Publications and Reports - Annual Report to Parliament 2008-2009 - Access to Information Act

Canadian Forces Crest

The Administration of the Access to Information Act in the Department of National Defence and the Canadian Forces

Table of Contents

About National Defence and the Canadian Forces
The Directorate Access to information and Privacy (DAIP)
Report on the Access to Information Act

Annex A - Statistical Report on the Access to Information Act
Annex B - Department of National Defence Ministerial Delegation Order

1. About National Defence and Canadian Forces

The Mission of the Department of National Defence and Canadian Force

The mission of the Department of National Defence (DND) and the Canadian Forces (CF) is to defend Canada and Canadian interests and values while contributing to international peace and security.

The Defence Portfolio

In many respects, the Department of National Defence is an organization like other departments of government. It is established by a statute, the National Defence Act which sets out the Minister's responsibilities, including the Minister's responsibility for the Department. The National Defence Act establishes DND and the CF as separate entities operating in close co-operation under the authority of the Minister of National Defence. The Minister of National Defence has specific responsibilities under that Act, and responsibilities for the administration of other statutes, regulations and orders.

The Defence Portfolio comprises the Department of National Defence and Canadian Forces and eight distinct portfolio organizations including:

National Search and Rescue Secretariat (NSS);
Canadian Forces Grievance Board (CFGB);
Military Police Complaints Commission of Canada (MPCC);
Office of the National Defence and Canadian Forces Ombudsman;
Communications Security Establishment Canada (CSEC);
Office of the Chief Military Judge (CMJ);
Office of the Communications Security Establishment Commissioner (OCSEC); and
Defence Research and Development Canada (DRDC).

The CF includes the Environmental Commands (Navy, Army and Air Force), and Operational Commands (CANADACOM, CEFCOM, CANSOFCOM, and CANOSCOM) as well as a Strategic Joint Staff through which the Chief of the Defence Staff exercises strategic command and the following support organizations and services:

A police service, comprising the Military Police and the National Investigation Service, operating under the Canadian Forces Provost Marshal;
A justice system, administered under the superintendence of the Judge Advocate General;
Chaplaincy services;
Extensive communications networks in Canada and abroad;
Firefighting services;
Medical and dental services because CF members are excluded from both the Canada Health Act of 1984 and the Public Service Health Care Plan;
The Canadian Cadet Program and the Junior Canadian Rangers;
The Canadian Defence Academy;
The Canadian Forces Grievance Authority;
The Canadian Forces Housing Agency; and
The Canadian Forces Personnel Support Agency.

Together, the diverse elements of the Defence Portfolio provide the core services and capabilities required to defend Canada and Canadian interests, and form an important constituency within the broader Canadian national security community.

The relationship differs between DND and each of the Portfolio organizations; therefore, the level of service provided to each will vary accordingly. Each organization has varying needs and responsibilities so they must be treated fairly but differently from one another. These reporting arrangements are designed to ensure accountability while maintaining an “arm’s length” relationship. This difference in associations is not unlike that of Portfolios in other government departments.

Treasury Board uses the Management Accountability Framework to place increased emphasis on Portfolio Coordination. The Privy Council Office is also directing government-wide adherence to Portfolio Coordination in accordance with the Federal Accountability Act. DND has a Portfolio Governance and Coordination section to address these requirements.

Further information on priorities, organization and accountability can be found in the Report on Plans and Priorities.

The Departmental Organization and Structure

The DND/CF has a unique personnel structure made up of two separate components – one military and one civilian. This table depicts the number of personnel in each component:

Departmental Personnel Figures by Component as of March 31, 2009
Military members: Regular force: Primary Reserve force:	65,897 39,199
Civilian employees (Indeterminate):	29,370
Total Military and Civilian Personnel:	134,466

The Chain of Command

National Defence Headquarters (NDHQ) in Ottawa provides broad direction for administration and operations, with specific execution being assigned to the various elements of the Department and the CF located across the country.

The DND/CF Ombudsman reports directly to and is accountable to the Minister of National Defence. His office was established to act as a direct source of information, referral and education to assist individuals to access existing channels of assistance and redress within DND/CF. To ensure the confidentiality of information brought to his attention, the Ombudsman has been given autonomy for Access to Information matters related to his office. Accordingly, a separate annual report will be tabled respecting the administration of the Privacy Act (ATIA) within the Office of the Ombudsman.

