Decision pursuant to 6.1, 2022 OIC 49
Date of decision: December 2022
An institution submitted two applications to the Information Commissioner for approval to decline to act on two (2) requests for information under subsection 6.1(1) of the Access to Information Act. It also asked that the Office of the Information Commissioner (OIC) review any future requests that fall within the “same pattern”.The head of the institution was of the opinion that it had met its duty to assist, and that the requests were made in bad faith and also an abuse of the right to make a request.
The Commissioner found that the institution not only did not fulfill its duty to assist obligations under subsection 4(2.1) of the Act, but it also failed to establish that the requests were made in bad faith or were otherwise an abuse of the right to make a request. As the institution did not establish that these applications had merit, the Commissioner did not consider its further request to review future similar requests.
The Commissioner denied the applications.
The Access Requests
The institution received two access to information requests for records relating to investigations / findings etc. involving certain groups of individuals, events and /or subject matters.
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 submitted that there had been no substantial challenges in responding to the individual requests and thus, there was no need to seek clarification with the requester. The institution also alleged that the requester is motivated in part with dissatisfaction with the outcome of a grievance. They submitted that the duty to assist was met because the Office of Primary Interest (OPI) involved in these requests provided reasonable and appropriate assistance to the requester to obtain information regarding their grievance. However, this did not establish that the institution made a reasonable effort to assist the requester with the current access requests.
As the institution failed to make every reasonable effort to assist the requester in connection with the requests, it was not in a position to seek the Commissioner’s approval to decline to act under section 6.1.
Are the requests 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)). “Bad faith” must be assessed on case-by-case basis.
The institution submitted that the requests were made for a purpose contrary to the Act. More specifically it alleged that while the requester claims that their requests are made to seek transparency and accountability, the requester is using the Act to discredit and coerce or intimidate the institution, as well as force the institution to reverse a decision regarding a grievance previously made by the requester. It also alleged that the requester is using the Act and information to harass both the institution and individuals. In support of its claims, the institution made referred to communications and social media posts in which the requester has been critical of the institution.
The requester denied that the requests were made in bad faith. The requester maintained that the requests are simply intended to seek transparency regarding issues of interest to themselves and the general public, and are not intended to harass the institution. Regarding the institution’s claim that the requester is attempting to intimidate or reverse a grievance decision, the requester stated that, to their knowledge, the OPI involved in the requests would have no power to overturn such a decision. Finally, the requester submitted that being critical of an institution should not impede someone’s right of access.
The Commissioner concluded that the institution did not establish that the requests were made for any wrongful, dishonest or improper purpose so as to evidence bad faith.
The Commissioner was not satisfied that it could be reasonably inferred that the requester was using the Act for a purpose contrary to its intent, simply because the requester has been critical of the institution on social media and in their communications with the institution. The Commissioner opined that a requester is entitled to rely on the Act to seek information in support of their concerns regarding an institution and / or their pursuit of redress.
In the present instance, the fact that the requester has been vocal against the institution, while also relying on the Act, was not sufficient to establish that the requests were made in bad faith.
Finally, the institution’s allegation that the requester was only pretending to seek transparency and accountability in order to coerce or intimidate the institution, were speculative. The evidence did not support its claims that the requests were intended to target individuals, manipulate the institution or reverse the outcome of the grievance decision, as alleged.
Do the requests amount to an abuse of the right to make a request for access to records?
The term “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. 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.
In the present instance, the institution relied on a number of submissions made in support of its claim that the requests were made in bad faith, to support its further contention that the requests were also an abuse of the right to make a request.
The Commissioner concluded that the institution failed to establish that the requests were an abuse of the right of access. The institution did not provide any clear and compelling evidence that the requests constitute a misuse or improper use of the Act. It also did not allege, must less establish, that the requests diminish the right of access of other requesters and/or affect the institution’s ability to perform its other duties and responsibilities.
The Commissioner in closing reminded the institution that because of the nature and importance of the right of access, in order for an application under section 6.1 to succeed, an institution must provide strong arguments, supported by clear and compelling evidence. General allegations will not suffice.
In the case before her, the institution had provided a lot of documentation; however, that documentation did not support the institution’s applications under section 6.1.
The Commissioner denied the applications.