Decision pursuant to 6.1, 2024 OIC 63

Date of decision: June 2024

Summary

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

The Commissioner finds that the institution established that two of the access requests are an abuse of the right to make a request, namely, A-2023-00305 and A-2023-00314. Moreover, the circumstances warrant that she provides her approval to the institution to decline to act on these two access requests.

That said, the institution neither established that the remaining access requests (A-2023-00303, A-2023-00308 and A-2023-00310) are vexatious, nor that they are an abuse of the right to make a request.

The application is partially 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

According to the institution, the access requests are vexatious and an abuse of the right to make a request.

Are the requests 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.

Repetition

The institution mentioned that the requester submitted 37 requests on the same day and that 22 of these requests concerned Volkswagen and Bill C-34, and sought overlapping and, in some cases, the same records. The institution contended that the fact that the requester submitted multiple repetitive requests for information on Volkswagen, which could easily be combined, is an abuse of the right of access. Processing the same records in multiple files would be a misuse of government resources.

Burden on the institution and other’s right of access

The institution also claimed that the requests would overburden it, threatening by the same token others’ right of access, and constitute, for that reason, an abuse of the right to make a request. To support its position, the institution provided the following estimate of the number of responsive records that one of the offices of primary interest (OPIs) would have for each request:

• A-2023-00303: 2,178 emails of which 845 have attachments
• A-2023-00305: 1,784 emails of which 788 have attachments
• A-2023-00308: 2,077 emails of which 828 have attachments
• A-2023-00310: 709 emails of which 298 have attachments
• A-2023-00314: 753 emails of which 345 have attachments

For two of these requests, the institution determined that each document would have an average of 4 pages (including both emails and attachments), with the exception of one document captured by both requests that is 649 pages alone. Therefore, the institution reached the following total number of pages for the two access requests:

• A-2023-00310: 4,677 pages
• A-2023-00314: 5,041 pages

In addition to these records, the institution estimated that the OPI would have 25 documents in GCdocs, and that three other OPIs would have responsive records, as follows:

• Second OPI: 370 emails (not factoring in attachments)
• Third OPI: 43 pages
• Fourth OPI: 2 emails and 3 notes

The institution further explained that the responsive records are highly complex and would necessitate a large number of consultations with multiple government organizations, third parties, and other sectors within its department. Moreover, the institution anticipated that there would be many consultations with its Legal Services for possible cabinet confidences.

The institution explained that it reached out to the requester a few times to attempt to stagger the requests, limit their scope and eliminate repetition, without success.

The institution’s access to information and privacy (ATIP) office first reached out to the requester on the same day the requests were made to explain that processing this number of large requests simultaneously would limit its ability to process new and active requests. The ATIP office asked the requester if they would consent to stagger their requests and list them in order of priority in an effort to balance the workload. The requester rejected the suggestion.

The institution also noted that, as worded, the requests would generate a large volume of records, some not necessarily about the subject of interest. These records may refer to Volkswagen in passing without specifically being about that subject. The institution explained this to the requester in another email, and proposed a way forward. It suggested narrowing the scope of the request to records “pertaining to or regarding” and combining the requests to eliminate duplication of records between requests and to ease some of the administrative burden that searching for the records will create. The requester responded “Please respect the wording of each individual request. The wording and scope [of] each request are intentional.”

The institution argued that the access requests, as phrased, would overburden the OPIs. According to the institution, every sector in the department could be tasked given the way the access requests are worded. The tasking would require OPIs conduct a search for records using the keywords “VW,” “Volkswagen” and “Vis motion.” Then the records would have to be compiled, reviewed and recommendations made. Once that exercise is concluded the records would have to be added to the requests they fit into.

The institution also explained that, while the retrieval can be conducted by an employee at the entry level, the review of the records and recommendations will have to occur at a more senior level with employees possessing the appropriate subject matter expertise. The records must then be approved by the Director General who will have to review and approve 5 files, rather than just the one, had they been combined.

According to the institution, the number of hours and resources that will need to be allocated to these requests is “unreasonable.” In particular, the number of hours required to complete the retrieval of these records would be debilitating to one OPI. These repetitive and duplicative requests submitted at the same time will tie up the resources of the department responsible for moving these files forward, and will limit the sectors’ ability to continue their work and jeopardize deadlines and deliverables.

