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DAOD 1001-1, Access to Information Act Requests

Table of Contents

  1. Introduction
  2. Definitions
  3. Overview
  4. Objectives and Expected Results
  5. Access to Information Act Requests
  6. Access to Information Act Request Processing
  7. Office of the Information Commissioner
  8. Obstruction of the Right of Access
  9. Access to Information Act Training and Awareness
  10. Compliance and Consequences
  11. Responsibilities
  12. References

1. Introduction

Date of Issue: 1999-10-12

Date of Last Modification: 2019-02-11

Application: This DAOD is a directive that applies to employees of the Department of National Defence (DND employees) and an order that applies to officers and non-commissioned members of the Canadian Armed Forces (CAF members).

Supersession:

Approval Authority: Corporate Secretary (Corp Sec)

Enquiries: Director Access to Information and Privacy (DAIP)

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2. Definitions

government  institution (institution fédérale)

Means

(a) any department or ministry of state of the Government of Canada, or any body or office listed in Schedule I (of the Access to Information Act) and

(b) any parent Crown corporation, and any wholly-owned subsidiary of such a corporation within the meaning of section 83 of the Financial Administration Act.

(Section 3 of the Access to Information Act)

record (document)

Means any documentary material, regardless of medium or form. (Section 3 of the Access to Information Act)

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3. Overview

Right to Access Records

3.1 The Access to Information Act (ATIA) gives Canadian citizens, permanent residents, and other persons and corporations present in Canada the legal right to access records, in any form, that are under the control of a government institution, subject to limited and specific exemptions and exclusions, with decisions on the disclosure of government information reviewed independently of government. The general purpose of the ATIA is to make government more open and transparent.

3.2 Canadian courts have recognized the quasi-constitutional status of the ATIA because of the role that the ATIA plays in:

  1. facilitating democracy by providing access to records containing information required to participate in the democratic process; and
  2. ensuring that public office holders and public servants are accountable.

Release of DND and CAF Information

3.3 ATIA requests are those formally made under the ATIA. However, subsection 2(2) of the ATIA provides that the ATIA “is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.”

Requests not Made Under the ATIA

3.4 DND employees and CAF members must respond if possible to requests for information not made under the formal ATIA process. When responding to such requests, DND employees and CAF members must consult the National Defence Security Orders and Directives, Chapter 6, Security of Information, and the associated Security of Information Standards, for applicable exemption or exclusion considerations under the ATIA. Such requests are processed by the DND or CAF office of primary interest (OPI) for the requested information, not by DAIP.

Exclusion of Published and Other Materials

3.5 Section 68 of the ATIA reinforces the importance of making government information available outside of the formal ATIA process by excluding published material, material available for purchase and other reference materials from the formal right of access on the expectation that this type of information will be made available by other means.

Access to Completed ATIA Requests

3.6 Summaries of completed ATIA requests are posted within 30 calendar days after the end of each month and can be accessed from the following Web site: https://open.canada.ca/en/search/ati. To facilitate informal requests, if an individual wishes to receive a copy of previously released records, DAIP will not require a formal request but will provide a copy upon request.

Processing ATIA Requests

3.7 DAIP has the responsibility for the processing of ATIA requests in accordance with the ATIA and the Access to Information Regulations. The ATIA and the Access to Information Regulations provide the conditions relating to the transfer of requests, extension of time limits, charging of fees, grounds for exemptions and exclusions, process for giving notice to third parties, language of access, record formats and means of access.

3.8 This DAOD supports the DND and the CAF by providing specific direction and responsibilities regarding the requirements of the ATIA and the Access to Information Regulations. Effective, well-coordinated and proactive administration of the ATIA within the DND and the CAF ensures complete, accurate and timely responses to ATIA requests.

3.9 This DAOD is to be read in conjunction with the Instruction on Access to Information Act Requests. Specific procedures for the processing of ATIA requests by DAIP are set out in this Instruction.

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4. Objectives and Expected Results

Objectives

4.1 The objectives of this DAOD are to:

  1. facilitate statutory and regulatory compliance and to enhance effective application of the ATIA and the Access to Information Regulations by the DND and the CAF; and
  2. ensure consistency in practices and procedures in administering the ATIA and the Access to Information Regulations so that persons requesting information receive assistance throughout the request process.

