Decision pursuant to 6.1, 2023 OIC 03

Date of decision: February 2023

Summary

An institution submitted an application to the Information Commissioner, under subsection 6.1(1) of the Access to Information Act, for approval to decline to act on an access to information request. The institution submitted that the request is vexatious and constitutes an abuse of the right to make a request. The institution further submitted that it had met its duty to assist the requester in connection with the request.

The Commissioner found that the institution met its burden of establishing that the access request is an abuse of the right to make a request. The Commissioner also found that the institution met its duty to assist obligations under subsection 4(2.1) prior to seeking approval to decline to act. Given the Commissioner’s conclusion, it was not necessary to further consider whether the request was also vexatious.

The application is granted.

The Access Request

The institution received an access to information request for: (1) all emails and text messages from the mailboxes of three employees in the Human Resources (HR) sector, from the start of their employment, including attachments in full; and (2) all digital files, documents and records on the computers and telephones of those employees, including both on local and shared drives.

Discussion

Subsection 6.1(1) provides that 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 opinion of the head of the institution, the request is vexatious, is made in bad faith or is otherwise an abuse of the right to make a request for access to records. The institution bears the burden of establishing that the request meets the requirements under subsection 6.1(1) of the Act.

The right of access to information to records under the control of a government institution has been recognized as quasi-constitutional in nature (Blood Tribe (Department of Health) v. Canada (Privacy Commissioner), 2006 FCA 334 at para 24; see also: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 at para 40). Bearing this in mind, authorization to decline a request will only be granted if the application is supported by clear and compelling evidence (see, for example: Saskatchewan (Advanced Education) (Re), 2010 CanLII 28547 (SK IPC) at paras 43-47; Northwest Territories (Public Body) (Re), 2017 CanLII 73304).

Institutions, pursuant to subsection 4(2.1), also have an obligation to assist requesters in connection with their requests. As explained in the Guidance and Process documents issued by the Office of the Information Commissioner regarding 6.1 applications, institutions should only seek the Commissioner’s approval to decline to act on an access request after having made every reasonable effort to help the requester with the access request.

Duty to assist

The Commissioner was satisfied that the institution made every reasonable effort to assist the requester in connection with the request, fulfilling its duty to assist obligations under subsection 4(2.1), prior to seeking approval to decline to act.

The request was overly broad, offering no clarity regarding the substance of records or information sought. The institution fulfilled its duty to assist obligations under subsection 4(2.1), through multiple efforts to assist the requester in connection with the request. This included: explaining that the request required clarification; proposing ways to clarify and/or target the request; informing the requester of the estimated volume and processing time for portions of the requested records; offering to provide the requester with an informal example of how the records would be processed to help the requester understand what information they might expect to receive in response to the request as framed; and further offering to help the requester reformulate the request.

The requester, while initially receptive to some of the institution’s proposals, reverted to the original wording of their request, refusing to provide clarification. The requester had an obligation to provide sufficient clarity to the institution; both parties have an obligation to collaborate.

Do the requests amount to an abuse of the right to make a request for access to records?

The term “abuse” is commonly understood to mean a misuse or improper use.

Abuse of the right of access must be looked at on a case-by-case basis and may in some situations arise based on a combination of factors. In Crocker v. British Columbia (Information and Privacy Commissioner), 1997 CanLII 4406, the British Columbia Supreme Court concluded that a request which diminishes the right of access of other requesters and/or affects the institution’s ability to perform its other duties and responsibilities may constitute an abuse of the right of access.

The institution alleged that the request is “invasive”, in that: it seeks all records of three HR employees accumulated throughout their employment with the institution; involves “a large volume of escalated and priority files of individuals, due to the nature of their work”; the requester has stated “…they were hoping to find evidence of alleged harassment against other employees”, while having been told that such information is other individuals’ personal information.

The institution made a number of submissions regarding the time and cost needed to process the request, including detailed estimates of the number of pages involved and the time needed for their review.

It further made submissions regarding the request’s negative impact on the institution’s HR and Access to Information and Privacy (ATIP) functions. More specifically, that retrieving and processing responsive records would unreasonably interfere with HR’s delivery of core services and impede ATIP’s ability to respond to other requests, preventing others’ right of access.

The institution further alleged that: the request is “[n]ot a request for access to identifiable records in the spirit of the legislation”; and the requester is aware of the impact of the request, yet has declined to clarify or adjust the scope of the request.

The requester denies that the request is an abuse of the right to make a request, stating that the institution did not provide any evidence to prove the request is malicious or was made in bad faith. The requester also disputes the time and costs said to be needed to process the request, maintaining that they are greatly exaggerated based on flawed calculations.

The requester further states that the nature of the request is purposefully broad; the requester alleges that the record holders are engaged in breaches of conduct, and that narrowing the scope of the request could be used to conceal “potentially incriminating evidence”.

The Commissioner, upon considering the parties’ submissions and supporting documentations concluded that the access request is overly broad, imposed an undue burden on the institution, and impeded the rights of others, so as to constitute an abuse of the right to make a request. In reaching this finding the Commissioner stated that the institution had established, among other things, that:

the request set out no limitations in terms of the substance of any records or information sought;
[while the institution’s calculations of the estimated volume of responsive records might be higher than the actual number of records involved] the request would involve an extraordinarily large volume of responsive records;
given the breadth of the request, the time and effort needed to identify, retrieve and process the responsive records would impose a tremendous burden on the institution;
excessive resources would be required to respond to the request to the detriment of the institution’s other obligations, including ATIP services’ obligations to other requesters under the Act; and
despite having been informed of the enormity of the task of responding to the request as framed and its negative impact on the institution's ability to fulfill its other obligations, the requestor has refused to clarify the request.

Given the Commissioner’s conclusion that the request is an abuse of the right of access, it was not necessary to further consider whether the request is also vexatious.

Result

The Commissioner granted the application.