Information Commissioner Files Two New Lawsuits Against Defence Minister for Failure to Disclose Records

Information Commissioner Files Two New Lawsuits Against Defence Minister for Failure to Disclose Records
Information Commissioner Caroline Maynard prepares to appear at the Standing Committee on Access to Information, Privacy and Ethics, in Ottawa, on Mar. 7, 2023. (The Canadian Press/Justin Tang)
Noé Chartier

Canada’s information watchdog has launched two news lawsuits against Defence Minister Bill Blair last week over his department’s failure to release internal records.

The lawsuits were filed in Federal Court on Feb. 20 and both relate to the department not responding to access-to-information requests.

The Office of the Information Commissioner (OIC) had investigated two complaints of non-compliance in the production of records and subsequently told DND to comply.

Following inaction by the department, the OIC ordered the minister last fall to provide the requested documents. The non-responsiveness led the commissioner to file the lawsuits.

“The Minister’s ongoing violation of his legal duty to implement the Commissioner’s biding Order issued under the [Access to Information] Act is contrary to the law,” read both statements of claim from the OIC.

One of the access-to-information requests related to the lawsuit seeks to obtain three documents from the Directorate of History and Heritage, including a 1961 record on “Soviet Sea-power.”

The other request is seeking documents from 2003 evaluating the “implications of a new Canadian deployment to Afghanistan on Canada’s capability to participate in an invasion of Iraq.” Canada stayed over a decade in Afghanistan but didn’t participate in the Iraq War.

The two new lawsuits come after the OIC filed a first lawsuit against Mr. Blair in December, pertaining this time to DND withholding records on COVID-19 policies, including the military’s vaccine mandate.

‘Extraordinary Recourse’

Information Commissioner Caroline Maynard appeared on Feb. 26 at the House of Commons defence committee as part of its study on the transparency of DND and discussed the legal actions.

She said having to file lawsuits was an “extraordinary recourse,” and shouldn’t have to be employed to obtain the production of documents.

“It raises doubts about my authority, and more importantly, the credibility of the access-to-information system of the federal government,” she told MPs.

Conservative Party MP and defence critic James Bezan asked Ms. Maynard what causes the transparency issues within the department, noting he’s been waiting for years to obtain responses to his own access-to-information requests.

“Has this been because it’s the department or the minister; are they incapable, are they incompetent? Is it a lack of leadership or is it a political scandal and cover up?” he said.

Ms. Maynard replied that there are many factors affecting a department’s ability to respond, such as information management, culture, and the lack of resources or tools. “Often the leadership has an impact as well,” she said.

Liberal MP Darren Fisher also expressed frustration with the matter of transparency in DND and said his government needs to improve.

“We know historically how bad things were under the previous government, but my goodness, it doesn’t seem like it’s getting a lot better,” he said.

Defence Minister Blair appeared at the committee on Feb. 12 and also said his department must do better, noting that transparency is “fundamental to our democracy.”

He noted DND received 2,241 new access-to-information requests during financial year 2022-2023 and that 61 percent were closed within the legislative timelines. Mr. Blair said the closing time had increased from the year prior in what constitutes a “general upward trend.”

While mentioning that DND and the Canadian Armed Forces are large organizations dealing with highly sensitive information, he said “there’s never an excuse for failing to meet our legal requirements. I didn’t come here today to offer excuses.”