Decision pursuant to 6.1, 2022 OIC 14
Date of decision: February 2022
An institution submitted an application to the Information Commissioner, under subsection 6.1(1) of the Access to Information Act, for approval to decline to act on an access to information request. The institution submitted that the request is vexatious and constitutes an abuse of the right of access. The institution further submitted that it had met its duty to assist the requester in connection with the request.
The Commissioner found that the institution had not met its duty to assist obligations under subsection 4(2.1) prior to seeking approval to decline to act. The Commissioner also found that the institution did not meet its burden of establishing that the information request is vexatious, or is an abuse of the right of access.
The application is denied and the institution is required to act on the access request.
The Access Request
The institution received an access to information request for specific parts of a training manual, used by one of the institution’s divisions.
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 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 Commissioner), 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).
Institutions, pursuant to subsection 4(2.1), also have an obligation to assist requesters in connection with their requests. As explained in the Guidance and Process documents issued by the Office of the Information Commissioner regarding 6.1 applications, institutions should only seek the Commissioner’s approval to decline to act on an access request after having made every reasonable effort to help the requester with the access request.
Duty to assist
The institution did not indicate how it fulfilled its duty to assist obligations under subsection 4(2.1).
The Commissioner found that the institution did not fulfil its duty to assist obligations under subsection 4(2.1) prior to applying for approval to decline to act.
The institution’s failure to fulfill its duty to assist obligations was a sufficient basis for rejecting the applications to decline to act, however, the Commissioner went on to make the following findings regarding the institution’s claim that the request is vexatious or is otherwise an abuse of the right to make a request.
The term “vexatious” is not defined in the Act. Although the term is generally understood to mean with intent to annoy, harass, embarrass or cause discomfort, Justice Stratas in Canada v. Olumide, 2017 FCA 42, noted that when defining “vexatious” it is best not to be overly precise.
Factors that may support a finding that a request is vexatious include:
- excessive volume of access requests;
- a request that is submitted over and over again by one individual or a group of individuals working in concern with each other;
- a history or an ongoing pattern of access requests designed to harass or annoy a public body;
- the timing of access requests.
These factors and all other relevant factors must be considered collectively when determining if a request is vexatious or not.
A request is not “vexatious” simply because a public body is annoyed or irked because the request is for information the release of which may be uncomfortable for the public body. (see for example: Saskatchewan (Advanced Education) (Re), 2010 CanLII 28547 (SK IPC), Insurance Corporation of British Columbia (Re),  B.C.I.P.C.D. No. 57 (BC OIPC),at para 4). Conversely, a request will be considered “vexatious” if it is established that the primary purpose of the request is not to gain access to the information sought, but instead is to continually or repeatedly harass.
The institution, in support of its claim that the request is vexatious, referred to the numerous requests submitted by the requester over time. The institution’s claims that the requests are vexatious, however, were not supported by clear and compelling evidence.
The Commissioner concluded that the institution did not establish that the volume of requests was enough to make the requests “vexatious”. 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 Access to Information Act]” (see for example: Saskatchewan (Advanced Education) (Re), supra.
While a number of the requests are similar, the institution did not show that any were duplicative or repetitive, or that the requester has already received in the institution’s response to a previous request(s) the information sought.
Although the institution stated that it had previously informed the requester that a particular training manual was no longer available, it failed to establish that the current request is for, much less limited to, information contained within that document.
If, as here, an institution maintains that the request is vexatious on the basis that the requester has previously sought and obtained the requested information, it must establish by way of cogent explanations, supported by evidence, that this is the case. It is not sufficient to simply assert that the request is repetitive. Furthermore, institutions need to provide clear explanations of how a similarly-worded, but not duplicate request, would yield the same records.
The Commissioner found that in this case, it was not clear, based on the institution’s application, that the current request encompasses information previously requested or that the institution already provided its response.
The institution did not meet its burden of establishing that the request is vexatious.
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, 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.
Although the requester has made numerous requests to the institution over the years, the institution did not establish that the current request is repetitive or that the requester has already received the institution’s response regarding the information sought. The Commissioner rejected the institution’s contention that a search for responsive records is unwarranted because there have been no changes in circumstances since the institution responded to previous requests for the same information.
The Commissioner again noted that, although the requester has made multiple requests, the institution had not established that any of the cited requests are duplicative or repetitive of other requests made. Other requests referred to within the applications were for different information and / or analogous information but for different timeframes. Therefore, the institution’s failure to identify records in response to some of the requester’s previous requests did not establish that the institution has already responded to the requests or that the requester has already received the requested records.
The Commissioner concluded that the institution did not establish that the requester’s actions demonstrate that their primary aim is not to gain access. The Commissioner stated that where an access request is motivated by an attempt to fact find or obtain proof of wrongdoing, these purposes cannot be considered unreasonable or illegitimate. Requesters may seek information to assist them in a dispute with a public body or to obtain information regarding what they consider inappropriate or unlawful behaviour.
The institution did not meet its burden of establishing that the request is an abuse of the right of access.
The Commissioner denied the application. The institution is required to act on the access request.