Decision pursuant to 6.1, 2022 OIC 31

Date of decision: June 2022

Summary

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 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 access to information request 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 emails that mention the requester’s name, which the requester states is unique, over a one-year period. The request further cites three employee email accounts most likely to contain responsive records, as well as one specific business unit of the institution.

Discussion

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 indicated that it fulfilled its duty to assist obligations under subsection 4(2.1) by communicating with the requester and attempting to target the request in order to ensure that the search was reasonable.

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. Despite stating that its communications with the requester included attempts to target the request in order to ensure that the search was reasonable, documentation provided by the institution in support of its subsection 6.1(1) application suggests that its communications with the requester, throughout, were focussed exclusively on narrowing the request’s scope.

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.

Abuse of the right of access

“Abuse” is commonly understood to mean a misuse or improper use.

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 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 nature and scope of the request, the purpose of the request, and the requester’s refusal to narrow the scope of the request, all support a finding of abuse of the right of access.

Specifically, the institution stated in its application that the wording of the request required the institution to search the email accounts of every employee. Further, this search could not be completed centrally, due to technological and legal restrictions on accessing employees’ email.

The institution alleged that the tone and contents of the requester’s communications suggested that they were not interested in the responsive records, but rather wished to vex the institution by engaging it in a lengthy and needless search for records that are purely personal and do not meaningfully contribute to the purposes of the Act.

The Commissioner was not satisfied that the nature or scope of the request support a finding that the request is an abuse of the right of access. The request targets emails (including attachments and metadata), over a one-year period, that specifically reference the requester’s unique name. It further provides examples of specific email accounts and a specific business unit where responsive records would most likely be found, while also raising the possibility of other email accounts containing the requested information.

The requester has made clear that they do not expect all employees to have responsive records and identified a starting point where they expected responsive records will be found. The requester, however, does not know definitively where all potential responsive records might be located. The fact that the requester cannot pinpoint with specificity the location of all potentially responsive records does not render the request an abuse of the right to make a request.

As for the contention that in order to respond to the request each of its employees would need to search their respective email accounts, I note that that the Act imposes an obligation on institutions to conduct a reasonable search for responsive records. The institution did not explain the basis for its suggestion that the only means by which it could meet this standard was via a search of each and every one of its employees’ email accounts. The institution also did not provide any information regarding the time needed for any one or more of its employees to search their email accounts for the specified information sought.

Further, the Commissioner found that the requester’s refusal to provide information to help narrow the scope of the search is not an abuse of the right to make a request. Again, an institution in receipt of a request is obligated to perform a reasonable search for responsive records. Although a requester is not entitled to decree the type of search that an institution performs in order to satisfy that standard, a request is not rendered abusive because the requester expresses views or opinions regarding the search that they believe can and / or should be performed.

In terms of the number of records potentially responsive to the request, there was no indication that the institution undertook any searches to gauge the accuracy of their projection.

There was no evidence that the requester is uninterested in obtaining the responsive records. There was also no evidence that the requester wishes to vex the institution by engaging it in a lengthy and needless search for records for some improper purpose, as alleged.

The request is in no way an abuse of the right of access because the information sought is personal to the requester. The purpose of the Act is “to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions”. An access request for information about oneself under the control of a government institution does not run counter to that objective and does not evidence that the request is an abuse of the right of access.

The institution did not meet its burden of establishing that the request is an abuse of the right of access.

Result

The Commissioner denied the application. The institution is required to act on the access request.

Date modified:
Submit a complaint