National Defence was ordered to process additional records after an access-to-information investigation found that its original search had missed material and a later search produced 1,018 additional pages.
In National Defence (Re), 2026 OIC 59, dated Aug. 31, the Information Commissioner found the complaint well founded. The decision also upheld the protection of information that remained withheld after some redactions were lifted during the investigation.
The request concerned Canadian Forces Grievance Authority records relating to the Independent External Comprehensive Review of National Defence and the Canadian Armed Forces, covering June 1, 2020, to Feb. 22, 2023.
Second search found additional records
The requester identified specific records that appeared to be missing. National Defence carried out another search and, after clarification that only final versions in machine-readable format were sought, identified 1,018 additional pages.
The department explained which offices and employees had been asked to search, why they were selected, when searches occurred, and the information systems, date ranges and keywords used. Those particulars satisfied the commissioner that the subsequent search used appropriate parameters.
The original search was nevertheless unreasonable. The commissioner explained that institutions need not prove with certainty that no further records exist, but must show reasonable efforts by knowledgeable staff to locate responsive material.
National Defence initially committed to processing and disclosing the additional records by July 30, 2026. It later said it would miss that date, anticipated involving more offices in searches and could not provide a revised timeline.
The order requires processing of the additional records and a response within 36 business days after the final report. Any refusal of access to all or part of a record must identify the applicable provision of the Access to Information Act.
Advice and legal communications remained protected
The investigation also examined withholding decisions. In April, National Defence released information previously protected on the basis that disclosure could facilitate an offence, along with some material withheld as advice or deliberations.
The commissioner accepted that remaining advice was prepared to support senior decision-making and seek approval. It qualified under paragraph 21(1)(a), and the records did not fall within the statutory exceptions considered in the report. That conclusion made examination of overlapping exemptions unnecessary for the same material.
The department’s disclosure discretion was also upheld. It considered releasing severable portions, preserving candid advice and the fact that draft options did not represent adopted government positions.
Certain communications separately qualified for solicitor-client privilege. The commissioner found that they involved confidential legal advice and accepted the department’s decision to maintain privilege after consultation with the Judge Advocate General.
For Cabinet confidences, the commissioner could not inspect the excluded information. National Defence confirmed that legal services had reviewed the exclusion again and maintained it; the investigation found no applicable statutory exception to that exclusion.
The requester withdrew the challenge to personal-information and case-number redactions, so those were not further investigated.
Implementation was promised
National Defence advised the commissioner on Aug. 28 that it would implement the order. The report does not establish whether the additional response was later delivered. It also sets out Federal Court review rights.
The outcome requires proper processing and a further response, with lawful exemptions still available, rather than an unconditional release of every additional page.
