Decision pursuant to 6.1, 2019 OIC 2
An institution made an application to the Information Commissioner for approval to decline to act on an access request under subsection 6.1(1) of the Access to Information Act. The institution alleged that the access request is vexatious, is an abuse of the right to make a request and is in bad faith.
The institution explained that the requester is a former employee who was dismissed. Since this time, the requester has pursued other proceedings in relation to the termination. The requester has also submitted over a dozen requests under the Act and Privacy Act over a one-year period.
Is the request vexatious?
The term “vexatious” is not defined in the Act. This word is generally understood to mean with intent to annoy, harass, embarrass or cause discomfort. However, as noted by Justice Stratas in Canada v. Olumide, 2017 FCA 42, when defining “vexatious” it is best not to be overly precise; what is vexatious may come in all shapes and sizes and must therefore be assessed on a case-by-case basis. Further, the request must rise above being an annoyance or inconvenience to an institution (see: Insurance Corporation of British Columbia (Re),  B.C.I.P.C.D. No. 57 (BC OIPC), at para 4).
The institution claimed that the request was vague; that the request is repetitive with previous requests; that the requester used abusive language; and that there are concerns for the safety of employees in the institution.
Vagueness: The Commissioner found the request, on its face, to be sufficiently clear. Had the request required clarification, the institution had a duty to take reasonable measures to seek to clarify the request before asking for approval to decline to act on a request on the basis of vagueness. The institution did not indicate that any such efforts were made in relation to the request in question.
Repetitiveness: The Commissioner found that, on their face, each of the access requests seeks different information, albeit perhaps regarding similar subject matters. The institution provided no evidence that the requested information has previously been disclosed. A previous disclosure will only render a request vexatious if the institution shows that all of the requested information was the subject of that previous request and there has been no change in circumstances impacting the prospective disclosure of that information (see, for example: Insurance Corporation of British Columbia (Re),  B.C.I.P.C.D. No. 57 (BC OIPC)).
Abusive language: The institution argued that the request is vexatious because the requester’s previous communications have included personal comments on decisions made by the institution which could be considered inappropriate, insulting, intimidating, offensive and even derogatory, for example, references to wrongful and/or unjustified terminations of employment and unresolved disagreement to name a few.
The Commissioner found that the examples provided do not establish on a balance of probabilities that the requester has been “abusive” in their communications with the institution. Additionally, had the institution established that the request included abusive language, it could have segregated out the language it considered to be offensive from the description of the records sought; and/or could have asked that the requester refrain from using such language in the future (see, for example: Alberta Justice and Solicitor General (Re) (2015), AB OIPC File Reference F2015-16).
Safety: The institution also claimed that its employees have expressed concerns about the requester’s behaviour, resulting in “enhanced security”. However, the institution provided no evidence regarding how the safety concerns of employees are related to the access request and its processing of the access request.
The Commissioner found that the institution did not establish on a balance of probabilities that the request is vexatious.
Does the request amount to an abuse of the right to make a request for access to records?
Black’s Law Dictionary (10th ed.), defines “abuse” as “a departure from legal or reasonable use; misuse”. In Crocker v. British Columbia (Information and Privacy Commissioner), 1997 CanLII 4406, the British Columbia Supreme Court concluded that a request which diminishes the right of access of other requesters and/or affects the institution’s ability to perform its other duties and responsibilities may constitute an abuse of the right of access.
The institution claimed that the request amounts to an abuse of the right of access because:
- the number of access requests processed in 2018-19 was over a third higher than the previous year;
- this increase in the number of requests received is mostly due to the requests made by the requester;
- the time taken to process access to information requests has increased slightly due to the requester’s requests; and
- over 2,000 pages of records have been communicated to the requester in response to his multiple requests.
The institution did not explain how the rights of other requesters have been diminished by the request; for instance, how the request has prevented the institution from processing other requests or responding to those requests within the Act’s legislated time-limits. Nor did the institution address how its other duties and responsibilities have been impacted. Finally, processing more than 2,000 pages is not an excessive amount, particularly given the number of requests.
The Commissioner found that the institution did not establish on a balance of probabilities that the request amounts to an abuse of the right to make a request for records under the Act.
Is the request made in bad faith?
Black’s Law Dictionary, (10th ed.), defines “bad faith” as “dishonesty of belief or purpose”. Generally speaking, a request made for a wrongful, dishonest or improper purpose would be considered a request made in “bad faith”.
In some instances, a request has been considered to be in bad faith when the requester has had an improper objective above and beyond a collateral intention to use the information in some legitimate manner (see, for example: Conseil scolaire public de district du Centre-Sud-Ouest (Re), CanLII 56386 (ON IPC)).
The institution claimed that the requester’s true motivation in making request(s) is to validate their hypothesis of unjust dismissal, and that if this were valid, the information provided via previous access requests “could have been brought to the attention of the appropriate administrative or judicial bodies”.
Requesters are entitled to explore and exhaust their legal rights in seeking legal remedies to oppose an institution. Accordingly, evidence that the requester has pursued past administrative or legal actions against an institution, falls short of demonstrating that these specific access requests were made in bad faith (Waterloo (Regional Municipality) (Re), 2016 CanLII 1758 (ON IPC); Sunnybrook Health Sciences Centre (Re), 2015 CanLII 10867 (ON IPC)).
The Commissioner found that the institution did not establish on a balance of probabilities that the request is in bad faith.
Did the institution fulfill its duty to assist the requester?
While the institution claimed that the requester has support from the institution that meets the “10 principles of assistance to applicants” found at Appendix C of the Interim Directive on the Administration of the Access to Information Act; it did not indicate how these principles were met. The institution provided no evidence that it assisted the requester with the request prior to asking for approval to decline to act on the request.
The Commissioner found that the institution did not establish that it fulfilled its duty to assist obligations under subsection 4(2.1) prior to seeking approval to decline to act on the request.
The Information Commissioner denied the application and the institution is required to process the request.