Expected Results

4.2 The expected results of the implementation of this DAOD are:

  1. clear responsibilities within the DND and the CAF for decision-making and effective administration of the ATIA and the Access to Information Regulations;
  2. sound management and decisions in responding to ATIA requests, regardless of the identity of the requestor; and
  3. complete, accurate and timely responses to requests made under the ATIA.

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5. Access to Information Act Requests

Principles

5.1 All requests made under the ATIA for access to information contained in records under the control of the DND and the CAF must be submitted to and processed by DAIP.

5.2 The ATIA provides a person making a request for access to a record under the control of a government institution with legal rights which must be respected. In particular, subsection 4(2.1) of the ATIA provides a duty to assist a person making a request. Under that provision, the head of a government institution must make every reasonable effort to assist the person in connection with their request, respond to the request accurately and completely and, subject to the regulations, provide timely access to the record in the format requested.

5.3 All ATIA requests must be processed without regard to the identity of the requester. The identity of a requester must be protected by limiting the disclosure of information that could directly or indirectly lead to their identification, unless the requester consents to the disclosure.

5.4 DAIP must communicate promptly with a requester when necessary to clarify an ATIA request. DAIP may also request information for clarification from the OPI responsible for the records requested.

ATIA Request Consultation

5.5 If a request involves several institutions, DAIP is responsible for consulting with the other institutions to ensure that all viewpoints are considered in carrying out the provisions of the ATIA. An institution may be another government institution, the ministry or department of a province or territory, a municipality or the government of another country.

5.6 DAIP is responsible for processing consultation requests from other institutions so that the latter can properly exercise their discretion in applying the exemption provisions of the ATIA or equivalent provincial or territorial legislation, as applicable. Consultations must be accorded the same priority level as ATIA requests.

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6. Access to Information Act Request Processing

Access to Information Tasking Liaison Officer (ATI TLO)

6.1 A level one advisor (L1) must assign an ATI TLO for their organization. The ATI TLO is the primary point of contact between DAIP and the L1. All ATIA requests and ATIA consultations must be sent by DAIP directly to the ATI TLO.

Document Retrieval

6.2 The ATI TLO must identify the relevant OPI that is best suited to retrieve the records responsive to the ATIA request. Each L1 may have their own internal procedures for dealing with ATIA requests but those procedures cannot restrict those established by DAIP.

6.3 DND employees and CAF members must make every reasonable effort to locate all records under the control of the DND and the CAF that are responsive to an ATIA request.

Recommendations for Exemptions

6.4 Recommendations for exemptions in records must be provided to DAIP. Rationale and supporting contextual information must accompany the recommendations.

6.5 The purpose of the ATIA must be considered when reviewing records, i.e. to provide a right of access to information held in government records, subject to limited and specific exemptions and exclusions as provided for in the ATIA.

6.6 Non-relevant information contained in the records is severed only if an exemption applies or if consent for the severance is obtained from the requester through DAIP. Lack of relevance is not grounds for an exemption under the ATIA.

6.7 An L1 or their authorized delegate must review and approve all recommendations provided to DAIP.

Decision to Disclose or Withhold Information

6.8 DAIP must review all information contained in records and consider the relevant provisions of the ATIA, as well as applicable jurisprudence.

6.9 DAIP must review and consider the recommendations provided by an L1 or their authorized delegate. Notification must be provided to the L1 in all instances if there is disagreement with their recommendations for exemptions. If requested, the L1 must provide additional rationale for exemptions.

6.10 While making decisions to disclose or withhold information, DAIP, as a delegated authority, must exercise discretion in a fair, reasonable and impartial manner. Discretion may only be exercised by those individuals with delegated authority under the ATIA.

Time Limits

6.11 All ATIA requests must be processed within 30 calendar days of receipt of the request. Only DAIP may assess if an extension to the time limit for the processing of an ATIA request is permissible. DAIP must notify the requester of the extension within 30 calendar days of the receipt of the ATIA request.

6.12 If searching through a high volume of records or retrieving a high volume of records within the time limit would unreasonably interfere with operations, or if consultation with other institutions or third parties is required, DAIP must be informed immediately so that the time can be extended. DAIP must ensure that any extension granted is as short as possible and can be justified.