The institution explained that it needs to allocate one specific resource to handle the retrieval of records. However, due to this reallocation and the complexity of the task, it is anticipated that the retrieval process may experience delays and impose further constraints on the sector, exacerbating the challenges they already face in meeting their operational objectives. Hence, the sector anticipates the need to allocate additional resources, potentially through hiring, to cope with the workload generated by these requests. Unfortunately, budgetary constraints pose a challenge in meeting these additional resource needs, further complicating the situation.

The effect of processing these requests is, according to the institution, already diminishing the right of access of other requesters. The institution is starting to see the trickle-down effect processing these files is having on the timelines for processing new requests. Sectors are informing the ATIP office that they cannot retrieve the records under their normal timeframes and asking for increasingly longer extensions to retrieve records for new requests because their resources are still in the process of retrieving records for these requests.

To provide an estimate of the time required to respond to these requests, the institution mentioned the time extension it took for each request, which is ranging from 2.5 to nearly 13 years. The extensions were calculated taking in consideration the time the OPIs will need for their retrieval efforts, in addition to the time the ATIP office would require for internal consultations with other sectors, consultations with other government departments as well as consultations with Legal Services for possible cabinet confidences. The institution also factored in that the requests will have to be staggered in order to allow its ATIP analysts time to process them while maintaining their current workload and also having time to review new incoming requests.

The institution also argued that the access requests would impact the ATIP office. Its ATIP office is a medium-sized office in a department with a large multifaceted mandate, which results in a high volume of complex requests. The access requests at issue, once records are obtained from the sectors, will have to be triaged, imported and indexed. Once imported, and due to their complexity level, they will have to be reviewed by a senior analyst – the institution presently has four with the necessary skills and knowledge to do so. Treating these requests as is would use an excessive amount of the institution’s ATIP Services resources, especially at the senior analyst level, to the detriment of its obligations to other requesters that have submitted files yielding complex records.

Discussion

When analyzing access requests A-2023-00305 and A-2023-00314, the Commissioner can easily see how these two requests are repetitive.

In A-2023-00305, the requester is asking for the same types of documents (emails, briefing notes, memos, etc.) they are asking for in A-2023-00303 and during the same period (February 1, 2022, to February 1, 2023). The only difference between A-2023-00305 and A-2023-00303 is the search terms being used. While A-2023-00305 asked for documents mentioning “Volkswagen,” A-2023-00303 asks for documents mentioning “Volkswagen, VW, Volkswagen Group, Volkswagen Group Canada, or Volkswagen Canada.” It is clear to the Commissioner that access request A-2023-00305 is fully encompassed by access request A-2023-00303.

A similar analysis can be made of A-2023-00314. In that request, the requester is asking for the same types of documents (emails, briefing notes, memos, etc.) they are asking for in A-2023-00310, during the same period (April 17, 2023, to May 17, 2023). The only difference between A-2023-00314 and A-2023-00310 is the search terms being used. While A-2023-00314 asked for documents mentioning “Volkswagen,” A-2023-00310 asks for documents mentioning “Volkswagen, VW, Volkswagen Group, Volkswagen Group Canada, Volkswagen Canada, Volkswagen motion, VW motion, Vis motion, Brad Vis motion, CPC Volkswagen motion, Conservative Volkswagen motion, or INDU Volkswagen motion”. It is clear to the Commissioner that access request A-2023-00314 is fully encompassed by access request A-2023-00310.

Thus, the Commissioner finds that A-2023-00305 and A-2023-00314 are repetitive, given that no new information is being sought; the records requested in these two requests are entirely captured by other access requests.

In their response to the institution’s application, the requester argued that “[g]iven past difficulties with getting records from this department at the committee, [they] felt it necessary to cast a wide net allowing minor overlap between requests.” It is unclear to the Commissioner why submitting overlapping and repetitive requests would reduce the difficulties with getting records from the institution. To the contrary, submitting repetitive and overlapping requests would increase its workload and possibly make it more difficult to obtain records from the institution.

In some cases, a change in circumstances or loss of records already obtained may create a situation where a repetitive or substantially similar request is warranted. The requester did not provide a compelling explanation that explained the need for repetitive or substantially similar requests.

