Decision pursuant to 6.1, 2024 OIC 62

Date of decision: June 2024

Summary

An institution submitted an application seeking the Information Commissioner’s approval to decline to act on an access request under subsection 6.1(1) of the Access to Information Act. In the institution’s opinion, the request was an abuse of the right to make a request.

The Commissioner finds that the institution established that the access request is an abuse of the right to make a request. Moreover, the circumstances warrant that she provides her approval to the institution to decline to act on the access request.

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 access request meets one or more of the requirements under 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 requests at issue

On March 21, 2024, an institution sought the Commissioner’s approval to decline to act on an access request it had received on January 12, 2024. The access request is the following:

The timeframe for my request is 1 Jan 2010 – 2 Feb 2024, unless stipulated otherwise below.

All records related to the Canada First Research Excellence Fund, which identify the institutions that were not eligible to receive funding under the program by the Auditor General.
All records pertaining to the interpretation of the Tri-Council Policy Statement (TCPS), restricted to:
1. Communications Logs or other tracking records
2. Communications sent or received
All records related to the Responsible Conduct of Research framework, restricted to:
1. Communications Logs or other tracking Records
2. Communications sent or received
All records related to the interpretation of any guideline, rule, policy, or recommendation.
All records related to the expenditure of funds prescribed for the period 1 January 2017 – 31 January 2024 or any communications with any Member of Parliament, media, Governor General, Lieutenant Governor of any province, Commissioner of any Territory or any federal bureaucrat regarding
1. The Canada Research Coordinating Committee
2. The Indigenous Leadership Circle
3. The Setting New Directions Strategy for Indigenous Research and Research Training
All records relating to the transfer of funds between [institutions]

According to the institution, the access request is an abuse of the right to make a request.

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 a 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’ rights 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 argued that the vagueness of the request, coupled with the request’s potential impact on the institution’s resources, which threatened its ability to fulfill its mandate, collectively, constitute an abuse of the right of access.

Volume of responsive records

To support its position, the institution provided an estimate of the number of responsive records. The estimate, which only represents a portion of the access request, is based on an initial search conducted by the three business units contacted by the access to information and privacy (ATIP) office and yielded over 137,000 records of an undetermined number of pages. This number was obtained by adding the estimates for the following items of the above request:

Items 2 and 3: 91,099 records
Item 5: 6,569 records
Item 6: 40,800 records

The institution explained that, for items number 2 and 3, one business unit’s preliminary assessment concluded that the communications would encompass all records for several of its core business activities over a period of 14 years. The institution further explained that the request for “All records pertaining to the interpretation of the Tri-Council Policy Statement” and “All records related to the Responsible Conduct of Research framework” are not limited to specific subjects. Rather, these items constitute principal functions the business unit fulfills.

As for item number 5, the institution mentioned that the President’s office provided an estimate of 6,569 records. This estimate does not take into consideration the mailbox of the former president or former acting presidents.

According to the institution, item number 6 of the request, which asks for “All records relating to the transfer of funds between [institutions]” yielded an initial estimate of 40,000 records. The institution explained that transfers of funds between some of these institutions routinely occur as part of jointly administered projects. This includes the funding of research, as well as various other initiatives. These activities are key to supporting the institution’s mandate, and this item of the request captures all records associated with this core business function. The preliminary estimate of 40,000 records does not include the records that may be retrieved across several other business units within the institution.

Finally, the institution explained that further searches and the inclusion of item number 4 will considerably increase this estimate of 137,000 records. Each business unit expressed concerns about the feasibility of responding to item number 4 of the request, which asks for “All records related to the interpretation of any guideline, rule, policy, or recommendation.” As it stands, this item lacks the specificity required to conduct a reasonable search.

The institution noted that, through a plain reading of item 4, and the applicant’s decision not to specify its scope, all employees of the institution could be implicated. These employees are routinely required to develop and act upon recommendations in the course of their day-to-day activities. Staff are also required to ensure that their activities are conducted in accordance with applicable guidelines, rules, and policies. Without additional information on what constitutes an “interpretation of any guideline, rule, policy, or recommendation,” the institution argued that there is no means for all staff to complete a reasonable search.

Efforts to assist the requester

The institution explained that multiple attempts were made to assist the requester in clarifying their request and reducing its scope, but that none of them were successful. Moreover, instead of reducing the scope of the request, the requester expanded the text of the request and asked to extend the period covered by the initial request (from 5 to 14 years), making the request even broader than initially submitted.

The evidence provided by the institution demonstrated that a first attempt to assist the requester was made on January 15, 2024. In this email, the institution asked the requester to confirm that the records sought are limited to those originating from or including one office of primary interest (OPI). The requester responded that the records sought were not limited to the OPI, and provided a new expanded text for the request, which covers a period of 14 years instead of 5 years.

A second attempt was made during a telephone conversation on February 7, 2024. In an email dated February 12, 2024, the institution provided the requester with a new text for the access request based on the telephone conversation. This new text provided more information on items 4, 5 and 6. The requester rejected the new text and asked the institution to use the previous version.