6.13 DAIP must notify the Office of the Information Commissioner (OIC) of any extension of time greater than 30 days.

Fees

6.14 In accordance with the Treasury Board (TB) Interim Directive on the Administration of the Access to Information Act, all fees, other than the application fee set out in paragraph 7(1)(a) of the Access to Information Regulations, must be waived.

Waiver, Reduction or Refund of Application Fee

6.15 In respect of the application fee, DAIP is required to exercise discretion in the waiver, reduction or refund of the fee, while taking into account the applicable steps set out in subsection 7.1.1 of the Interim Directive on the Administration of the Access to Information Act.

Reporting

6.16 DAIP is responsible for the following annual reporting requirements:

  1. the DND and CAF Info Source chapter;
  2. a statistical report to TB Secretariat on the administration of the ATIA; and
  3. a report to Parliament on the administration of the ATIA.

Note  ̶  See DAOD 1002-3, Personal Information Management, for more information on Info Source.

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7. Office of the Information Commissioner

7.1 Requesters must be notified of their right to complain to the OIC if access to a record or part of a record is refused.

7.2 L1s must cooperate with DAIP in providing representations to the OIC.

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8. Obstruction of the Right of Access

8.1 Section 67.1 of the ATIA makes it an offence for a person, with intent to deny a right of access under the ATIA, to:

  1. destroy, mutilate or alter a record;
  2. falsify a record or make a false record;
  3. conceal a record; or
  4. direct, propose, counsel or cause any person in any manner to do anything mentioned in any of paragraphs a. to c.

8.2 A person who contravenes subsection 67.1(1) of the ATIA is guilty of the following:

  1. an indictable offence and liable to imprisonment for a term not exceeding two years or to a fine not exceeding $10,000, or to both; or
  2. an offence punishable on summary conviction and liable to imprisonment for a term not exceeding six months or to a fine not exceeding $5,000, or to both.

8.3 Any suspected obstruction of the right of access in contravention of section 67.1 of the ATIA must be reported immediately to DAIP.

8.4 DAIP has established procedures to address suspected obstruction of the right of access.

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9. Access to Information Act Training and Awareness

Appropriate Training

9.1 L1s must ensure that all DND employees and CAF members who have responsibility for the administration of ATIA requests receive appropriate ATIA training.

Contracts, Arrangements and Other Agreements

9.2 As public access to information is a legal right under the ATIA, L1s must ensure that all DND employees and CAF members who develop contracts, arrangements or other agreements do not purport by the use of restrictive clauses to limit that right.

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10. Compliance and Consequences

10.1 DND employees and CAF members must comply with the ATIA, the Access to Information Regulations, this DAOD and the Instruction on Access to Information Act Requests. Should clarification of these laws, policies or instructions be required, DND employees and CAF members may seek direction through their channel of communication or chain of command, as appropriate. Managers and military supervisors have the primary responsibility for and means of ensuring the compliance of their DND employees and CAF members with the ATIA, the Access to Information Regulations, this DAOD and the Instruction on Access to Information Act Requests.

Consequences of Non-Compliance

10.2 DND employees and CAF members are accountable to their respective managers and military supervisors for any failure to comply with the ATIA, the Access to Information Regulations, this DAOD or the Instruction on Access to Information Act Requests. Non-compliance may have consequences for both the DND and the CAF as institutions, and for DND employees and CAF members as individuals. Suspected non-compliance may be investigated. Managers and military supervisors must take or direct appropriate corrective measures if non-compliance has consequences for the DND or the CAF. The decision of an L1 or other senior official to take action or to intervene in a case of non-compliance, other than in respect of a decision under the Code of Service Discipline regarding a CAF member, will depend on the degree of risk based on the impact and likelihood of an adverse outcome resulting from the non-compliance and other circumstances of the case.

