Decision pursuant to 6.1, 2024 OIC 60

Date of decision: April 2024

Summary

An institution made an application to the Information Commissioner for approval to decline to act on an access request under subsection 6.1(1) of the Access to Information Act. The institution submitted that the request constitutes 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. In addition, the Commissioner found that the circumstances warranted she provides her approval to the institution to decline to act on the access request at issue.

The application is granted.

Application

Under subsection 6.1(1) of the Access to Information Act, 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 head of the institution’s opinion, the request is one or more of the following:

• vexatious;
• made in bad faith;
• an abuse of the right to make a request for access to records.

Institutions may not decline to act on access requests for the sole reason that the requested information was already proactively published under Part 2 of the Act (subsection 6.1(1.1)).

The institution bears the burden of establishing that the request meets one or more of the requirements of subsection 6.1(1).

If the institution establishes that one or more of the requirements of subsection 6.1(1) apply, the Commissioner must exercise her discretionary power to either grant or refuse the application.

In exercising her discretion, the Commissioner will consider all relevant factors and circumstances, including:

• The quasi-constitutional nature of the right of access;
• The public interest in the records sought;
• Whether the institution met its obligations under subsection 4(2.1) to make every reasonable effort to assist a requester in connection with their request.

Access Request at issue

On January 18, 2024, the institution sought the Commissioner’s approval to decline to act on an access request received on September 7, 2021. The application reads as follows:

[Translation]

Please provide all records created since January 1, 1991, regarding:

• any industry representation (developers, manufacturers, distributors, industrialists, and/or vendors and/or their representatives, lobbyists, lawyers, communications firms, etc.) concerning neonicotinoid pesticides; and
• any record resulting directly or indirectly from these representations (without limiting the generality of the foregoing, records such as memoranda, studies, emails, correspondence, directives, meeting notes, public notices, etc.).

In the course of processing this request, I ask that you consider subsection 20(6) of the Act and H. J. Heinz Company of Canada Ltd. v. Canada (Attorney General), 2006 FCA 378 (CanLII).

Is the institution precluded from applying for approval?

In its representations, the requester stated that the institution is precluded from invoking section 6.1. The institution should be deprived of its right to request the Commissioner’s approval because the 30-day period provided for in section 7 has been exceeded and the institution has neither transferred the access request nor extended the time limit for responding to it.

While recognizing that section 6.1 envisions that the time limits within which an institution is to respond to a request under the Act is suspended upon an institution seeking the Commissioner’s approval to decline to act on an access request under subsection 6.1(1), it does not impose a mandatory time limit for seeking approval.

Although an application for approval should generally be submitted within the first 30 days following receipt of the access request by the institution or within the extended time limit, the Commissioner recognizes that specific circumstances impact the timing of an application for approval. The expiry of the 30-day period or the extended time limit does not, therefore, prevent her from considering an application for approval; on the contrary, it is a factor that she may take into account in exercising her discretion to grant or refuse its approval under subsection 6.1(1).

Is the request an abuse of the right to make a request to access records?

The Act provides requesters with a significant statutory right to access information under government institutions’ control. However, all rights come with responsibilities. The right of access must not be abused. 

An abuse of the right to make an access request occurs when a requester uses their right of access in an abusive or inappropriate manner.

This may be the case when an access request is directed towards a purpose other than obtaining documents or information. It may also be the case when a request is contrary to the public interest in that it overburdens an institution, hinders other requesters’ right of access and/or unnecessarily increases the costs and time spent by institutions to meet their statutory obligations.

The factors listed above are not exhaustive; other relevant factors may be considered depending on the circumstances of each case. Whether an access request amounts to an abuse of the right of access must therefore be assessed case by case.

The institution submitted that the access request in question constitutes an abuse of the right of access because responding to it would interfere with the operations of the office of primary interest (OPI), the operations of the Access to Information and Privacy (ATIP) office, as well as the right of access of other requesters.