The Canadian Forces Grievance Board, the Military Police Complaints Commission and the Office of the CSE Commissioner are institutions separate and apart from DND. Consequently, these institutions are not accounted for in this Annual Report.

Organizational Chart

http://www.forces.gc.ca/site/about-notresujet/org-eng.asp

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2. Directorate Access to information and Privacy (DAIP)

The Purpose of the Privacy Act

The Privacy Actcame into force on July 1, 1983. Under subsection 12(1) of the Act, Canadian citizens, permanent residents (within the meaning of the Immigration Act), all inmates (within the meaning of Part 1 of the Corrections and Conditional Release Act), and individuals present in Canada (who are not Canadian citizens, permanent residents or inmates) have a right of access to their personal information that is under the control of a government institution.

This right of access is balanced against the legitimate need to protect sensitive information and to permit the effective functioning of government while promoting transparency and accountability in government institutions.

In addition, the Act protects an individual's privacy by preventing others from accessing his or her personal information and it speaks to the collection, retention, accuracy, disposal, use and disclosure of personal information.

The Mission of DAIP

The mission of DAIP is to deliver Access to Information and Privacy Services, professional advice and training within DND and the CF.

The Mandate of DAIP

The mandate of DAIP is to act on behalf of the Minister of National Defence in promoting awareness, enforcing compliance with legislation, regulations, and government policy and to create departmental directions, including standards, in all matters relating to the Access to Information Act and the Privacy Act. DAIP authority in this regard extends to all elements of DND/CF – except for the Office of the Ombudsman, the Military Police Complaints Commission, the Office of the CSE Commissioner and the Canadian Forces Grievance Board who are separate institutions under the control of the Minister of National Defence and are responsible for their own Access to Information and Privacy administration.

The Delegation Authority

At DND/CF, a single Coordinator, the Director of DAIP, administers and coordinates both the Access to Information Act and the Privacy Act within the organization. For organizational matters, DAIP comes under the authority of the Assistant Deputy Minister Finance and Corporate Services (ADM Fin CS), via the Director General Corporate and Shared Services (DGCSS). DAIP seeks advice on legal, public affairs, policy, and operations security matters from other organizations and specialists as required.

In accordance with section 73 of the ATIA and PA, a delegation of authority, signed by the Minister of National Defence, designates the person holding the position of Director Access to Information and Privacy and the person(s) holding the position(s) of Deputy Director Access to Information and Privacy to exercise all powers and functions of the Minister as the Head of institution under the Acts. It also designates other specific powers and functions to employees within DAIP. See annex B.

DAIP Organization

The Access to Information and Privacy (ATIP) organization within DND/CF operates with a staff of 65 civilians, 1 military personnel and 3 consultants. The DAIP work force is divided into working groups consisting of an Administration Support Service Group, a Privacy Group, three Access to Information (ATI) Groups and a Strategic Planning and Policy Group that handles all ATIP policies, training and IT needs.

It is the Privacy Group, headed by a Deputy Director, that responds to all requests under the Privacy Act for records. This group also provides other Privacy services such as reviewing records for informal release to Next of Kin in the case of death.

The Strategic Planning and Policy Group contains a Compliance and Training section that provides advice on Privacy matters to the Directorate, DND/CF members and to the public. They also monitor compliance within DND/CF with the Privacy Act and associated policies and guidelines as well as conducting training for DND/CF members.

DAIP establishes an annual business plan and sets annual performance objectives, which are monitored.

Personal Information Record Holdings

DAIP provides on a yearly basis an update of the Department’s information holdings to the Treasury Board Secretariat for publication. A description of the Personal Information Banks held by DND/CF can be found in the Info Source publications.

The Info Source publications can be obtained through public and academic libraries, constituency offices of federal Members of Parliament, and on the Internet at Info Source Publications.

Reading Room

A reading room is available to individuals wanting to review DND/CF publications, and other public materials under the control of the institution. Individuals interested in visiting the reading room must phone ahead to make an appointment. The phone number to call is 613-995-3821.

The DND reading room is located at:

Place de Ville, B Tower, 17th Floor
112 Kent Street
Ottawa, Ontario.