10.3 The nature and severity of the consequences resulting from non-compliance should be commensurate with the circumstances of the non-compliance and other relevant circumstances. Consequences of non-compliance may include one or more of the following:

  1. the ordering of the completion of appropriate learning, training or professional development;
  2. the entering of observations in individual performance evaluations;
  3. increased reporting and performance monitoring;
  4. the withdrawal of any authority provided under this DAOD to a DND employee or CAF member;
  5. the reporting of suspected offences to responsible law enforcement agencies;
  6. the application of specific consequences as set out in applicable laws, codes of conduct, and DND and CAF policies and instructions;
  7. other administrative action, including the imposition of disciplinary measures, for a DND employee;
  8. other administrative or disciplinary action, or both, for a CAF member; and
  9. the imposition of liability on the part of Her Majesty in right of Canada, DND employees and CAF members.

Note – In respect to the compliance of DND employees, see the TB Framework for the Management of Compliance for additional information.

10.4 Non-compliance with the ATIA and the Access to Information Regulations also poses a risk to the DND and the CAF as institutions and could result in the loss of public confidence and reputation, financial loss, legal implications, and risk to national interests and operations.

Note – For examples of other consequences for institutions, see Annex C of the Framework for the Management of Compliance.

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11. Responsibilities

Responsibility Table

11.1 The following table identifies the responsibilities associated with this DAOD:

The ... is or are responsible for ...

L1s or their authorized delegates
  • ensuring  that the ATI TLO and OPIs within their organizations comply with all responsibilities set out in this DAOD and the Instruction on Access to Information Act Requests;
  • reviewing and approving any recommendations for the disclosure of records and exemptions being sent to DAIP;
  • ensuring that all DND employees and CAF members who have responsibility for the administration of the ATIA are directed and provided with the opportunity to attend appropriate ATIA training; and
  • ensuring that contracts, arrangements and other agreements being developed do not purport by the use of restrictive clauses to limit the right of public access to information under the ATIA.

DAIP
  • exercising discretion in all aspects of the ATIA process, specifically in the application of exemptions to otherwise releasable records;
  • determining if the ATIA does not apply to certain information as described in section 68 of the ATIA;
  • consulting with the Office of the DND and Canadian Forces Legal Advisor prior to excluding confidences of the Queen’s Privy Council for Canada from the application of the ATIA and, as appropriate, on legal matters relating to the interpretation of the ATIA;
  • ensuring that ATIA training is available to all DND employees and CAF members, in particular those with responsibility for the processing of ATIA requests;
  • establishing procedures for the processing of ATIA requests;
  • determining the admissibility of all requesters;
  • complying with the responsibility under subsection 4(2.1) of the ATIA to make every reasonable effort to assist persons in connection with their requests for records;
  • offering the option of making requests outside of the formal ATIA process if appropriate;
  • providing contextual information as appropriate to help requesters understand the records provided, with the understanding that the DND and the CAF is not obligated to explain all records or complex information when responding to an ATIA request;
  • administering all aspects of fees, including assessing, collecting, waiving, reducing and refunding of any payment for access and additional service;
  • administering the extension of the time limits under section 9 of the ATIA;
  • conducting consultations with other institutions as necessary, particularly with respect to sections 15 and 16 of the ATIA;
  • invoking exemptions by properly considering the intent of the ATIA and relevant jurisprudence;
  • ensuring that non-relevant information contained in a record is severed only if an exemption applies or if consent for the severance is provided by requesters;
  • notifying requesters of their rights under the ATIA, including the right to complain to the OIC;
  • implementing and maintaining a system for the internal tracking of requests, and documenting the decision-making process;
  • establishing procedures to address any suspected obstruction of the right of access to records in contravention of section 67.1 of the ATIA; and
  • posting summaries of all completed ATIA requests in accordance with the Interim Directive on the Administration of the Access to Information Act.

ATI TLOs
  • liaising with DAIP as required; and
  • coordinating the response to ATIA requests.

DND employees and CAF members
  • making every reasonable effort to locate all records within their area of responsibility that are responsive to an ATIA request;
  • providing rationale to DAIP when requesting an extension of the time limit;
  • providing valid recommendations on the disclosure of records, rationale for exemptions and contextual information, if applicable;
  • recommending alternative options for requesters to gain access to government information, if appropriate (see paragraph 3.4); and
  • ensuring that contracts, arrangements or other agreements that they may develop do not purport by the use of restrictive clauses to limit the right of public access to information under the ATIA.

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12. References

Acts, Regulations, Central Agency Policies and Policy DAOD

Other References

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