Record volume and complexity

In support of its allegations, the institution explained that the access request is expected to generate roughly five million pages. To arrive at this number, it added the following:

• 4 million pages from applications submitted to the institution (Neonicotinoids include at least one of the following six active ingredients: clothianidin, dinotefuran, imidacloprid, acetamiprid, thiacloprid, thiamethoxam. When searching for these ingredients, the institution found 15,407 pesticide-related application numbers linked to at least one of these ingredients, for a total of 102,106 records or 227,375 megabytes (MB). The institution considers that 1 MB should contain 15 pages, for a total of 3.4 million pages).
• 357,000 pages of related records (28,600 MB of related records were found during an initial search, for a total of 357,000 pages).
• 765,600 pages of emails (The estimate is 191,400 emails with 4 pages each. These emails are from only one of the branches affected by the access request).
• 765,000 pages of paper records (The institution estimates that 300 boxes of paper files will hold relevant records, for a total of 765,000 pages. This estimate is based on the following calculation: 200 pages per inch and 12.75 inches per box, which is 765,000 pages for the 300 boxes. However, the institution specified that these pages will probably not all be relevant, but most of them will be).

In addition, the institution noted that the records are complex in nature, since processing them will require numerous consultations with third parties (more than 106 third parties), government agencies and international organizations.

Efforts to narrow the access request

The institution explained that, before submitting its application for approval, it had tried to help the requester formulate a more precise and less cumbersome request, to no avail.

A first attempt was made, during which the institution suggested that, to speed up the access request process, it could focus on:

• all records (email, letters, meeting minutes) related to the third-party industry application that prompted the glyphosate consultations, on the institution’s proposed maximum residue limits;
• all information related to the proposal to increase glyphosate limits on food products and covers the period from January 1, 2019, to the date of submission of the access request.

The requester rejected the suggestion the same day. The requester indicated that it was not only interested in recent changes, nor only in this third party, and reiterated that the request was for records generated since 1991.

Through an OIC investigator, the institution provided the requester with a list of information in the public domain and a list of previously processed access requests on the same topic. The institution also gave the requester the opportunity to consult records in the “reading room” and provided a link to the website. This link explained that the “reading room” is available in Ottawa or virtually and allows members of the public to [translation] “view confidential test data (i.e. test data to which access may be denied under the Access to Information Act) underlying pesticide registration decisions or draft decisions in the case of post-market reviews, namely re-evaluations and special reviews.”

The requester responded to the institution’s suggestions through the OIC investigator. The requester stated that they could not consult the “reading room” because of geographical distance, but did not acknowledge the possibility of consulting the records virtually. The requester nevertheless agreed to exclude products not registered in Canada and labels from the access request. They indicated that they could further narrow their request if they were given a description of administrative records other than those containing submission data for pesticide-related applications and internal scientific review specification data, or a Vaughn index of these records. (The Vaughn Index is a document prepared by agencies in the United States as part of the Freedom of Information Act litigation to justify the withholding of information under a statutory exemption.) The institution did not provide the requested index because, in its opinion, it would still involve a considerable amount of work.

According to the institution, the changes made by the requester do not have a significant impact on the number of pages generated by the access request. The removal of labels represents around 40,000 pages: each of the 10,000 labels comprises approximately 4 pages. The removal of unlicensed products also has no significant impact on the volume of records, as much of the material may be associated with products that have subsequently been authorized or re-evaluated by one of the OPIs.

The institution, again through the OIC investigator, proposed that Cabinet confidences be excluded and asked whether the requester intended to exclude third‑party information when citing the decisions. The institution explained that excluding third‑party information would considerably reduce the volume of records.

The requester indicated that they only want Cabinet confidences that are subject to an exception under subsection 69(3). In addition, the requester did not waive the right to obtain third‑party information.

Lastly, the institution provided a list of the 213 neonicotinoids registered in Canada through the investigator and asked the requester to establish a priority list for processing these pesticides. The requester said that they were interested in all neonicotinoids equally and did not wish to prioritize.

Interference with OPI operations

The institution noted that one OPI would be particularly impacted by this access request. This OPI is responsible for regulating pesticides and therefore for the health of Canadians and the protection of the environment. It authorizes the sale and use of pesticides based on the Pest Control Products Act, and conducts scientific reviews using multidisciplinary teams with expertise in chemistry, toxicology, occupational exposure, environment and value.

