Decision pursuant to 6.1, 2024 OIC 69

Date of decision: October 2024

Summary

An institution submitted an application seeking the Information Commissioner’s approval to decline to act on 597 access requests under subsection 6.1(1) of the Access to Information Act. In the institution’s opinion, the requests are an abuse of the right to make a request and vexatious.

The Commissioner finds that the institution established that 550 of the 597 access requests are an abuse of the right to make a request. The circumstances warrant that she provides her approval to the institution to decline to act on these access requests. She is not providing her approval for the 47 remaining access requests. The institution did not show they are vexatious or 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

On May 23, 2024, the institution sought the Commissioner’s approval to decline to act on 597 access requests it had received between January 6, 2022 and March 11, 2024. The access requests all have the following structure:

• All e-mails of [Employee’s name] from [Date 1] to [Date 2].

Each access requests are seeking emails of a specific key employee over a period of a couple of months. According to the institution, the access requests are an abuse of the right to make a request and vexatious.

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.

Purposes of the requests

The first argument presented by the institution to support its view that the access requests constitute an abuse of the right to make an access request concerns the purpose of the requests. The institution argues that the requester freely admits that their access requests are designed, not for the purpose of obtaining documents or information, but with a view to increasing the resources allocated to the institution’s Access to Information and Privacy (ATIP) Directorate, and to grow the complaints inventory of the Office of the Information Commissioner (OIC).

To support this argument, the institution provided an email dated October 3, 2023, in which the ATIP analyst wrote the following to the requester:

“Yes, we have received your requests. However, I would like to discuss with you if possible. We have 470 opened requests. We are overwhelmed. LOL”

In their response, the requester wrote the following:

“Yep…we chatted and I think you have the three year plan. Grow the inventory. Grow the OIC inventory. Annual reports will show timelines. And then…more resources get allocated to your shop. If you have a better way, please let me know”

The institution further explained that the requester has asked that every access request be processed in two phases:

1. The institution provides a list of the subject headers for every emails responsive to the access request
2. The institution provides to the requester the full content of some emails, including the attachments, upon request

The institution mentioned that up until now, after having received a list of the subject headers for all the emails, the requester has either not requested, during phase 2, any emails or less than five emails on diverse, unrelated subjects. The institution is of the view that the requester has no specific subject of interest, and that their objective, as they stated, is to grow the institution’s inventory of access requests and the OIC’s inventory of complaints and to leave these two institutions with no other choice but to increase their resources. According to the institution, the requester’s purposes defeat the spirit of the Act. Access requests should not and cannot be made or used as an administrative and/or political mean to try to pressure institutions to increase their resources.

Interference and other’s right of access

The second main argument presented by the institution is that responding to the access requests would unreasonably interfere with the delivery of its core services, which would then limit its ability to respond to other access requests.

To support this view, the institution explained that to complete phase 1 of the process explained above, it seeks the assistance of another institution to retrieve the emails, thereby ensuring the records are safeguarded. The totality of the access requests requires the collection and storage of large volumes of records. Furthermore, the administrative process and review have required an increasing amount of human and technical resources.

According to the institution, the lists of email subject headers range from approximately 50 to 800 pages. Based on its experience processing 15 of these access requests, the completion of phase 1 for one request requires approximately 5 to 30 days of processing time. Based on an average of 10 days per request, the institution estimates that the processing of the 597 requests will require a minimum of 5450 days.

Moreover, the institution mentions that the access requests were generally made at intervals of 2-to-5-month, and it expects that similar requests will continue to be made in the near future. The requester has been clear in their correspondence with the institution that they will continue to make such requests: “I will be repeating the requests for e-mails over time.”

Finally, the institution explains that retrieving and processing records on this scale interferes unreasonably with the delivery of its core services. Its subject experts search and review a high volume of access requests, at the same time they carry out their other day-to-day duties. Requiring its subject experts to provide advice on large volumes of emails, and to be involved in processing these access requests, would impact the institution’s ability to respond to other requests, preventing others from exercising their right of access and interfering with the overall operational duties and responsibilities of the department.

Discussion

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 it did not provide sufficient evidence to reasonably conclude that the 597 access requests would overburden it and hinder others’ right of access.

The institution’s claim that “retrieving and processing records on this scale interferes unreasonably with the delivery of its core services” is not sufficiently supported by evidence. The Commissioner acknowledges that the volume 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 and competing priorities to justify the expected response time beyond claiming that it had calculated that it needed a minimum of 5450 days to respond.

In response to the institution’s claim that the requester’s access requests should not be used to put pressure on institutions to increase their resources, which runs counter to the spirit of the Act, the requester explained that they have been a high-volume access requester from 1992 to present. They provide the product of their access requests to the media. Some records are published, while others serve as background confirmation for journalists and politicians.

The requester also explained that their two-phase methodology for requesting and obtaining emails from the same specific employees, made repeatedly over time (the same access request, made again, and again, over time), has demonstrated to be very effective in terms of the objectives of the Access to Information Act. The requester indicates that “[i]t is the ‘Catch-22’ problem. How can the Requestor know the records to ask for, unless the Requestor knows the records exist?” The requester explains that they are proceeding this way to know which records of interest exist, and which records to ask for.

The requester further argues that the effectiveness of this methodology in terms of the objectives of the Access to Information Act is demonstrated by multiple news stories over many years, revealing issues of concern to the public that would not otherwise have been made known to the public. The requester provided the following examples, among others:

The Commissioner finds that the requester’s access requests were originally motivated by a genuine interest in obtaining information. That said, the evidence before her suggests that a shift occurred at some point in time, such that the main purpose of most of the access requests is no longer to obtain information. This is evidenced by the requester’s willingness to withdraw older access requests in the two situations described below.

