canadian Forces Intelligence Command (CFINTCOM), was tasked with retrieving any relevant records on March 14, 2025. The CFINTCOM has yet to respond to the tasking but has advised that it anticipates approximately 6 pages of electronic records and are still conducting a review of the records. However, DND’s Directorate Access to Information and Privacy (DAIP) has no indication of when the CFINTCOM will respond to the tasking. As such, the review of records by DAIP, the unit with the delegated authority to respond to an access request on behalf of DND, has not yet begun, and DND did not provide a planned response date for a complete response.

[9]        I find the delay taken by the CFINTCOM to retrieve the relevant records and respond to DAIP, completely unacceptable, especially given its initial estimation that the document requested is only 6 pages long. CFINTCOM does not seem to understand that the Act imposes a legal obligation to respect the right of access. This is a duty that must be understood and shared by all members of the Canadian Armed Forces and public service employees serving and working under the Minister of National Defense. DAIP is not the only one responsible in ensuring that the Act is respected; it is a departmental and collective responsibility. I urge, again, the Minister to remind his public officials, as well as military personnel, of their responsibility in providing timely access to information to Canadians.

[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]      DND must respond to the request within the shortest amount of time possible. Any response must necessarily be compliant with DND’s other obligations under the Act, including the obligation to respond to the request accurately, completely and in a timely manner.

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 following the date of the final report.

Initial report and notice from institution

On August 6, 2025, I issued my initial report to the Minister setting out my order.

On August 19, 2025, DND’s Chief of Operations, 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.