According to the institution, neonicotinoids are the most popular class of insecticides and therefore feature prominently in the work of this OPI. The access request, which covers all records associated with neonicotinoids, would therefore impact the work of the majority of this OPI’s employees (around 550). The access request would affect all 6 OPI branches, particularly the 4 scientific branches (approximately 370 employees).

The institution estimated that each OPI employee will have to perform a keyword search in their email account and that 16,000 keywords would have to be used. The institution calculated this number of keywords by counting the number of applications associated with neonicotinoids (15,407). This will require OPI employees to enter all application numbers in order to extract the relevant information. In addition, they would have to use codes and text associated with active ingredients, as well as product names and registration numbers.

In addition to this email search, the institution specified that the 15,407 applications associated with neonicotinoids would have to be downloaded from the database, creating a strain on the IT system and preventing, obstructing or restricting employee access.

Lastly, the institution specified that the OPI’s scientific advisors would have to review the records over a significant period of time. This review would include a line-by-line analysis of the information to determine context, triage sensitive information and flag risks associated with disclosure.

The institution argued that retrieving and reviewing the records would require OPI to reassign a significant portion of its staff, including a significant portion of its experienced scientific advisors, preventing it from fulfilling its regulatory mandate to process pesticide applications and thereby protecting the health of Canadians and the environment. In addition, the introduction of new products to the market and the withdrawal of others could be delayed, which would also have a negative impact on the agricultural industry.

Furthermore, the institution stated that responding to this access request would also have a negative impact on the operations of OPI’s quality control team. This team of eight employees is responsible for coordinating the response to access to information requests, assembling records, compiling disclosure recommendations, performing quality control and obtaining authorizations. The access request in question would monopolize the work of these eight employees, which would prevent the OPI from responding to other access requests and would interfere with other people’s right of access.

Finally, according to the institution, reassigning staff would have a negative effect on the OPI’s budget by delaying its ability to process the submissions it receives. The OPI is subject to the requirements of the Service Fees Act. If the review of submissions received by this OPI does not meet the established service standards for which fees were paid, the OPI must return a portion of the fees collected, which may lead to a budget shortfall. Specifically, the OPI is required to reimburse the applicant an amount ranging from 10% to 25% of the total fees paid. For example, in 2022‑2023, the OPI collected a total of $1.7 million for pre‑market applications. If a significant portion of these fees were to be returned, the OPI would be left with a budget shortfall, which could also have a negative impact on its ability to hire, train and retain staff.

Interference with the ATIP Office

The institution noted that the ATIP Office will be negatively impacted by the access request in question, which will also have a negative impact on the access rights of other requesters.

This office has 104.84 full-time equivalent employees. During the 2022‑2023 fiscal year, the office closed 2,432 requests (2,132 access to information requests and 300 privacy requests) and reviewed 519,014 pages (500,362 pages of access to information requests and 18,652 pages of privacy requests).

The institution is also continuing to build its capacity by seeking to hire more employees. In 2023, it hired 10 post-secondary recruits. It also held selection processes to fill positions for deputy directors and team leaders, but these processes resulted in very few candidates being recruited. The shortage of qualified resources in the ATIP field is well known and widespread across government, making it difficult to maintain sufficient resources to meet demand.

The institution’s ATIP office includes two teams dedicated to handling requests for information related to drugs and products, one of which is the ATIP Drug Team. This team would be responsible for the request in question.

The ATIP Drug Team is currently processing 551 ATIP requests and has extracted over 1.17 million pages. The team currently has 13 full-time employees. Given the 1.17 million pages to be reviewed, each employee would have a workload of approximately 90,000 pages. Based on a ratio of 1,000 pages per month per employee, the institution calculated that the current workload represents 7.5 years of work per employee. If this team were to process the access request in question, which includes 5 million pages, it would take the 13 employees approximately 32 additional years.