A last attempt was made by email on March 18, 2024. In its email, the institution mentioned the initial estimate of 137,000 records and that it would take years to process the request. The institution also sought the following clarification concerning items 2 to 6:

Items 2 and 3: The institution asks if the requester is interested in specific changes to the policy and framework.
Item 4: The institution mentions that this item is overly broad and lacks specificity. The institution noted that the requester refused to clarify it before, but asks for clarification a second time
Item 5: The institution mentions that this item captures administrative records and communications that are not substantially about the 3 groups mentioned, and asks for further clarification
Item 6: The institution offers to generate a report that includes how much was transferred, to whom, why and when

In their response, the requester mentioned the following: “Unfortunately, as I stated previously to another representative, I cannot be more specific on any of the points you’ve raised. I understand and accept that the work ahead will be quite expansive and time-consuming.” The requester also suggested that the institution provide interim releases of the information. It appears that the institution did not respond to that suggestion.

Burden on the institution and others’ right of access

The institution argued that multiple items in the request will require staff to be dedicated to records retrieval over a lengthy period of time. Based on the preliminary estimate, the institution estimated that the retrieval of records alone should take over 3,000 hours across three business units.

The institution further mentioned that the business units are composed of small teams that range from three to seven full-time equivalent employees. Because of their small size, there is, according to the institution, a significant likelihood that the business units’ ability to deliver on mandated priorities will be impacted.

Moreover, Item 4 of the request has the potential to impact the full staffing complement of the institution. The institution estimated that retrieving the records would take 5,257.5 hours and that these hours are unlikely to be distributed evenly across the institution. An indeterminate number of staff may be required to dedicate a considerable number of days depending on their roles and responsibilities.

According to the institution, the ability of its ATIP office to fulfill its legislative requirements will also be significantly impacted. The ATIP office is composed of three full-time employees, who are responsible for administering all aspects of the Access to Information and Privacy Acts (Junior ATIP Officer, Senior ATIP Analyst, and ATIP Coordinator), including one full-time employee who is dedicated to responding to access requests. Over the past two annual reporting periods, the ATIP office has processed 17,505 pages under the Access to Information Act and 5,034 pages under the Privacy Act. For the ATIP office to process this access request, it would be reasonable to expect that it would take several years to complete. This estimate does not account for any other access requests the institution receives (it receives 20-40 requests annually).

Finally, the institution argued that undertaking this request could prevent it from being able to respond to other requesters within legislated timeframes. This request would overburden the agency’s resources, create a long-term systemic backlog of requests, and would negatively impact the legitimate right of access by others.

Discussion

In their communication with the Office of the Information Commissioner, the requester suggested that the number of responsive records is not likely as great as the institution claimed, because the records are likely held within academic institutions. According to the requester, “[o]ne of the challenges… that might be contributing to the complexity of this, is the fact that Academic Institutions across Canada are responsible for administering Government funding within their institutions. Most likely the information being requested is not held in a central location, but instead within academic institutions in Canada.”

The Commissioner notes that only two items of the access request concern funding. Item 5 is about “the expenditure of funds,” while item 6 is about the “transfer of funds.” So even if the requester was correct in saying that “Academic Institutions across Canada are responsible for administering Government funding within their institutions” and, for that reason, that “the information being requested is not held in a central location, but instead within academic institutions,” that would not affect the number of responsive records for items 1 to 4.

As explained by the institution, the most problematic items of the access request are items 2, 3 and 4. For example, the institution’s preliminary estimate for items 2 and 3 yielded 91,099 records. The Commissioner notes that the requester’s representations did not concern these three items, as they are not about funding.

As for item 6, while it does concern funding, the Commissioner notes that the requester asks for records related to the transfer of funds between federal institutions. So, it is unclear to her why the records for this part of the access request would be located within academic institutions, rather than within federal institutions.

As for item 5, the requester mentioned two types of records in that part of the request: they ask for “records related to the expenditure of funds… or any communications with any Member of Parliament, media, Governor General, Lieutenant Governor of any province, Commissioner of any Territory or any federal bureaucrat regarding” three organisations. So, it is not clear how many records out of the estimated 6,569 records concern specifically the administration of funds. In any case, the Commissioner notes that the institution’s estimate of the number of records for that part is relatively low compared to the rest of the access request. So even if the requester was right, it would not have a significant effect on the total number of responsive records.

When considering the breadth of the request text and evidence before her, the Commissioner finds that the estimate of 137,000 records is plausible, and that the access request will likely generate a very significant number of records. As noted by the institution, items 2 and 3 concern core activities of the institution, and cover a period of 14 years. Moreover, these two items concern all communications, and thus, are not limited to a specific kind of records. For that reason, the Commissioner finds it plausible that these items of the request will generate a very large volume of records. As for item 4, the Commissioner also agrees with the institution that it is vague and overly broad, as it concerns “the interpretation of any guideline, rule, policy, or recommendation” for a period of 14 years. Item 4 is also not limited to a specific kind of record; it asks for “all records.” Thus, the Commissioner finds that the number of responsive records for this item alone is likely significant.

