Title: DND and CAF Sue to Block Release of Critical Intelligence Report

OTTAWA — The Department of National Defence (DND) and the Canadian Armed Forces (CAF) have initiated a lawsuit against the National Security and Intelligence Review Agency (NSIRA) to prevent the release of a report that raises concerns about their handling of human intelligence sources. The lawsuit, filed in late August, seeks to have a Federal Court judge overturn NSIRA's decision to publish a redacted version of the report from 2023 under access to information laws.

DND and CAF argue that NSIRA acted "unreasonably" by not applying all requested redactions, which they claim protect sensitive information related to national defense and solicitor-client privilege. The report in question critically examines the practices of DND and CAF regarding the management of human intelligence sources, suggesting that some activities may violate legal standards.

This case is poised to test the boundaries of what information can be deemed too sensitive for public disclosure by an intelligence review agency. It will also assess the extent of NSIRA's discretion in denying redaction requests from the organizations it reviews.

Civil rights and transparency advocates have frequently criticized the government for overclassifying documents and using broad national security exemptions to withhold information. As of now, NSIRA has not responded to the lawsuit. An NSIRA spokesperson stated, "NSIRA remains committed to the principles of transparency, accountability, and the rule of law in all aspects of its mandate."

A summary of the investigation included in NSIRA's 2023 annual report highlighted troubling findings, such as deficiencies in CAF's duty of care for its intelligence sources and inadequate information provided to Armed Forces commanders and the Minister of National Defence regarding human source-handling operations.

Despite the report being classified, a redacted version was provided to the government in December 2023, but it has not yet been made public. DND and CAF indicated that NSIRA was expected to release this redacted report last month after extensive discussions over what sensitive information should be withheld. However, just days before the scheduled release, the two federal bodies filed their lawsuit to block it.

In their legal action, DND and CAF assert that NSIRA rejected a significant number of their proposed redactions. They claim that they were unable to reach a final agreement on what should be redacted. The lawsuit contends that NSIRA made a legal error by refusing these redactions, which DND and CAF argue are necessary to protect national defense and legal privileges.

DND and CAF are requesting that the Federal Court quash NSIRA's decision to publish the current redacted report and allow them to present further arguments regarding the necessary redactions. They are also seeking an injunction to prevent the report's publication until the court reaches a decision.

The lawsuit states, "The risks to national defense, and to the government, in the event of disclosure or publication are significant and must be properly weighed by this Court. The weighing of risk by NSIRA in the decision at issue amounts to an unreasonable and/or improper exercise of its discretion."

The summary of the review in NSIRA's annual report revealed that the agency made eight recommendations to DND and CAF concerning their human source handling program. These recommendations aimed to address issues such as the lack of accurate and consistent information provided to CAF commanders when assessing the risks associated with specific sources. The review also indicated that existing rules permitted potentially illegal source handling activities, particularly concerning sources linked to terrorist groups.

Additionally, the report identified gaps in DND and CAF's duty of care for their sources, urging the organizations to implement more robust measures to ensure the welfare and protection of these individuals. NSIRA concluded that the Minister of National Defence was not receiving sufficient information on human source-handling operations to maintain full accountability to Parliament.