The institution believes that it would be unreasonable to dedicate an entire team to processing a single access request and to spend 32 years processing that request. This would be an abuse of the access to information system and would have a negative impact on the rights of other requesters. It would also be unreasonable to assign one or two full‑time employees to this single request, given that these employees would not be able to respond to the request in their lifetime (it would take two full‑time employees approximately 208 years to respond to the request).

Discussion

In response to the application for approval, the requester stated that the institution’s estimate of five million pages was irrational. The requester stated that they were informed on June 6, 2023, that the request would generate only 75,000 pages, and that no evidence of record volume had been provided by the institution in support of the application. In addition, the requester maintained that the institution never expressed any complaints about this page count before submitting the application.

The Commissioner noted that the record entitled “Évaluation approfondie de la demande A-2021-000915” [In-depth assessment of request A-2021-000915] (hereinafter “the assessment”) was sent to the requester on June 6, 2023, by an OIC investigator. This document was prepared by the institution and includes an estimate of the number of records covered by the access request. According to the institution’s estimate, the request should generate a total of 153,373 records. The Commissioner noted that this estimate was based on the number of records, not the number of pages. The institution also stated that the estimate of some of these records was based on a sample dating back five years. It therefore estimates that there are even more records. 

In view of the above, the Commissioner finds it difficult to understand how the requester came to the conclusion that the request would generate only 75,000 pages. The Commissioner also noted that the number of records presented in the assessment was consistent with the estimate of five million pages presented by the institution in its application.

Furthermore, the institution stated in the assessment that retrieving the records alone would require more than 6,000 hours of work and that more than 148 employees would have to be involved. The institution also noted that processing the access request would generate [translation] “an immense workload” and that the OPI [translation] “would suffer a considerable impact on its operations, if the request remains as is.” Contrary to what the requester argued, the Commissioner considers that the requester was informed of the fact that the volume of pages would generate a significant burden for the institution, well before the application for approval was filed.

As stated above, abuse of the right to request access occurs when a requester uses their right of access in an abusive or inappropriate manner. This may be the case when a request overburdens an institution, unreasonably hinders an institution’s operations or interferes with other requesters’ right of access.

In this case, the requester wants all records from the last 30 years regarding all neonicotinoids (according to the institution, 216 neonicotinoids are on file). Although the subject identified (neonicotinoids) is specific, the access request covers, in addition to any industry representation, several types of records that stem directly or indirectly from these representations (memoranda, studies, email, correspondence, directives, meeting notes, public notices, etc.) over a period spanning 30 years.

The Commissioner finds that the access request, as framed, is excessively broad. Institutions are not required to provide a precise calculation, but estimates of the volume of information that may be generated by an access request must be reasonable and realistic. The institution has provided detailed explanations to support the calculation of the estimated number of pages that the access request would generate. This calculation is not perfect and includes a considerable margin of error. Nevertheless, the estimate and explanations provided allow the Commissioner to find that the access request would still generate millions of pages.

The institution’s attempts to narrow the request for access to information have been unsuccessful. Furthermore, the Commissioner noted that the requester refused the suggestions made by the institution to significantly reduce the number of pages generated by the request, including the suggestion to consult certain records in a virtual reading room. The use of the virtual reading room could have been a good way to reduce the resources required to provide access to the requested information.

The requester indicated that the institution had made no effort to provide a description of the records covered by the access request. The institution estimated that the records for which a list of records with a summary description were requested alone include 17,570 records taken from the Electronic Pesticide Regulatory System (e-PRS) and the physical storage warehouse, and the bulk of the 84,622 records from other information repositories. It should be noted that the estimated number of records from other repositories is based on a five-year sample. The Commissioner understands that the total number of records for which a description is required may be high, given that there will be records from other repositories for another 25 years. She believes that the work required to provide such a list is unreasonable.

When an access request can generate millions of pages, the institution must work with the requester to help them narrow down the request so that it is more specific and less of a burden. Narrowing the request may involve helping the requester to better define the purpose of the request, the specific types of records of interest, and the time period for which the records are requested. In this case, it is in the interest of the requester to collaborate with the institution to avoid an excessively broad request.

