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National Defence (Re), 2026 OIC 59

Date: August 31, 2026
OIC file number: 5825-00669
Access request number: A-2022-02003

Summary

The complainant alleged that National Defence (DND) had improperly withheld information under the following provisions of the Access to Information Act in response to an access request:

  • subsection 16(2) (facilitating the commission of an offence);
  • subsection 19(1) (personal information);
  • paragraph 21(1)(a) (advice or recommendations);
  • paragraph 21(1)(b) (accounts of consultations or deliberations);
  • section 23 (solicitor-client privilege); and
  • subsection 69(1) (Cabinet confidences).

The complainant also alleged that DND did not conduct a reasonable search for records in response to an access request. The request was for records regarding the Canadian Forces Grievance Authority Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces Report from June 1, 2020, to February 22, 2023. The allegations fall under paragraph 30(1)(a) of the Act.

During the investigation, DND disclosed some information that it had previously withheld under exemptions. The remaining information met the requirements of the exemptions or exclusion. DND also conducted another search and located additional responsive records. The Information Commissioner ordered DND to complete the processing of the additional records located as a result of the reasonable search allegation and provide the complainant with these additional records no later than 36 business days after the date of the final report. DND gave notice to the Commissioner that it would implement the order. The complaint is well founded.

Complaint

[1]The complainant alleged that National Defence (DND) had improperly withheld information under the following provisions of the Access to Information Act in response to an access request:

  • subsection 16(2) (facilitating the commission of an offence);
  • subsection 19(1) (personal information);
  • paragraph 21(1)(a) (advice or recommendations);
  • paragraph 21(1)(b) (accounts of consultations or deliberations);
  • section 23 (solicitor-client privilege); and
  • subsection 69(1) (Cabinet confidences).

[2]The complainant also alleged that DND did not conduct a reasonable search for records in response to an access request.

[3]These allegations fall under paragraph 30(1)(a) of the Act.

[4]The request was for records regarding the Canadian Forces Grievance Authority Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces Report from June 1, 2020, to February 22, 2023.

[5]During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate DND’s application of subsection 19(1) to personal information or case numbers. It was therefore not necessary to investigate the application of subsection 19(1).

Investigation

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

[7]On April 20, 2026, DND disclosed all information that was withheld under subsection 16(2) when it responded to the access request. DND also disclosed some information which it had withheld under paragraph 21(1)(a) and paragraph 21(1)(b) when it responded to the request on pages 6301 to 6426. DND continued to withhold the remaining information under section 23, subsection 69(1), and paragraphs 21(1)(a) and 21(1)(b).

[8]The complainant continued to object to DND’s application of the remaining exemptions and exclusion and represented that there are missing records. An analysis of these remaining exemptions and exclusion, as well as the reasonableness of the search conducted, follows.

[9]DND was required to conduct a reasonable search for records that fall within the scope of the access request – that is, one or more experienced employees, knowledgeable in the subject matter of the request, must have made reasonable efforts to identify and locate all records reasonably related to the request.

[10]A reasonable search involves a level of effort that would be expected of any fair, sensible person tasked with searching for responsive records where they are likely to be stored.

[11]This search does not need to be perfect. An institution is therefore not required to prove with absolute certainty that further records do not exist. Institutions must, however, be able to show that they took reasonable steps to identify and locate responsive records.

Did the institution conduct a reasonable search for records?

[12]The complainant alleged that specific records identified in the access request were missing from the response.

[13]In response to the investigation, DND conducted a secondary search and located additional records. Based on the complainant’s clarification that they are seeking only final versions of the records in machine-readable format, DND confirmed that this totaled 1,018 pages of additional records.

[14]DND provided detailed representations concerning this secondary search, including the Offices of Primary Interest and individuals tasked with completing the search, the rationale for their selection, the dates on which searches were conducted, the information management systems searched, the applicable date ranges, and the keywords used.

[15]I am now satisfied that DND employed appropriate search parameters in its efforts to locate records responsive to the request.

[16]Since it located additional records, I conclude that DND did not conduct a reasonable search for relevant records at the time of its initial processing of the request. However, I am satisfied that the subsequent search was reasonable and resulted in the identification of additional responsive records, which DND initially committed to processing and disclosing to the complainant by July 30, 2026. However, DND then informed my office that it would not meet this timeline and that it anticipated tasking additional Offices of Primary Interest to search for records. It was unable to provide further details about an updated timeline.

Paragraph 21(1)(a): advice or recommendations

[17]Paragraph 21(1)(a) allows institutions to refuse to disclose advice or recommendations developed by or for a government institution or a minister.

[18]To qualify for exemption under paragraph 21(1)(a), the records that contain the information must have been created less than 20 years before the access request was made.

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

  • The information is advice or recommendations.
  • The information was developed by or for a government institution or minister.

[20]When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

[21]However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) to refuse to disclose the following:

  • records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
  • reports prepared by consultants or advisers who were not directors, officers or employees of an institution or members of a minister’s staff at the time.

Does the information meet the requirements of the exemption?

[22]DND maintained the application of paragraph 21(1)(a) to information throughout the records and had also applied paragraph 21(1)(b) and section 23 to portions of that information.