The requester stated they discussed with the institution “the idea that the large and unprocessed inventory of Access requests would promote an allocation of resources within [the institution] to allow [it] to process the large and unprocessed inventory of Access requests, so that [it] would be in compliance with the Access to Information Act.” The requester also stated they proposed during these discussions:

As explained above, the requester was willing to abandon their oldest access requests once additional resources are allocated to the institution’s ATIP office. This suggests to the Commissioner that, although the main purpose of the oldest requests was originally to obtain access to the information requested, this seems to have been less the case when the requester indicated their willingness to withdraw them, once the resources allocated to the institution’s ATIP office have been increased.

The second element concerns the offer that the requester made in its response to the present application. The requester stated the following:

Again, the willingness of the requester to abandon 550 access requests in exchange for a credit and shorter processing time reinforces the idea that the main purpose of most of these access requests is no longer to obtain information. Rather, the requester seems to be using 550 out of the 597 access requests as a bargaining chip to obtain shorter processing time for other access requests.

The Commissioner notes that this is not the first time the requester has been using the oldest access requests to negotiate shorter processing time. In an email to the institution dated June 6, 2022, the requester wrote:

This communication suggests that the requester has been using some of their oldest access requests to threaten the institution: unless it provides a response in a timely matter, the requester will remove the hold on their other requests.

This is confirmed by the requester’s representations, in which they mention the following:

Using a backlog of access requests to negotiate shorter processing time for other access requests is not an appropriate use of the right to make an access request. If the requester is unhappy with the processing time of their access requests, the appropriate remedy is to submit a complaint to the OIC.

Based on the above, the Commissioner finds that the primary purpose of the 550 oldest access requests is no longer to seek information, but rather to increase the resources allocated to the ATIP office and to negotiate shorter processing times for newer requests. This particular factor alone is sufficient, in the present circumstances, to conclude that these requests amount to an abuse of the right to make an access request.

As for the 47 newest access requests, the Commissioner does not find that there is sufficient evidence to conclude that their primary purpose is no longer to seek information.

Given her conclusion that the institution has not demonstrated that all the 597 access requests constitute an abuse of the right to make a request, the Commissioner will now turn to the question of whether the access 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.

To support its position that the requests are vexatious, the institution argued that, in the phase 2 process, the requester has either not requested any emails or less than five emails. The fact that the requester often does not request full email in phase 2 is, according to the institution, vexatious:

Discussion

The Commissioner finds that the institution’s position that the access requests are vexatious is not supported by the evidence. The only argument raised by the institution is that the requester has requested access to the body of only a few emails in Phase 2 in the past. This is not sufficient on its own to establish that the requests are vexatious.

In any event, none of the 47 remaining access requests appear to have reached phase 2 of the process established by the requester. There is no indication that, once the list of emails has been forwarded to the requester, they will request access to only a few of them, or even none at all.

Based on the above, the Commissioner concludes that the institution has not sufficiently demonstrated that the access requests 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 550 access requests, the Commissioner must now exercise her discretionary power to either grant or refuse the application.

In exercising her discretion, the Commissioner 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 timelier 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 the institution has made many attempts to assist the requester, has had an ongoing conversation about their access requests, and has adapted to the special demands of the requester. The following examples are taken from the email threads that were provided to the Commissioner.

One attempt to assist the requester was made around February 8, 2022. In an email, the institution mentioned that it contacted another institution to obtain help collecting the requested records. This shows that the institution made efforts to provide timely access to the records. In that same email, the institution also mentioned that a discussion concerning the scope of the request took place, and that the requester agreed to limit the timeframe temporarily and to reassess it when an interim response has been provided.

Another attempt was made around February 23, 2022. In an email, the institution mentions that it met with yet another institution, following the requester’s suggestion, to obtain advice on the best way to process the requester’s access requests. The institution added that the “meeting was very constructive and [it] will review diligently the [other institution] practices and hopefully be able to implement something similar that responds to [its] unique realities.” This also shows that the institution made efforts to provide timely access to the records.

Another attempt was made on March 31, 2022, when the institution suggested to the requester to exclude Cabinet confidence to expedite the processing of their request.

In an email dated October 14, 2022, the institution also suggested to the requester to modify the timeframe of their oldest requests, to capture more up-to-date information.

Based on the above, the Commissioner finds that the institution made every reasonable effort to assist the requester. Thus, she concludes that the institution established that it had met its duty to assist the requester.

Public interest

The requester argued that the product of their access requests has given rise to multiple news stories that revealed issues of concern to the public that would not otherwise have been made known to the public.

The Commissioner agrees that some of the records sought by the requester might be in the public interest, and she does not dispute the importance of that information, nor their contribution to the media. However, the public interest in obtaining information does not in this case outweigh the harm to the public interest that the 550 oldest access requests might cause.

On the one hand, the 550 oldest access requests appear to have a limited value for the public interest, given that the requester is willing to abandon them. On the other hand, responding to these access requests would monopolize an important part of public resources, which could be used elsewhere.

In the particular circumstances of this case, the Commissioner finds that it is not overall in the public interest to monopolize public resources to respond to access requests that are no longer aimed at seeking information.

Decision

The institution has established that the 550 oldest access requests met one or more of the requirements of subsection 6.1(1):

• While these requests may have been made with the primary purpose of gaining access to information, this purpose was lost over time;
• The primary purpose of these access requests is no longer to seek information, but rather to increase the resources allocated to the ATIP office and to negotiate shorter processing time for the newest requests.
• These requests intend to accomplish some objective other than to gain access, which amounts to an abuse of the right to make an access request.

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

Therefore, the application is partially granted.