In this case, the requester could have initially accepted the institution’s initial proposal described above to obtain access to all records (emails, letters, meeting minutes) related to the application from a third party in the industry and a specific pesticide. This would perhaps have enabled the requester to assess the relevance of these records and determine whether they should request access to records relating to other third parties.

In some cases, responding to an access request is so burdensome for an institution both in terms of resources and time that it interferes unreasonably with its operations. The question of what constitutes unreasonable interference with an institution’s operations is based on an objective assessment of the facts. It depends on the nature of the access request, the size and type of operations, the work involved in responding to the access request and the impact on operations.

The requester did not contest the institution’s arguments that the access request would interfere with the institution’s operations and hinder other requesters’ right of access. 

The institution’s representations satisfy the Commissioner that the access request would unreasonably interfere with the operations of the OPI. The Commissioner can understand how the broad scope of the access request requires time-consuming work for employees and how it could unreasonably disrupt their normal operations by forcing them to set aside their operational obligations and their obligations to other requesters seeking information on pesticides and other regulated products.

The institution also compellingly explained how the time and effort required to search for, identify, retrieve and process the relevant records would unreasonably interfere with the operations of the ATIP office. According to the institution, this interference would also affect the right of access of other requesters. While processing this file, the ATIP Office would be unable to respond to other access requests. The Commissioner believes that devoting so much time and effort to a single access request would unreasonably interfere with the operations of this office.

The Commissioner is also mindful that the time and resources available to respond to access requests are not limitless, and that the requester is not the only one waiting for a response to their access request. The Commissioner finds that the time and effort needed to search, identify, retrieve and process the responsive records would have a negative impact on the right of access of other individuals.

For all the reasons mentioned above, the Commissioner finds that the access request was an abuse of the right to make a request to access records because processing it would unreasonably interfere with the institution’s operations and hinder other requesters’ right of access.

Do the circumstances warrant that the Commissioner grant her approval to the institution?

The institution has established that one of the requirements of subsection 6.1(1) applies, so the Commissioner must now exercise her discretionary power to either grant or refuse the application.

In exercising her discretion, the Commissioner considered all relevant factors and circumstances, including the following.

Duty to assist

Subsection 4(2.1) sets out a general duty to assist requesters. The scope of the duty to assist is broad, requiring that an institution make “every reasonable effort” to assist a requester with their request. This duty extends as far as it would be reasonable for the institution to provide assistance. The duty to assist may include helping the requester to clarify their access request, narrow its scope in order to facilitate a more timely response to records sought or provide information needed to enable the institution to identify requested record(s).

What constitutes “every reasonable effort” to assist a requester with their request in any given case depends on the relevant facts and circumstances. In turn, whether an institution has met its obligations under subsection 4(2.1) depends on the facts and must be assessed on a case-by-case basis.

The institution assisted the requester at two main points: in September 2021 and during the period from June 2023 to October 2023. The institution explained that it had contacted the requester directly in 2021, but that [translation] “communications had reached an impasse.” The institution stated that it did not expect the requester to cooperate, as was the case with their other access requests.

In November 2021, the requester submitted a delay complaint with the OIC. The institution then decided to wait for the complaint to be assigned to an investigator before continuing discussions with the requester, which resumed in June 2023.

Contrary to the institution’s assertions, the Commissioner is not convinced that discussions reached an impasse in September 2021. While the institution promptly contacted the requester to provide assistance, the Commissioner noted that only one email was sent to the requester in 2021, and that the requester responded that they would be happy to further clarify their request should the institution wish to do so. The institution should have continued to provide assistance at that time, without waiting for the complaint to be assigned to an OIC investigator.

Furthermore, the Commissioner also takes issue with the fact that the institution relied on the assistance of the OIC to continue assisting the requester. The duty to assist rests with the institution; it should not rely on the OIC to assist requesters.

That said, the Commissioner also noted that the institution had made numerous efforts to help the requester narrow the request. As noted above, the institution proposed the following alternatives:

• that the access request relate to glyphosate and cover the period from January 1, 2019, to the date of submission of the access request;
• a list of information in the public domain and a list of previously processed access requests on the same topic;
• that the requester consults records in the reading room; and
• that the access request excludes cabinet confidences and third-party information.

