Decisions

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.

The complainant alleged that the Royal Canadian Mounted Police (RCMP) did not search for the records requested and/or that additional records that are responsive to the above-noted access request must exist. The request sought all records on allegations of political interference with the Attorney General's functions in respect of the prosecution of SNC-Lavalin by the Prime Minister and employees of the Prime Minister's Office. The allegations fall under paragraph 30(1)(a) of the Act. The investigation revealed that, although the RCMP tasked the offices of primary interest (OPIs) most likely to hold records, the OPIs failed to search for records up to and including July 5, 2023. The Information Commissioner also concluded that a 4600-page Police Reporting and Occurrence System file, deemed not relevant by the RCMP, was in fact relevant and ought to have been processed. The Information Commissioner ordered the RCMP to conduct a new search for records and provide a new response to the complainant.  The RCMP gave notice to the Commissioner that it would implement the order. The complaint is well founded.

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.

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 “Report 002-18: The militia movement, the III%, and the threat to DND/CAF” and any associated documents.

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 13 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.

The complainant alleged that the Canadian Broadcasting Corporation (CBC) had improperly withheld information under section 68.1 (journalistic, creative or programming activities of the Canadian Broadcasting Corporation) and paragraph 18(b) (competitive position of government institutions, negotiations by government institutions)

of the Access to Information Act in response to an access request. The request was for the number of paid subscribers to Gem. This allegation falls under paragraph 30(1)(a) of the Act.

The Information Commissioner found that the number of paid subscribers to CBC Gem, even if it is related to CBC’s programming activities, also relates to its general administration. This means the exception to the exclusion is engaged. The Commissioner concluded that the information does not meet the requirements of section 68.1.

The Commissioner also found that, while CBC did identify possible harms to its competitive position or to ongoing negotiations, it did not demonstrate that there was a reasonable expectation that these harms could occur, well beyond a mere possibility. The Commissioner concluded that the information does not meet the requirements of paragraph 18(b).

The Commissioner ordered CBC to disclose the withheld information.

CBC gave notice to the Commissioner that it would not be implementing the order.

The complaint is well founded.

The complainant alleged that the Correctional Service of Canada (CSC) had improperly withheld information under subsection 19(1) (personal information) of the Access to Information Act. This was in response to an access request for emails sent to and from the Warden at Millhaven Institution containing the words “outbreak”, “covid”, “mask”, isolate”, “lockdown” or “Structured Intervention Units (SIU)” between April 19 and 25, 2021. The allegation falls within paragraph 30(1)(a) of the Act. The investigation confirmed that portions of the withheld information such as names and contact information of staff and offenders for the purpose of COVID-19 contract tracing, performance appraisals, information related to intra-regional transfers and the names and birthdates of offenders, as well as details regarding an offender’s criminal history met the requirements of subsection 19(1). The Information Commissioner ordered CSC to disclose the information that does not meet the requirements of subsection 19(1), such as the type of incidents in the situation reports. CSC gave notice to the Commissioner that it would implement the order. The complaint is well founded.

The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC had improperly withheld information under paragraph 20(1)(b) (confidential third party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party), and section 23 (solicitor-client and litigation privilege) of the Access to Information Act. This was in response to an access request for the agreement, land claim settlement signed in the year 2000 between the federal Canadian government and the Squamish band.

Neither CIRNAC nor the third party showed that the information met the requirements of the exemptions - in particular how there was a clear and direct connection between the disclosure of any specific information and a risk of harm, that the information could result in a reasonable expectation of interference with negotiations, or that privilege applies. The Information Commissioner ordered CIRNAC to disclose the records in their entirety. CIRNAC gave notice to the Commissioner that it would not be disclosing the records.