DAIP Internet Site

DAIP Internet Site may be viewed at http://www.admfincs.forces.gc.ca/aip/contacts-cn-eng.asp.

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3. Report on the Access to Information Act

Requests under the Act

During this reporting period DAIP processed a significant number of Access to Information Act requests. The operational sensitivity of the corresponding records continues to require intense scrutiny and meticulous review at all levels.

In the fiscal year 2008-2009, DND/CF received 1,669 requests under the Act. Out of the 674 requests that were carried over from the previous fiscal year, 100 were in “deemed refusal”.

The 1,669 requests received represent a considerable caseload not just in numbers, but also in terms of the scope, complexity, sensitivity and volume of documents. In spite of the large volume, the Department was able to complete the processing of 1,761 requests, thus reducing the backlog from the previous year. 582 requests were carried forward to 2009-2010 of which 231 were in “deemed refusal”.

At 860, by far the largest number of requests came from the media, accounting for more than half of all requests received. The substance of the requests covered the entire range of DND/CF records. Requests for information were often related to military operations in Afghanistan, detainees, and contracts for various equipment and services. As well, information was requested on general management policies and directives.

Responses to formal ATI requests in 2008-2009 involved a page-by-page review of 193,081 pages of which 77,562 were released in whole or in part.

During this period, DND/CF also received 451 consultations from other departments for ATI requests involving DND/CF records or issues, an increase of more than 9% over the previous year. The consultations involved the review of 48,213 pages.

In addition, 1,401 informal requests for information involving the review of 189,318 pages were processed by DAIP in support of DND/CF broader objective of providing Canadians with relevant information on an informal and timely basis. This number does not include numerous e-mails or telephone calls from potential applicants who were redirected to other informal routes in order to obtain the information.

DAIP also acted as a resource for DND/CF officials and offered advice and guidance on the provisions of the legislation. DAIP was consulted on issues relating to a range of matters including surveys, records management, Privacy Impact Assessments, pay, privacy caveats, draft policies and the review of documents from internal DND/CF groups.

Disposition of Completed Requests

There were 1,761 requests completed in 2008–2009. The disposition of the completed requests was as follows:

330 fully disclosed;
854 partially disclosed;
51 exempted in entirety;
19 excluded in entirety;
17 transferred to another institution;
104 abandoned by applicants;
3 were treated informally; and
383 could not be processed.

Completion Time and Extensions

The 1,761 requests in 2008–2009 were completed in the following timeframes:

580 within 30 days or less (33%);
235 within 31 to 60 days (13%);
326 within 61 to 120 days (19%); and
620 took 121 days or over (35%).

In 1,181 instances, DAIP found it necessary to seek an extension beyond the 30-day prescribed time limit, to search through a large volume of records, or to consult other government institutions and/or third parties. This does not mean that extensions were applied to 1,384 requests as multiple extensions may be applied to some requests.

Exemptions Invoked

DAIP invoked exemptions under the Act a total of 2,462 times, as follows:

141 under section 13 (Information obtained in confidence);
2 under section 14 (Federal–provincial affairs);
487 under subsection 15(1) (International affairs and defence);
152 under section 16 (Law enforcement and investigations);
20 under section 17 (Safety of individuals);
5 under section 18 (Economic interests of Canada);
599 under subsection 19(1) (Personal information);
274 under section 20 (Third party information);
561 under section 21 (Advice, etc.);
26 under section 22 (Testing procedures, tests and audits);
148 under section 23 (Solicitor-client privilege);
41 under section 24 (Statutory prohibitions against disclosure); and
6 under section 26 (Refusal of access where information to be published).

Exclusions Cited

Exclusions under sections 68 and 69 were invoked a total of 131 times.

Complaints and Investigations

A total of 291 complaints were received from the Office of Information Commissioner in 2008–2009. The reasons for the complaints were as follows:

176 Extension;
54 Delay;
21 Refusal/Exemption;
0 Refusal/General;
34 Missing Information;
1 Miscellaneous;
0 Fees; and
5 Refusal/Exclusion (section 69)

A large number of requests can be attributed to a relatively small number of applicants. In October 2008, for example, DAIP received 58 complaints in one day from a single individual.

