Decision pursuant to 6.1, 2021 OIC 30
Date: November 2021
An institution submitted an application to the Information Commissioner for approval to decline to act on an access to information request under subsection 6.1(1) of the Access to Information Act. In its application, the institution submitted that the request was both vexatious and an abuse of the right of access.
The Information Commissioner found that the institution established that the request is an abuse of the right of access. Given the Commissioner’s conclusion, it was not necessary to consider as well whether the request was also vexatious.
The application is approved.
Subsection 6.1(1) provides that the head of a government institution may seek the Information Commissioner’s written approval to decline to act on an access request if, in the opinion of the head of the institution, the request is vexatious, is made in bad faith or is otherwise an abuse of the right to make a request for access to records. The institution bears the burden of establishing that the request meets the requirements under subsection 6.1(1) of the Access to Information Act.
The right of access to information to records under the control of a government institution has been recognized as quasi-constitutional in nature (Blood Tribe (Department of Health) v. Canada (Privacy Commission), 2006 FCA 334 at para 24; see also: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 at para 40). Bearing this in mind, authorization to decline a request will only be granted if the application is supported by clear and compelling evidence (see, for example: Saskatchewan (Advanced Education) (Re), 2010 CanLII 28547 (SK IPC) at paras 43-47; Northwest Territories (Public Body) (Re), 2017 CanLII 73304).
The Access Request
The institution received an access request with respect to the materials produced for a specific course that it had offered, during a specific time period. The institution claimed that the request in question was vexatious because it was a) repetitive; and b) the requester had already received the institution’s response. It stated that the requester has made over 900 requests, “…all of which are closely related and overlap to a significant degree” and that at least nine of these requests have been for identical or substantially similar information. The institution’s position is that the requester “…is continually relying on the Access to Information Act to resubmit the same or similar requests because of dissatisfaction with a given response”. Finally, the institution maintained that it has already provided the requester with the requested records and that the requester has also already availed themselves of the right to complain to the Office of the Information Commissioner (OIC) regarding both the reasonableness of its search for records responsive to substantively the same request, as well as its redaction of information based on exceptions to the right of access.
In response, the requester acknowledged that a number of their access requests have been repetitive, yet maintains that their re-submitted requests “…were never intended to be vexatious or abusive …” / “…are not improper, [and] certainly not vexatious, or abusive in any way.”
Abuse of the right of access
“Abuse” is commonly understood to mean a misuse or improper use. The volume of requests submitted does not alone substantiate a finding of abuse (see London Police Services Board (re) (1995), Order M-618 (Ontario IPC)). However, the volume, along with other factors, may support a finding of abuse of the right of access.
In Saskatchewan, former Commissioner Gary Dickson identified some of these factors. He found that the repetitive nature of the requests, combined with the cyclical manner in which both access requests and request for review were submitted, amounted to a finding of abuse of process (see Saskatchewan (Advanced Education) (Re), 2010 CanLII 28547 (SK IPC)).
Abuse of the right of access must be looked at on a case-by-case basis and may in some situations arise based on a combination of factors.
In the present instance, the fact that the requester submitted over 900 access requests does not itself establish that the current request is an abuse of the right of access. As noted by Saskatchewan’s former Information Commissioners “…a single applicant may submit a large number of access requests for various records to a government institution without making illegitimate use of the access rights afforded by [the Act]” (see for example: Saskatchewan (Advanced Education) (Re), 2010 CanLII 28547 (SK IPC).
The issue, however, is the duplicative nature of the current request, given previous requests made by the requester to the institution over time.
Upon comparing the wording of the current request with previous requests, the Commissioner was satisfied that no “new” information was being sought; the records currently requested were entirety captured by previous requests made.
The requester, in their submissions, expressed a need to submit duplicative requests because they have previously overlooked or failed to file complaints with the OIC, within the time-period allowed, concerning the institution’s responses. However, this was not supported by the evidence before the Commissioner. Specifically, materials submitted by the institution in support of its application confirmed that the OIC recently completed an investigation of complaints by the requester involving the institution’s alleged refusal to disclose information and conduct a reasonable search for records in response to an analogously worded request for the same information.
In the present instance, the requester did in fact avail themselves of the right to complain under the Access to Information Act.
The current request is part of a pattern of behaviour involving the requester’s repeated requests for substantively the same information. This form of repeated request can unduly burden institutions to the potential detriment of the legitimate exercise of others’ rights under the Access to Information Act:
… By overburdening a public body, misuse by one person of the right of access can threaten or diminish a legitimate exercise of that same right by others …. Such abuse also harms the public interest, since it unnecessarily adds to public bodies' costs of complying with the Act. … (British Columbia (Children and Family Development) (Re), 2020 BCIPC 17 (CanLII), citing Auth. (s.43) 99‐01, at p.7)).
The Commissioner found that in the present instance, the requester’s duplicative request is a misuse of the Access to Information Act and constitutes an abuse of the right of access. While the right of access is broad, the requester must be reminded that this right should not be abused, so as to have a negative impact on the rights of other requesters.
When a requester is not satisfied with the result of an access request, their recourse is to make a complaint with the OIC. When the same requester is not satisfied with the response received from the OIC, their recourse is with the Federal Court. Submitting multiple requests for information that has already been obtained from an institution, as was done in the present instance, does not constitute a proper use of the Access to Information Act.
Given the Commissioner’s conclusion that the request is an abuse of the right of access, it was not necessary for her to further consider whether the request is also vexatious.
The Commissioner granted the application. The institution is required to advise the requester of its decision whether to decline to act on the access to information request, and its reasons.