Final report (3218-00001): National Defence

OIC file number: 3218-00001
Institution: National Defence
Institution file number: A-2017-00485
Date: May 25, 2020

Summary

Despite numerous attempts to clarify a request for information, the National Defence (DND) ultimately did not respond to the request, being of the view that it did not meet the requirements of section 6 of the Access to Information Act (Act).  The Office of the Information Commissioner received a complaint that DND had not responded to the request within the time limits set out in the Act.

The complaint is not well-founded.

Complaint

The complainant alleged that National Defence (DND) did not respond to a request for information within the time limits set out in the Access to Information Act (Act).

Investigation

On June 20, 2017, the complainant submitted an access to information request for, among other things:

  • all files on the computer(s) of a named individual;
  • all files on specified network drive of the named individual;
  • all of the named individual’s electronic communications;
  • all files and folders on any external drives or devices that have been “signed for or assigned” to the named individual;
  • all folders that have been created by the named individual; and
  • all files and folders on any network drives that are exclusively used by the named individual or any of that individual’s co-workers.

From the time it received the request until February 2018, DND attempted to obtain clarification from the complainant regarding what information was actually being sought. The complainant, however, elected not to provide any clarification.

In March 2018, the complainant complained to the Office to the Information Commissioner (OIC) alleging that DND had failed to respond to the request within the time limits set out in the Act and was therefore deemed to have refused access under subsection 10(3) – Deemed refusal to give access, of the Act.

DND, in a letter sent to the complainant in June 2018, and in its representations to the OIC, maintained that, as worded, the request is “excessively broad” and does not meet the requirements of a valid request set out in section 6 – Request for access to record. In support of its position, DND indicated that the request:

  1. does not identify any records by, for example, subject matter, substance of information sought, or timeframe;
  2. would involve gathering and processing several terabytes of information, involving hundreds of thousands (if not millions) of pages; and
  3. would likely take upwards of a decade to respond.

Upon considering both the broad wording of the request and DND’s representations, the OIC sought to resolve the matter by asking whether the complainant would be willing to re-focus the request. The complainant declined.

The OIC then invited the complainant to make representations in support of the validity of the request, pointing out the requirements of a valid request as set out in section 6. When doing so the OIC indicated that, in the absence of convincing representations from the complainant, it was inclined to conclude that the requirements of section 6 were not satisfied because the request is so undefined in scope. The complainant did not respond.

Section 6 provides that a request for records under the Act must, among other things, “…provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record”.

The request, as worded, is for “all records”, “all files” and “all folders” in a multiplicity of locations, used by a named individual, or any of that individual’s co-workers, with no limitations in terms of the substance of the information or records sought. As a result, the request does not offer any particulars by which any targeted record or records can, with a reasonable amount of effort, be identified. In other words, by seeking everything, the request does not reasonably identify anything.

I agree with DND that the request does not provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record, and is therefore not in accordance with the obligations placed on the requester by the Act. This interpretation, in my view, is consistent with Parliament’s intent in setting out requisite criteria of a valid request in section 6. I am also satisfied that by attempting to better define the request numerous times, without success, DND has fulfilled its duty to assist responsibility.

Results

As the request does not meet the requirements of section 6, DND was not required to respond to the request. DND is therefore not in deemed refusal pursuant to subsection 10(3).

The complaint is not well-founded.

Section 41 of the Act also provides a right to the complainant who receives this report 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. 

Caroline Maynard
Information Commissioner of Canada

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