National Defence (Re), 2025 OIC 49

Date: 2025-09-23
OIC file number: 5825-01584
Access request number: A-2024-01826

Summary

The complainant alleged that the National Defence (DND), when responding to a request under the Access to Information Act, improperly refused to issue a new response letter. The request was for policy records, regulations, directives, orders and instructions regarding who within the Canadian Armed Forces (CAF) has the authority to generate Branch Standing Orders. The allegation falls under paragraph 30(1)(f) of the Act.

DND responded to the access request as follows:

….

Following a thorough and complete search for all records in response to your request, it is determined that no records could be located within the Department of National Defence. 

The subject matter experts indicated Defence Administrative Orders and Directives (DAOD) 5070-0 section 4.1 provides the Chief of Military Personnel (CMP) the authority to “appoint branch advisors on the advice of occupation authorities”. CAF Military Personnel Instruction 02/08 outlines responsibilities of the Branch advisor, which might prompt the creation of Branch Standing Orders for the purposes of sharing information and aiding in fulfilling obligations outlined in sections 4.8 and 4.9 (ex. 4.8.h & 4.9.c). 

DAOD 5070-0: DAOD 5070-0, Military Employment Structure - Canada.ca

CAF Military Personnel Instruction 02/08: Canadian Armed Forces Military Personnel Instruction 02/08 – Branch Advisors - Roles and Responsibilities - Canada.ca

…

The complainant alleged that by including contextual information about any possible responsive records, DND speculated on the rationale behind a practice without relying on any documented records, which in turn, contravened the Act, specifically DND’s duty to assist obligations under subsection 4(2.1) of the Act.

Subsection 10(1) provides that where the head of a government institution refuses to give access to a record requested or a part thereof, the head of the institution shall state in the notice given under paragraph 7(a):

1. that the record does not exist, or
2. the specific provision of this Part on which the refusal was based or, where the head of the institution does not indicate whether a record exists, the provision on which a refusal could reasonably be expected to be based if the record existed.

The head of the institution is also required to state in the notice that the person who made the request has a right to make a complaint to the Information Commissioner about the refusal.

In this case, DND conducted a thorough search for records. DND ultimately determined that no responsive records existed and issued a response stating this, along with a notice of the right to complain to the Information Commissioner.

DND included an additional paragraph in its response letter containing hyperlinks and contextual information intended to assist the requester by pointing to publicly available information. Although this supplementary information was not responsive to the request, it was transparently presented and clearly distinguished from the official response.

Subsection 4(2.1) of the Act requires institutions to make every reasonable effort to assist requesters, which includes clear communication of search results.

The OIC found that DND’s inclusion of context did not misrepresent the existence of records, nor did it create new records. The explanation was offered in good faith, using cautious language such as “might,” and was consistent with the duty to assist under the Act.

The OIC concluded that DND was not obligated to issue a new response excluding the contextual information and did not breach any obligations under the Act or its regulations.

Complaint

[1] The complainant alleged that the National Defence (DND), when responding to a request under the Access to Information Act, improperly refused to issue a new response letter. The request was for policy records, regulations, directives, orders and instructions regarding who within the Canadian Armed Forces (CAF) has the authority to generate Branch Standing Orders. The allegation falls under paragraph 30(1)(f) of the Act.

Investigation

[2]DND responded to the access request as follows:

….

Following a thorough and complete search for all records in response to your request, it is determined that no records could be located within the Department of National Defence. 

The subject matter experts indicated Defence Administrative Orders and Directives (DAOD) 5070-0 section 4.1 provides the Chief of Military Personnel (CMP) the authority to “appoint branch advisors on the advice of occupation authorities”. CAF Military Personnel Instruction 02/08 outlines responsibilities of the Branch advisor, which might prompt the creation of Branch Standing Orders for the purposes of sharing information and aiding in fulfilling obligations outlined in sections 4.8 and 4.9 (ex. 4.8.h & 4.9.c). 

DAOD 5070-0: DAOD 5070-0, Military Employment Structure - Canada.ca

CAF Military Personnel Instruction 02/08: Canadian Armed Forces Military Personnel Instruction 02/08 – Branch Advisors - Roles and Responsibilities - Canada.ca

…

[3]The complainant alleged that by including contextual information about any possible responsive records, DND speculated on the rationale behind a practice without relying on any documented records, which in turn, contravened the Act, specifically DND’s duty to assist obligations under subsection 4(2.1) of the Act.

Did DND improperly refuse to issue a new response to the request?

[4]Subsection 10(1) provides that where the head of a government institution refuses to give access to a record requested or a part thereof, the head of the institution shall state in the notice given under paragraph 7(a):

1. that the record does not exist, or
2. the specific provision of this Part on which the refusal was based or, where the head of the institution does not indicate whether a record exists, the provision on which a refusal could reasonably be expected to be based if the record existed.

[5]The head of the institution is also required to state in the notice that the person who made the request has a right to make a complaint to the Information Commissioner about the refusal.

[6]In this case, DND processed the request based on an agreed-upon modified text of the request and conducted a search for requested records, ultimately determining that no responsive records existed. DND’s notice of response stated that no records were located, and it included a notice of complaint to the Information Commissioner. In the OIC’s view this constitutes a complete and appropriate response under the Act.

[7]DND included an additional paragraph in the body of the response letter with hyperlinks and a brief explanation of why responsive records might not exist. While this information was not responsive to the request, DND explained that it intended for the supplementary information to provide context and bring to the complainant’s attention the publicly available documents that may be useful to the complainant.

[8]The complainant raised concerns that the information was “speculative” and not grounded in any documented record and therefore should not have been included in the response. They cited the Treasury Board Secretariat’s Principles for Assisting Requesters, which states that institutions must “provide accurate and complete responses”. They also referenced the Access to Information Manual to argue that institutions are not required to create new information or explanations in response to a request.

[9]Subsection 4(2.1) of the Act requires institutions to “make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely and, subject to the regulations, provide timely access to the records in the format requested.”

[10]The OIC interprets this duty to assist as encompassing not only the search for records but also the manner in which institutions communicate the results of that search. The institution’s inclusion of contextual information, while not drawn from a responsive record, was presented transparently and did not purport to be a factual finding. The use of language such as “might” clearly signaled that the explanation was offered as a possible interpretation, not as a verified fact. This distinction is important. The institution did not misrepresent the existence of records, nor did it fabricate or create new records. Rather, it attempted to assist the requester by offering publicly available resources and a plausible explanation, which is consistent with the spirit of the duty to assist.

[11]The Access to Information Manual confirms that institutions are not required to create records to respond to requests. However, it does not prohibit institutions from including contextual information in their responses, provided that such information is clearly distinguished from responsive records and does not mislead the requester.

[12]DND’s response included the following statement: Following a thorough and complete search for all records in response to your request, it is determined that no records could be located within the Department of National Defence.(Our emphasis)

[13]The inclusion of this statement satisfies DND’s obligation to inform the requester of the outcome of their request. The additional paragraph containing hyperlinks and contextual information was presented as supplementary, and not as a responsive record. It did not alter or obscure the core finding that no records were located.

[14]The OIC finds that DND included this information in good faith as part of its duty to assist obligations set out in subsection 4(2.1) of the Act.

[15]The OIC is satisfied that the inclusion of this supplementary information did not breach any obligations imposed by the Act or the Access to Information Regulations.

[16]In light of the above, the OIC concludes that DND was under no obligation to issue a new response to the request without the additional contextual information and that it did not circumvent any obligation under the Act when it refused to do so.  

Outcome

[17]The complaint is not well founded.

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.