Information Commissioner of Canada

Complaint under section 30 of the Access to Information Act - Department of National Defence - request A-2026-01143 - refusal under subsection 10(2) and section 15(1)

Hello,

This is a complaint under section 30 of the Access to Information Act against the Department of National Defence. It is made under paragraph 30(1)(a). I am self-represented.

The request.

On 29 August 2026 I made a request to [email]. The institution assigned file A-2026-01143. The request has 4 numbered items, all limited to briefing notes, memoranda to the Minister, option papers, assessments and analyses, with media monitoring excluded.

1. Any assessment of the reliability, legal enforceability, or durability of assurances given by any allied state to defend Canada against nuclear attack.
2. Any analysis, cost estimate, feasibility study, or option paper concerning an independent Canadian nuclear deterrent, or concerning Canadian nuclear latency or a recessed deterrent capability.
3. Any briefing note prepared for the Minister addressing Canada's options if extended nuclear deterrence provided by an allied state were withdrawn, conditioned, or reduced.
4. Any record concerning the nuclear certification status of aircraft acquired or to be acquired by Canada.

The request asked that, if no records responsive to any numbered item exist, the response state that expressly, item by item.

The response.

A letter dated 17 September 2026, signed by Shannon Clark Larkin, Executive Director, Access to Information and Privacy, released through Canada Post Connect on 18 September 2026 and received by me on 20 September 2026. The operative text is 2 sentences:

"We regret to advise you that this Department neither confirms nor denies records exist pursuant to section 10(2) of the Access to Information Act. If the documentation did exist, it would be exempted in its entirety pursuant to section 15(1) of the Access to Information Act."

Nothing else was said. No record was disclosed, no part of a record was disclosed, and no item was answered separately.

Grounds of complaint.

1. The same 2 sentences answer 3 separate requests. The institution sent me identical operative text on files A-2026-01143, A-2026-01144 and A-2026-01154 on the same day. Those 3 requests cover 14 numbered items on different subjects, from the legal durability of allied assurances to the nuclear certification of aircraft. Subsection 10(2) and subsection 15(1) both confer a discretion that is exercised on the information before the institution. Identical text across 14 items of different character is evidence that no discretion was exercised item by item.

2. Section 25 was not applied. Section 25 operates notwithstanding any other provision and requires disclosure of any part that can reasonably be severed. The notice claims exemption "in its entirety" for every item at once. Nothing in the notice shows that severance was considered.

3. Item 4 concerns information the United States has already published. The nuclear design certification of the F-35A was completed on 12 October 2023 and announced publicly by the F-35 Joint Program Office in March 2024. Canada has contracted for 88 aircraft of that type, and the type certification is a published fact of an allied state. Injury under subsection 15(1) must be reasonably expected. An expectation of injury from confirming the existence of records about a fact an ally has itself announced requires an explanation, and none was given.

4. The item-by-item statement requested under section 10(1)(a) was not made. Where no record exists, paragraph 10(1)(a) permits the institution to say so. The institution chose subsection 10(2) for all 4 items together, including the item covered by a published allied announcement.

What I ask the Commissioner to do.

Investigate the refusal on file A-2026-01143 under paragraph 30(1)(a).

Find whether the discretion under subsection 10(2) was exercised on each of the 4 items, and whether the injury test in subsection 15(1) was applied to each of them.

Find whether section 25 was applied at all.

Recommend that the institution answer each numbered item separately, identify for each item the paragraph of subsection 15(1) relied on, and disclose any part that can reasonably be severed.

I hold the release letter and the Connect delivery record and will forward them on request.

Respectfully,
Danilo Dzyuban

Re: Complaint under section 30 of the Access to Information Act - Department of National Defence - request A-2026-01143 - refusal under subsection 10(2) and section 15(1)

Hello,

This supplements my complaint of 20 September 2026 on file A-2026-01143.

The operative text is identical, word for word, in all 3 letters.

I have compared the 3 release letters of 17 September 2026 on files A-2026-01143, A-2026-01144 and A-2026-01154. The operative passage runs to 46 words and is the same in each, with no variation:

"We regret to advise you that this Department neither confirms nor denies records exist pursuant to section 10(2) of the Access to Information Act. If the documentation did exist, it would be exempted in its entirety pursuant to section 15(1) of the Access to Information Act."

Three requests, 14 numbered items, 3 different periods, and 1 text. Section 25 requires disclosure of any part that can reasonably be severed, and it operates notwithstanding any other provision. A single sentence applied to 14 items cannot show that severance was considered for any of them. I ask the Commissioner to require the institution to process each numbered item separately and to record, for each item, the decision taken under section 25.

Item 4 is already in the public domain, and both governments put it there.

The nuclear design certification of the F-35A was completed on 12 October 2023. The F-35 Joint Program Office confirmed the certification publicly in March 2024, and the confirmation was reported at the time by Breaking Defense and by Janes.

Canada's acquisition of that type is equally public. On 9 January 2023 Public Services and Procurement Canada announced the finalised agreement for 88 F-35A aircraft for the Royal Canadian Air Force, at a project value of 27.7 billion dollars.

Subsection 15(1) requires a reasonable expectation of injury. Where an allied government has announced the type certification and the Government of Canada has announced the purchase of 88 aircraft of that type, the injury cannot lie in the existence of departmental records on the same subject. I ask the Commissioner to require the institution to state, for item 4, what part of the requested information is not already public.

Respectfully,
Danilo Dzyuban

Re: Re: Complaint under section 30 of the Access to Information Act - Department of National Defence - request A-2026-01143 - refusal under subsection 10(2) and section 15(1)

Hello,

4 points of detail on file A-2026-01143, for the accuracy of the record.

1. The F-35A was operationally certified to carry the B61-12 on 12 October 2023. The F-35 Joint Program Office confirmed it on 8 March 2024, as reported by Breaking Defense that day. My earlier wording called it the design certification
2. The release of Public Services and Procurement Canada of 9 January 2023 gives the project cost as 19 billion dollars for 88 aircraft. The figure of 27.7 billion dollars is the later project estimate
3. The 3 release letters carry the signature block of Shannon Clark Larkin and the digital signature of Leslie Larabie, dated 17 September 2026
4. The 3 requests cover 2 periods. Files A-2026-01143 and A-2026-01154 run from 1 January 2020, and file A-2026-01144 from 1 January 2024

The grounds of the complaint are unchanged.

Respectfully,
Danilo Dzyuban