[23]DND explained that the records were prepared for the Deputy Minister and the Chief of the Defence Staff, and that their content consists of advice intended to support decision-making and to seek approval. DND maintained that portions of the records referring to potential risks or considerations should remain exempt under paragraph 21(1)(a), which protects advice or recommendations developed for a government minister. DND emphasized that this exemption is intended to preserve a space in which ministers can receive candid and confidential advice, and argued that disclosure would undermine this process.

[24]DND also provided representations to demonstrate that the information does not fall under the circumstances set out in subsection 21(2).

[25]I find it evident that the information constitutes advice or recommendations developed for a government minister, and that the records were created within the last 20 years.

[26]In light of the above, I conclude that the information at issue meets the requirements of paragraph 21(1)(a).

[27]Since the information meets the requirements of paragraph 21(1)(a), I did not examine the other exemptions DND applied to the same information.

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

[28]Since the information meets the requirements of paragraph 21(1)(a), DND was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, DND had to consider all the relevant factors for and against disclosure.

[29]An institution’s decision not to disclose information must be transparent, intelligible and justified. An institution’s explanation will be sufficient when the institution provides details of how it made the decision and when the documents related to the decision-making process shed light on why the institution proceeded as it did.

[30]DND explained that it applied the exemptions with a lens of severability, for the purpose of ensuring that as much as possible could be released. In its exercise of discretion, it considered how to maintain an environment where a minister can receive candid and confidential advice to promote informed decision-making. DND represented that its approach supports the preservation of a frank and open environment necessary for effective internal government decision-making.

[31]Some of the relevant records contain drafts, and in these cases, DND considered that until the government or a delegated official makes a decision, none of the options represent official government positions.

[32]In light of these considerations, I conclude that DND considered all relevant factors when it decided not to disclose the information. The exercise of discretion by DND was reasonable.

Section 23: solicitor-client privilege

[33]Section 23 allows institutions to refuse to disclose information subject to solicitor-client privilege or the professional secrecy of advocates and notaries when the information relates to legal advice given to a client. Section 23 also allows institutions to refuse to disclose information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.

[34]To claim this exemption with regard to solicitor-client privilege, institutions must show the following:

  • The information consists of communication between a lawyer or notary and his or her client.
  • That communication relates directly to the seeking or giving of legal advice, including all the exchanges of information needed to give legal advice.
  • The parties intend the communication and advice to remain confidential.

[35]When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[36]DND maintained the application of section 23 to withhold information on pages 6369, 6375, 6376, 6377, 6378, 6379, and 6425.

[37]The investigation confirmed that the information consists of communication between a lawyer or notary and his or her client, and that the communication relates directly to the seeking or giving of legal advice. Given the nature of the discussions, it is clear that the parties intended the communication and advice to remain confidential.

[38]In light of the above, I conclude that the information meets the requirements of section 23.

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

[39]Since the information meets the requirements of section 23, DND was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, DND had to consider all the relevant factors for and against disclosure.

[40]DND considered whether privilege could be waived in this particular instance. Ultimately, DND determined the privilege must be maintained. This decision was made in consultation with DND’s Judge Advocate General.

[41]In light of the above, I conclude that DND considered all relevant factors when it decided not to disclose the information. The exercise of discretion by DND was reasonable.

Subsection 69(1): Cabinet confidences

[42]Under subsection 69(1), the right to access records under Part 1 of the Access to Information Act does not apply to confidences of the King’s Privy Council for Canada (Cabinet confidences) (for example, memoranda to Cabinet, discussion papers presenting background explanations, analyses of problems or policy options for consideration by the Cabinet in making decisions, and draft legislation, as set out in paragraphs 69(1)(a) to (g)).

[43]However, under subsection 69(3), the right to access records does apply to Cabinet confidences that are more than 20 years old and to discussion papers when the decisions to which they relate have been made public or, when they have not, four years have passed since the decisions were made.

Does the information meet the requirements of the exclusion?

[44]I cannot review the information to which Cabinet confidences exclusions have been applied. DND provided confirmation that, upon being notified of the complaint, it re-consulted its Legal Services for a second review of its application of section 69. DND then confirmed that its Legal Services had completed a re-review of the application of subsection 69(1) and verified that it maintained its position in excluding the information at issue. The investigation also confirmed that the exception set out in subsection 69(3) does not apply.

Outcome

[45]The complaint is well founded:

  • DND improperly withheld some information under subsection 16(2), paragraph 21(1)(a), and paragraph 21(1)(b) when it responded to the access request;
  • DND did not conduct a reasonable search for records when it responded to the access request.

Order

I order the Minister of National Defence to:

  • Complete the processing of the additional records located as a result of the reasonable search allegation; and
  • Provide the complainant with these additional records no later than 36 business days after the date of the final report.
  • Give access to the responsive records, unless access to them, or to part of them, may be refused under a specific provision(s) of Part 1 of the Act. When this is the case, name the provision(s).

Initial report and notice from institution

On July 30, 2026, I issued my initial report to the Minister of National Defence setting out my order.

On August 28, 2026, the Chief of Operations, Directorate Access to Information and Privacy, gave me notice that DND would be implementing the 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, the order(s) takes effect on the 36th business day after the date of this report.

Caroline Maynard
Information Commissioner of Canada

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