Decision pursuant to 6.1, 2022 OIC 35
Date of decision: July 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 Information Commissioner found that the institution met its burden of establishing that the access request is an abuse of the right of access. In particular, the Commissioner found that the request is part of a pattern of behaviour involving the requester’s repeated requests for substantively the same information. The Commissioner also noted that most of the information being sought has either been provided by the requester to the institution, or has already been provided to the requester by the institution. The Commissioner also found that the institution met its duty to assist obligations under subsection 4(2.1) prior to seeking approval to decline to act. Given the Commissioner’s conclusion, it was not necessary to further consider whether the request was also vexatious.
The application is granted.
The Access Request
The institution received an access to information request for records under the control of the institution submitted by, or provided to, the requester, regarding disclosures under the Public Servants Disclosure and Protection Act.
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.
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.
According to the institution, over the past seven years, the requester has submitted eight repetitive and overlapping access requests all related to the same subject matter as the most recent request, which is the subject of this application.
The institution stated that the requester’s initial request was not unreasonable, but that the requester refuses to clarify the scope of their most recent request to apply to the time period between their last request and this new request. As such, the requester’s refusal to adjust the scope of their request suggests that they are less interested in obtaining information than in asserting their right of access.
Further, the institution indicated that the requester’s stated purpose in making the most recent request was to determine whether the institution had retained all of the information that they had submitted to the institution, a statement that was not refuted by the requester.
Finally, the institution alleged that, similar to the circumstances in the OIC’s Decision pursuant to 6.1, 2021 OIC 30, the issue here is not necessarily the volume of the access requests, but their duplicative nature. This pattern shows that there is no reason to expect that the requester will stop making access requests and no prospect that their requests will facilitate access to new records, or records that they do not already have in their possession.
The requester was given multiple opportunities to provide submissions regarding this application, but the Commissioner had not received any relevant submissions by the date of its decision.
In the present instance, the fact that the requester has submitted eight 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 and repetitive nature of the requests, in combination with the fact that the information that the requester is seeking has largely been provided by the requester to the institution.
Upon comparing the wording of the current request with the previous requests, as well as the clear evidence submitted by the institution on this point, the Commissioner was satisfied that:
- all subject matter of the current request is captured in one or more of the previous requests made by the requester; and,
- the time frame of the current request is almost entirely captured in one or more of the previous requests made by the requester, with the exception of the time period between the last completed request and the current one.
The institution had offered to reduce the scope of the request to process any records not covered by previous requests, to ensure that the requester would be provided with the information sought while avoiding an undue burden being placed on the institution. The requester did not accept this offer.
The Commissioner found that the current request is part of a pattern of behaviour involving the requester’s repeated requests for substantively the same information. In addition, most of the information being sought has either been provided by the requester to the institution, or has already been provided to the requester by the institution. In this context, the Commissioner accepted the institution’s position that it is unlikely that the current request would facilitate access to records that the requester does not have already, even for the time period that is not covered by previous requests.
Regarding the purpose of the request, the Commissioner agreed that the requester’s refusal to adjust the scope of their requests tends to suggest that they are less interested in making a productive and good faith request than in asserting their right of access. As such, the Commissioner concluded that the request was not made for the purpose of gaining access.
The institution met its burden of establishing that the request is an abuse of the right of access.
A statutory scheme of access only works if common sense and responsible behaviour prevail on both sides. (See Decision pursuant to 6.1, 2021 OIC 20) While the right of access is broad, the requester must be reminded that this right should not be abused:
“… All rights come with responsibilities… 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)).
Given the Commissioner’s conclusion that the request is an abuse of the right of access, it was not necessary to further consider whether the request is also vexatious.
Duty to assist
The institution indicated that it fulfilled its duty to assist obligations under subsection 4(2.1) by offering to clarify the request with the requester to apply to records created or obtained since the requester’s previous request, and confirmed the requester could receive copies of their previous requests. Second, the institution sought to clarify information in the request that was inaccurate; namely, that the request contained names of individuals that did not work at the institution, as well as a reference to another institution. The requester ultimately did not answer the institution’s questions regarding the request.
The Commissioner found that the institution’s questions were clear and its efforts comprehensive in the circumstances.
Both parties have an obligation to collaborate. The requester has an obligation to provide sufficient clarity to the institution so it may process the request under the Act. If the institution requires further clarification in order to process the access request, it has an obligation in terms of duty to assist, to seek this from the requester. (See Decision pursuant to 6.1, 2020 OIC 19)
The requester did not answer the institution’s questions regarding the request. Therefore, in the circumstances of this request, the institution’s efforts to ensure that the requester would be provided with the information sought while avoiding an undue burden being placed on the institution were reasonable.
The Commissioner was satisfied that the institution fulfilled its duty to assist obligations under subsection 4(2.1) prior to seeking approval to decline to act on the request.
The Commissioner granted the application.