In a previous decision, 2021 OIC 30, the Commissioner found that a requester’s duplicative request was a misuse of the Act when no new information was being sought.

In the present instance, the Commissioner concludes that the requester’s access requests A-2023-00305 and A-2023-00314, which are repetitive, are a misuse of the Act and constitute an abuse of the right of access.

While the Commissioner comes to the conclusion that access requests A-2023-00305 and A-2023-00314 are repetitive, she reaches a different conclusion concerning A-2023-00303, A-2023-00308 and A-2023-00310.

It is clear to the Commissioner that access request A-2023-00303 is seeking records that are not captured by the other two remaining access requests. A-2023-00303 covers a completely different timeframe (February 1, 2022, to February 1, 2023) than A-2023-00308 (February 1, 2023, to July 1, 2023), and A-2023-00310 (April 17, 2023, to May 17, 2023). Thus, the response to A-2023-00303 would not yield the same records as A-2023-00308 and A-2023-00310.

The timeframe of February 1, 2023, to July 1, 2023, for A-2023-00308 seeking records that regard, mention, or make reference to Volkswagen overlaps with A-2023-00310 for the period of April 17, 2023, to May 17, 2023. Thus, with the exception of a one-month period (April to May 2023), the response to A-2023-00308 would not yield the same records as A-2023-00310.

Finally, access request A-2023-00310 is the only access request that seeks records mentioning “vis motion.” As such, it would capture records that are not captured by A-2023-00303 and A-2023-00308.

Given that A-2023-00303, A-2023-00308 and A-2023-00310 would capture different records, the Commissioner concludes that they are not fully repetitive. They therefore do not constitute an abuse of the right to make a request for information for this reason.

The Commissioner turns now to the question of whether these three access requests overburden the institution, and by the same token hinder others’ right of access.

In their submissions, the requester did not make any representations on this issue.

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 access requests, it interferes with the ability of others to legitimately exercise their rights of access.

Having considered all the representations and evidence submitted by the institution, the Commissioner finds that the institution did not provide sufficient evidence to reasonably conclude that the access requests would overburden it and hinder others’ right of access.

The overlapping nature of the five access requests could make them difficult to deal with, in that it is necessary in each case to determine what the requester wants and if the institution has already provided the requested records. However, the Commissioner does not find that this is the case with the three remaining requests considering that there is only a one-month overlap period between A-2023-00308 and A-2023-00310 for records that regard, mention, or make reference to Volkswagen.

The institution’s claim that the number of hours required is unreasonable and would be “debilitating to the automotive branch” is not sufficiently supported by evidence. The Commissioner acknowledges that the estimated number of responsive records could be high, but it does not strike her as overly burdensome. The institution did not provide sufficient information regarding workload comparisons, competing priorities and to justify the expected response time beyond claiming that it had calculated that it needed between 2.5 to 13 years to respond.

The institution has not persuaded the Commissioner that acting on each of the three access requests would overburden it.

Given her conclusion that the institution has not demonstrated that A-2023-00303, A-2023-00308 and A-2023-00310 constitute an abuse of the right to make a request, the Commissioner will now turn to the question of whether these three requests are vexatious.

Are the requests vexatious?

The term “vexatious” is not defined in the Act. In the context of an access request, the term is generally taken to mean a request filed primarily to embarrass, to harass, or to cause annoyance or trouble. However, determining whether a request is vexatious is a fact-dependent exercise that must be undertaken case by case. For this reason, it is best not to strictly define this term (Canada v Olumide, 2017 FCA 42).

Even seemingly legitimate access requests can be vexatious if they are primarily brought, knowingly or unknowingly, for improper purposes, such as inflicting damage or wreaking retribution upon a government institution. A request may also be vexatious if it is made or pursued in a vexatious manner.

While section 6.1 specifies that it is the access request, as opposed to the requester, that must be vexatious, the circumstances surrounding a request and the behaviour of a requester may be relevant if they demonstrate an improper purpose underlying the request. In such circumstances, a request will be vexatious if there is a clear link between the request itself and the vexatious behaviour.

The institution’s submissions in support of its position that the requests are vexatious were substantially similar to those advanced when claiming that the requests are an abuse of the right of access. According to the institution, there are two factors that specifically demonstrate that the requests are vexatious: an excessive volume of requests and the timing of the requests.

