Decision pursuant to 6.1, 2021 OIC 23

Date: August 2021

Summary

An institution submitted an application to the Information Commissioner for approval to decline to act on two requests for information under subsection 6.1(1) of the Access to Information Act (the Act). In its application, the institution submitted that the requests are vexatious, made in bad faith and are otherwise an abuse of the right of access. It also maintained that it met its duty to assist the requester in connection with the requests.

The Commissioner found that the institution did not establish that the requests are vexatious, made in bad faith or are otherwise an abuse of the right to make a request. The Commissioner also found that the institution did not establish that it fulfilled its duty to assist obligations under subsection 4(2.1) prior to seeking approval to decline to act on the requests.

The application is denied and the institution is required to act on the access requests.

Vexatious

The term “vexatious” is not defined in the Act. “Vexatious” is generally understood to mean with intent to annoy, harass, embarrass or cause discomfort. However, what is “vexatious” cannot be strictly defined; what is “vexatious” is fact dependent and must be assessed case-by-case. (See, for example: Canada v. Olumide, 2017 FCA 42)

According to the institution, following a series of workplace complaints involving the requester, the requester filed 157 separate requests under the Act and the Privacy Act.

The institution claimed that “[m]any of these requests are duplicative in nature”. The institution cited one instance in which the requester submitted parallel requests for the same information under both the Act and Privacy Act; and stated that about a third of the requests submitted since the workplace incidents involved “…targeted information in the possession” of a particular named individual.

Upon reviewing the institution’s submissions and supporting evidence, the Commissioner found that the institution did not establish any duplication. There was no indication that the two requests in questions were the subject of a parallel request. In addition, even if the requester had made the same requests under both statutes, the Commissioner noted that it was far from apparent that those requests would be duplicative. She explained that given the distinct purposes of the Act and Privacy Act and potential differences in these statutes’ applicable exemptions, analogous requests submitted under these different legislative regimes, may well result in the disclosure of different information.

The Commissioner also found that the fact that numerous requests submitted by the requester have required the tasking of particular individuals for the search and retrieval of responsive records did not mean that the current requests are duplicative in nature.

The institution submitted that the motives of the requester are “other than obtaining access to information” and are intended to disseminate confidential information, “target” individuals believed to have acted negatively towards the requester; and “impose a chilling effect on other … processes currently underway”.

The Commissioner found that the institution produced no evidence to support these claims.

The institution further suggested that the two access requests could not be tasked without disseminating sensitive information and it must therefore be inferred that the dissemination of sensitive information is in fact the requester’s motivation in making these requests. The Commissioner found that the institution did not establish that a tasking of the requests would invariably result in the dissemination of sensitive information. If concerned that the full text of the requests would reveal information that should not be shared, the institution could presumably task named individuals with the retrieval of records fitting the request’s broad opening words, i.e., all documents related to the requester within a specified time frame.

The institution claimed that the requester is using the ATIP process “…to pursue fishing expeditions, designed to confirm [their] suspicions that … individuals … are speaking about [the requester]”. In making this submission, the institution did not establish that an individual’s reliance on the Act to ascertain what if anything is being said about them renders a request “vexatious”, so as to justify an institution declining to act.

Given the particular context under which the two requests had been made, and in the absence of any cogent evidence to substantiate an allegation of improper motive, the Commissioner was not satisfied that the requests were vexatious.

The Commissioner considered the institution’s submissions that the request ought to be considered “vexatious” because of the negative impact of the requests on the workplace. While some may perceive a request for records involving labour relations matters as an impediment to the healing process, or even as a form of retaliation or harassment, no cogent evidence was provided to support a claim that the requests were made with the intent to annoy, harass, embarrass or cause discomfort. While the tasking and retrieval of records potentially involving labour relations issues may amount to an inconvenience or annoyance on the part of the institution and/or those tasked, perceptions of improper motive, in themselves, are not sufficient to establish that the request is “vexatious” so as to justify declining to act.

Finally the institution failed to sufficiently explain how responding to the two requests would unduly burden the institution, so as to render them vexatious.

Bad Faith or Abuse of the Right of Access

The institution relied on the same submissions made in support of its claim that the requests are vexatious, to support its contention that they were made in bad faith, and that they were an abuse of the right to make a request. The institution’s application failed to sufficiently establish any improper motive or objective on the requester’s part. As there was no cogent evidence that the requests were made for a wrongful, dishonest or improper purpose, the Commissioner was not satisfied that the requests were made in bad faith, nor that they constitute an abuse of the right to make an access request under the Act.

Duty to Assist

The Commissioner was also not satisfied that the institution established that it fulfilled its duty to assist obligations under subsection 4(2.1), prior to applying for approval to decline to act.

Specifically, the Commissioner was not satisfied that the institution explored all mitigation measures to accommodate the requester, while avoiding the dissemination of information considered sensitive. The Commissioner pointed out that the institution could presumably task named individuals with the retrieval of records fitting the broader opening words of the request for all documents regarding [the requester] for a specified time frame, while omitting the more detailed descriptive wording that might result in inferences being drawn regarding matters of some sensitivity. It is also unclear whether other alternatives, including the search and retrieval of potentially responsive records by someone designated from the institution’s Information Technology sector, was sufficiently explored.

Result

The Commissioner denied the application.