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The records that were requested clearly exist, and have existed since at least 21 July 2017

“We conclude that the Office of the JAG’s response to DAIP indicating that the requested records do not exist is potentially unlawful in that it seeks to deny a right of access to a record,” Vance’s office was told by Bernatchez’s staff. “The records that were requested clearly exist, and have existed since at least 21 July 2017.”

At least three officers in Bernatchez’s organization raised ethical or legal concerns about the decision to withhold the records.

At one point, one of the officers acknowledged the attempt might be discovered by the Information Commissioner while another pointed out what was being done was “unlawful” and “possibly criminal.”

Photo by THE CANADIAN PRESS/Justin Tang

Despite that, Information Commissioner Caroline Maynard, who worked as the legal counsel at the Judge Advocate General’s Office from 2001 to 2006, determined the situation resulted from “a lack of oversight” on how requests were being handled. An RCMP officer assigned to the military police investigation unit was also given the evidence handed to Vance’s office. The police officer determined there was no “malicious intent” and the issue was linked to “a misapplication of the Access to Information Act,” according to the DND.

Instead, the department put much of the blame on an unnamed clerk in the DND Access to Information branch who hadn’t challenged the Judge Advocate General’s office when it claimed the report didn’t exist.

In explaining to Maynard what happened, the department’ s Access branch management noted the analyst was “at the time a new hire with little experience in access and with the Act, and was managing a heavy caseload.”