Discussion

The Commissioner finds that the institution’s position that the three remaining access requests are vexatious is not supported by the evidence. The only argument raised by the institution is that the requester submitted 37 access requests on the same day and that some of those requests are repetitive and could have been easily combined.

The fact that the three remaining access requests were made on the same day, along with 34 other access requests (not all about Volkswagen) does not establish that the requests are vexatious.

In their response to the institution’s application, the requester explained that “[w]ith regard to the Volkswagen ATIPs specifically, [the institution] has been very reluctant to release any information on the contract, even when ordered to do so by parliamentary committees like OGGO or INDU sometimes defying parliamentary orders. Given past difficulties with getting records from this department at the committee, I felt it necessary to cast a wide net allowing minor overlap between requests with various communication means.”

They further claimed that “[t]hese requests are not vexatious and are an honest attempt to access records as means to hold this department accountable.” The Commissioner has no reason to doubt the requester’s assertion with respect to the three remaining access requests.

The Commissioner does not find that the requests were brought, knowingly or unknowingly, for improper purposes. That said, whatever difficulties parliamentary committees have had in obtaining information in the past, making repetitive and overlapping access requests is not the solution.

Based on the above, the Commissioner concludes that the institution has not sufficiently demonstrated that A-2023-00303, A-2023-00308 and A-2023-00310 are vexatious.

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 two access requests (A-2023-00305 and A-2023-00314), 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.

The evidence before the Commissioner suggests that two main attempts were made to assist the requester. The first occurred on the same day the 37 requests were made, namely, August 28, 2023. On that day, the institution explained that processing this number of large requests simultaneously would have a prohibitive effect on the department and put restraints on its ability to process new and active requests. The institution asked the requester if they would consent to stagger and list requests in order of priority in an effort to balance the workload. The requester rejected the suggestion.

The second attempt occurred on September 7, 2023. On that day, the institution explained that the requests required clarification and proposed a way forward to the requester. It suggested narrowing the scope of the request to records “pertaining to or regarding” and combining the requests to eliminate duplication of records between requests and to ease some of the administrative burden that searching for the records will create. The requester responded “Please respect the wording of each individual request. The wording and scope each request are intentional.”

Given the requester’s lack of cooperation, the Commissioner finds that the institution made every reasonable effort to assist them in the circumstances. Thus, she 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. Requesters should not hamper genuine efforts to assist from the outset.

Timeliness of the application

The institution received the access requests on August 28, 2023, but only applied for the Commissioner’s permission to decline to act on these requests on March 21, 2024, about 7 months later.

The institution explained that the reason for the seven-month delay is that, as per its usual process, it tasked out the access requests with the intention to process them as written, given that discussions with the requester had failed.  However, after several meetings with the sector where they explained the disruptive impact these requests were having on their daily operations, the institution determined the requests met the criteria for abuse of the right of access and vexatious requests. This was further evidenced by the sector’s requests for extended retrieval deadlines to accommodate searches for records pertaining to new requests.

Moreover, there was a discussion between the Intake Manager and Director regarding the possibility of submitting an application to the OIC to decline to act on the requests. The institution sought guidance from its Legal Services to ensure compliance with relevant regulations and procedures. Given the timing, its Director, who was retiring in early December, opted to wait for the new Director’s decision on the application.

The institution also explained that, during the seven-month period, the branches and directorates were actively engaged in retrieving records for the requested information.

Finally, the Commissioner notes that time extensions were taken on September 23, 2023, and that these extensions were not expired when the institution presented its application.

For these reasons, the Commissioner concludes that the institution presented its application in a timely manner.

Decision

The institution has established that two access requests, A-2023-00305 and A-2023-00314, met one or more of the requirements of subsection 6.1(1):

• These requests are seeking information that is already captured by other access requests, and are thus repetitive;
• For that reason, they constitute a misuse of the right to request access to information.

The circumstances warrant an exercise of the Commissioner’s discretionary power to authorize the institution to decline to act on these two access requests.

That said, the institution has not established that the remaining access requests, A-2023-00303, A-2023-00308 and A-2023-00310, met one or more of the requirements of subsection 6.1(1).

Therefore, the application is partially granted.