During this reporting period, 345 complaint investigations were completed by the Office of the Information Commissioner. The breakdown of the conclusions is as follows:

115 Discontinued;
69 Not substantiated;
5 Not well-founded; and
156 Resolved.

It should be noted that only 45% of complaints were found by the Office of the Information Commissioner to have had any merit.

Federal Court Cases

In 2005, an Application for Judicial Review was filed in the Federal Court to examine the decision taken by National Defence to deny access to records held in the office of the Minister of National Defence. This court case, referenced as T-210-05, and pertaining mainly to the question of whether the Office of the Prime Minister and of the Ministers of National Defence and Transport are “government institutions” for the purposes of the Access to Information Act was still before the court during this reporting period.

There were no new court cases for 2008-2009.

Fees

During the reporting period, the total fees collected amounted to $8,420 for application fees and $7,999.35 for reproduction, searching, preparation and computer processing costs. Fees valued at a total of $13,243.20 were waived in 1,240 instances.

Costs

During 2008–2009, an estimated $4,040,498 in salary costs and $193,478 in administrative costs were incurred by DAIP to administer the Access to Information Act. These costs do not include the resources expended by the program areas of DND/CF to meet the requirements of the Act.

Policies and Procedures Implemented or Revised

DAIP consults the Strategic Joint Staff Information Support Team (SJS IST) on requests that result in records containing matters of operational security. This is a particularly important process given CF operations in Afghanistan but it has tended to slow down the departmental response time to ATI requests. During this reporting period DAIP and SJS IST agreed to a policy change intended to speed up this consultation process. The main change involves DAIP sending for review only the records intended for release with the exemptions and exclusions already applied. This cuts down on the amount of records in the consultation process. DAIP also undertook measures to expedite the delivery of consultation packages. These changes have increased the efficiency of consultations and it is anticipated that 2009-2010 will show marked statistical timeline improvements.

The DAIP Professional Development Plan (PDP) was put into full swing in this reporting period with 7 analysts participating. The PDP allows for participants to join at the PM-02 level and, after participating in a progressive series of assessed Job Training Assignments, to be promoted to PM-04 without competition. This program has been well received by the DAIP staff and has helped improve morale.

Summary of Significant Changes to Operations or Procedures

In response to the changes instituted by the Information Commissioner to expedite the complaint process, DAIP changed the procedures for dealing with administrative complaints. Those complaints are now handled on a priority basis by the Compliance and Training Team. This, along with the efforts of the Office of the Information Commissioner, has resulted in a large increase in efficiency in the complaint resolution process, as can be seen by the amount of complaints closed in this reporting period (345 vs 99 in 07-08).

This has the added benefits of freeing the Access Team analysts from dealing with administrative complaints so they can devote more time to the actual review of the records and accelerate the completion of requests as well as allowing the Compliance and Training Team to notify the Director of any systemic problems they may note in DAIP processing.

Changes implemented as a result of issues raised by the Information Commissioner

In response to the Information Commissioner’s review of DND and recommendations, the Department has acquired additional resources to handle the high volume of requests. More positions have been created and DAIP has expanded to the point where the Department has acquired additional space on the 15th floor of 112 Kent Street, part of which has been devoted to the DAIP Privacy Team. This will allow further expansion by the Access Teams on the 17th floor.

Changes implemented as a results of concerns by the Auditor General and others

No issues were raised by the Auditor General or others.

Training Sessions

During 2008–2009, DAIP continued to provide on a regular basis information sessions on the processing of Access to Information requests to DND/CF employees as required by the Government Policy on Access to Information (section 6.2.2 – “Access to Information Awareness”). In this reporting period a total of 62 training sessions were given and 1,367 participants were familiarized with the Act and given a better understanding of their obligations and of the process within DND/CF. Customized sessions were also provided to specialized groups. DAIP continues to fund training sessions outside of the National Capital Region. The training sessions are intrinsic to achieving increased compliance with both the Access to Information and Privacy legislation. On-site training sessions were provided to DAIP staff members. DAIP also hosted an information session recognizing the 25th Anniversary of the Access to Information and Privacy Acts at National Defence Headquarters that included an address by the Associate Deputy Minister.

ATIP employees continue to sensitize and guide third parties and requesters on the requirements of both pieces of legislation through dialogue as necessary.

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