The requester refused all suggestions made by the institution that would significantly reduce the number of pages generated by the access request, including the suggestion to consult certain records in a virtual reading room.

The requester indicated that the institution had not fulfilled its obligation to assist them with the request by failing to provide a description of the records covered by the access request. The duty to assist extends to everything that is reasonable to do, and what is reasonable is generally determined by the specific characteristics of the access request. As noted above, the work required to provide the description seems unreasonable. The Commissioner found that, in the circumstances, the failure to provide a description did not mean that the institution had failed in its duty to assist.

The Commissioner believes that by offering several options to narrow the access request, the institution made every effort reasonable under the circumstances to assist the requester. She found that the institution had established that it had fulfilled its duty to assist the requester before seeking her approval not to act on the access request.

Time between receiving the access request and submitting the application for approval

The institution received the access request on September 7, 2021, but did not submit its application for approval until January 18, 2024, which was approximately two years and four months after receiving the access request. The institution provided the following explanations for this delay.

First, the institution explained that it attempted to collaborate with the access requester as soon as it received the request, but that communications reached an impasse very early on. Two months after submitting the access request, and having received no response, the requester filed a delay complaint with the OIC. The institution then decided to wait until the complaint was assigned to an investigator before requesting assistance, believing that the investigator’s assistance would limit the scope of the access request. The complaint was not assigned until December 2022, so more than a year passed before collaboration resumed.

The institution also stated that it had not extended the time limit for responding to the access request because it could not provide a reasonable timeframe. The time required to process the request is estimated at 400 years (5 million pages processed at a rate of 1,000 pages per month per analyst).

The Commissioner is of the opinion that the delay of approximately two years and four months before the institution applied for authorization is not warranted. The institution should not have waited for the OIC investigator to intervene. That said, the facts do not show that the institution deliberately neglected to assist the requester during this period.

The reasons and circumstances that lead the Commissioner to find, in this case, that there was an abuse of the right to request access mean that she cannot reject the application for approval because it was not submitted in a timely manner. The abuse appears too great.

Institutions should not, however, assume that this decision opens the door to the possibility of submitting applications for approval at any time. Applications must be submitted in a timely manner.

Public Interest

The requester argued that the side effects of neonicotinoids are a matter of public interest.

The Commissioner agreed that some of the records requested were in the public interest and she did not dispute the importance of the information on pesticides. However, the public interest to obtain information does not always act as a catalyst to nullify the abusive effects of an access request and compel the institution to respond.

The purpose of section 6.1 is to preserve the proper intent and operation of the Act and to protect against abuse of the right to make an access request so that others may also exercise their quasi-constitutional right of access to information. The right to access information is not absolute, so requesters should avoid making broad access requests, as is the case here. In addition, there must be a reasonable limit on how much time and effort institutions dedicate to responding to one request, which is not the case for the access request in question.

Decision

The institution established that the access request was an abuse of the right of access and met the requirements of subsection 6.1(1):

• The initial access request is too broad. Despite the efforts of both the institution and the requester to restrict the scope of the request, it remains very broad. The requester still requires all records produced in the last 30 years on all neonicotinoids.
• The requester did not accept the institution’s suggestions that would significantly reduce the number of pages the request would generate. The anticipated volume of records could have been reduced if the requester had agreed to focus on a particular pesticide or third party in the industry, or by using the reading room.
• The processing of the access request, with the estimated volume of records, would overburden the OPI and therefore unreasonably interfere with its operations.
• The interference with operations would mainly result from the fact that OPI employees would be required to set aside their usual duties, including those related to the review of pesticide authorization requests, for an extended period of time to devote all their efforts to responding to the access request.
• If the ATIP Office were to respond to this access request, it would be unable to respond to other access requests, thereby compromising the access rights of other requesters.

The circumstances warrant that the Commissioner provides her approval to the institution to decline to act on the access request at issue.

The application is granted.