National Defence, Access to Information and Privacy

The letter · 23 September 2026

Request under the Access to Information Act - records of HQ NORAD held by Department of National Defence personnel, and the Department's position that those records are not under its control

Hello,

I make this request under section 6 of the Access to Information Act. I am a person present in Canada, entitled to make it under subsection 4(1) as extended by the Access to Information Act Extension Order, No. 1.

WHY THIS REQUEST EXISTS.

On 23 September 2026 the FOIA office of NORAD and USNORTHCOM at Peterson Space Force Base wrote to me, in answer to a request under 5 U.S.C. 552: "NORAD as a bi-national organization is not subject to the Access to Information Act (ATIA) requests. In coordination with Directorate Access to Information and Privacy, personnel posted to HQ NORAD should not be tasked with ATIA requests. All records under the control of DND are subject to the Act, but documents and IT systems used by personnel posted to HQ NORAD are not physically under the Department's control."

That is a statement of the Department's position under a Canadian statute, made by a United States office, and attributed to the Department's own Directorate. The Supreme Court of Canada set the test for control of a record in 2011 SCC 25, and physical possession is not the test. This request puts the Department's position on its own file.

THE RECORDS.

Period: 1 January 2020 to the date of processing.

1. Any record held by the Department, including any record held by members of the Canadian Armed Forces or employees of the Department posted to HQ NORAD, that estimates the cost of the Canadian portion of the NORAD mission, the sharing of NORAD costs between Canada and the United States, or the cost to either state of the aerospace defence of Canadian territory.

2. Every policy, directive, guideline, legal opinion or other instrument under which the Department treats records used by personnel posted to HQ NORAD as not under its control for the purposes of the Act, with the date each came into force.

3. Any record of coordination between the Directorate Access to Information and Privacy and the FOIA office of NORAD and USNORTHCOM concerning requests under either the Act or 5 U.S.C. 552, from 1 January 2026 to the date of processing, including any record that names me or refers to my request of 19 September 2026.

4. If no record responsive to item 2 exists, a statement to that effect naming the officer who conducted the search, under subsection 4(2.1).

Where no record responsive to any numbered item exists, state that expressly, item by item.

I ask that the application fee be waived under subsection 11(2). The Department waived it on files A-2026-01143, A-2026-01144 and A-2026-01154, on the same facts. I ask to receive the records electronically at this address, and I ask for written confirmation of the date of receipt and the file number.

Respectfully,
Danilo Dzyuban