In an Aug. 23 report, Information Commissioner Caroline Maynard ordered Defence to respond 'without undue delay,' to a 10-month-old request from The Globe and Mail.Sean Kilpatrick/The Canadian Press
Canada’s access to information watchdog has issued a rebuke to the Department of National Defence, characterizing the government’s lack of response to a records request as “unacceptable.”
In an Aug. 23 report, Information Commissioner Caroline Maynard ordered Defence to respond “without undue delay,” to a 10-month-old request from The Globe and Mail. In response, the department declined and said it would instead turn to the courts for a review of Ms. Maynard’s decision.
Last fall, The Globe requested records related to a Defence statement about the origin of a strike on a Gaza Strip hospital on Oct. 17. The explosion killed an estimated 100 to 471 people – reports vary – and triggered conflicting accusations from Israel and Hamas.
The Defence statement, made on Oct. 21, said that an analysis by the Canadian Forces Intelligence Command showed that Israel did not strike the al-Ahli hospital, and that “the strike was more likely caused by an errant rocket fired from Gaza.”
Other Western countries and several media organizations reached similar conclusions after investigating the incident, as did Human Rights Watch in November.
A review of recent Defence statements shows that the al-Ahli hospital explosion appears to be the only incident in the continuing conflict that triggered such a reaction from Canadian authorities.
The Globe requested records and communications used to produce the statement and its conclusion on the day of its publication. Under the federal Access to Information Act, institutions have 30 days to respond to requests, which can be extended. Defence did not respond to the request nor did it give notice of an extension.
Last year, The Globe published Secret Canada, an investigation into the country’s faltering access to information system. Among other findings, Secret Canada showed that government departments, at all levels, routinely flout their legal obligations without consequences and fail to respond to requesters within the required time limits.
In December, The Globe filed a complaint with the Office of the Information Commissioner.
In her report, Ms. Maynard found that the Canadian Forces Intelligence Command had not yet provided any documents to Defence’s access to information office. The department was therefore unaware of the number of records involved or when it could respond.
“I find the delay … to retrieve all relevant records unacceptable,” Ms. Maynard wrote. “I urge the Minister to remind his public officials, as well as military personnel, of their responsibility in providing timely access to information to Canadians.”
Ms. Maynard found that Defence’s failure to respond “is in clear contravention of DND’s obligations under the Act and undermines the credibility of the access system.” She ordered the department to answer The Globe’s request “no later than 60 business days after the date of the final report.”
An initial report was shared with the Minister of National Defence in July, Ms. Maynard wrote. On Aug. 19, the department said it would not be implementing the order. Instead, it said it would apply to the Federal Court to review Ms. Maynard’s decision.
Kened Sadiku, a Defence spokesperson, did not say why the department opposed the commissioner’s order and did not reply to The Globe’s request. He said the department continues to work on it.
He said Defence takes its access to information responsibilities seriously and is “taking steps to better uphold it as a priority.” Mr. Sadiku said the department is addressing request backlogs with an in-house development program for access to information analysts and new software, which should be fully implemented by 2026.
In her report, Ms. Maynard reiterated recommendations she had already made to Defence: to develop “proper processes and procedures” to ensure that department offices “abide to their responsibilities to provide responsive records in a timely fashion” along with “performance indicators to hold its senior officials accountable for delays.”
She said Defence confirmed it would be implementing them. In his e-mail to The Globe, Mr. Sadiku did not address questions about the recommendations or timeline for implementation.
In its latest annual report, Defence said it responded to access to information requests within legal time limits 61.7 per cent of the time in 2022-23, a decrease from the previous year. Overall, Ottawa said federal institutions responded within legal time limits to 72.3 per cent of requests that year.
In May, Defence earned the 2023 federal Code of Silence Award for Outstanding Achievement in Government Secrecy for taking three years to respond to an access request by a researcher.
The Code of Silence Awards are presented annually by the Canadian Association of Journalists and other organizations to “call public attention to government or publicly funded agencies that work hard to hide information to which the public has a right to under access to information legislation.”