Whether an access request would overburden an institution rests on an objective assessment of the facts. It varies depending on the scope and nature of the access request and the effort required to act on it. But when a requester overburdens an institution with their access request, it interferes with the ability of others to legitimately exercise their rights of access.

Based on the institution’s representations, the Commissioner is satisfied that the access request would overburden the three business units. She can see how the broad scope of the access request would result in a very time-consuming exercise for these small teams. The size of these units is indeed an important factor to take into consideration in the assessment of the burden on the institution.

The institution also convincingly explained how the time and effort needed to process the responsive records would overburden the ATIP office, which is also composed of a small team. Moreover, the Commissioner can also see how this would affect the right of access of other requesters. While processing this file, the business units and ATIP office would not be able to act on other individuals’ access requests.

The Commissioner is 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. She 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.

The requester claimed that they “have submitted this request for academic purposes and there is no malicious intent.” The Commissioner has no reason to doubt this statement. That being said, an abuse of the right of access does not require a malicious intent; it can occur whether or not the requester intends to abuse their right of access.

For all the reasons mentioned above, the Commissioner concludes that the access request is an abuse of the right to make a request to access records because processing it would overburden the institution and hinder other requesters’ right of access.

Do the circumstances warrant that the Commissioner provides her approval to decline to act on the access requests?

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

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

Obligation to assist the requester

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

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

As the Commissioner has mentioned above, the institution made three main attempts to assist the requester. In the first attempt, it asked the requester to confirm that the records sought are limited to those originating from or including one OPI. The requester responded that the records sought were not limited to that OPI, and provided a new expanded text for the request.

A second attempt was made during a telephone conversation and was confirmed by email. In their response, the requester rejected the new text that the institution had provided and asked the institution to use the previous version.

In the last attempt, the institution mentioned the initial estimate of 137,000 records and that it would take years to process the request. The institution also asked further clarification concerning items 2 to 6. In their response, the requester mentioned the following: “I cannot be more specific on any of the points you’ve raised. I understand and accept that the work ahead will be quite expansive and time-consuming.” The requester also suggested to the institution to do interim releases of the information.

The evidence before the Commissioner suggests that the institution did not respond to the requester’s suggestion. That said, the Commissioner is of the view that interim releases would not have an effect on the number of responsive records, and would therefore not have an important effect on the interference with the institution’s operations and others’ right of access. Thus, she is satisfied that the solution proposed by the requester was dismissed.

The Commissioner finds that in making three different attempts, and given the requester’s responses, the institution made every reasonable effort to assist the requester. Thus, the Commissioner concludes that the institution established that it had met its duty to assist the requester.

The Commissioner would like to remind the requester that, for an institution to be able to fulfill its duty to assist, both parties must collaborate. Requesters must remain open to cooperating with an institution that is making efforts to assist them with their access request.

Public interest

The Commissioner recognizes that there may be a public interest in the subject matter of the records sought for academic purposes and does not dispute the importance of the information. However, the public interest in obtaining information does not always act as a catalyst that can cancel the abusive effects of an access request and force the institution to respond.

The intention of section 6.1 is to preserve the proper intent and functioning of the Act and to protect against the abuse of the right to make an access request so that others can also exercise their quasi-constitutional right to access information. The right to access information is not absolute, so requesters should avoid making broad access requests when more targeted requests will suffice. In addition, there must be a reasonable limit on how much time and effort institutions dedicate to responding to one request.

Timeliness of the application

The institution received the access request on January 12, 2024, and applied for the Commissioner’s approval to decline to act on the access request on March 20, 2024, that is, about 2 months later.

The evidence before the Commissioner suggests that the institution actively processed the access request from the moment it had received it, and that part of the delay is explained by the time the requester took to respond to the institution’s emails. For example, the Commissioner notes that the requester took 18 days to respond to the institution’s first email after the institution had followed up twice with the requester.

The Commissioner also notes that the institution applied for her approval 2 days after receiving the requester’s last email. This shows that the institution was prepared and actively processing the request.

The Commissioner conclude s that the application was presented in a timely manner.

Decision

The institution has established that the access request met one or more of the requirements of subsection 6.1(1):

The access request was overly broad and the efforts of the institution to clarify the request and narrow its scope were unsuccessful. Instead of reducing the scope of the request, the requester expanded it.
Processing the access request with the anticipated volume of records would overburden the three business units and ATIP office.
Due to having to process this one large request, the ATIP office and business units would be considerably hindered in their ability to respond to other access requests, thus jeopardizing other requesters’ right of access.

The circumstances warrant an exercise of the Commissioner’s discretionary power to authorize it to decline to act on the access request.

The application is granted.