Decision pursuant to 6.1, 2023 OIC 12

Date of decision: June 2022

Summary

An institution submitted an application to the Information Commissioner for approval to decline to act on two requests for access to information under subsection 6.1(1) of the Access to Information Act. The institution stated that the access requests were vexatious and constituted an abuse of the right to make a request for access to records. 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 not only did not fulfill its duty to assist obligations under subsection 4(2.1) of the Act, but it also failed to establish that the requests were made in bad faith or were otherwise an abuse of the right to make a request.

The Commissioner denied the applications.

The Access Requests

The institution received two requests for access to information regarding communications sent and received by certain individuals on all subjects between June 6 and June 10, 2022.

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 to act on an access 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 (NWT IPC)).

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 (OIC) 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 institution submitted that it had communicated with the requester to obtain a list of emails, subjects or persons of interest to narrow the scope of the research and support faster and more efficient retrieval of the requested records; however, the requester refused to narrow the scope. Therefore, the institution submitted that it had met its duty to assist the requester in connection with the request.

The Commissioner was not satisfied that the institution made every reasonable effort to assist the requester in connection with the request, nor that it has fulfilled its duty to assist obligations under subsection 4(2.1), prior to seeking approval to decline to act. The sole purpose of the communication with the requester was to reduce the scope of the requests, and the institution did not establish how this communication alone assisted the individual.

Furthermore, the requester had indicated in the past that the scope of their requests could be narrowed if the institution provided the titles of briefing notes or lists of subjects, which does not seem to have been done in this case.

Are the access requests vexatious?

The term “vexatious” is not defined in the Act. Although the term is generally understood to mean with intent to annoy, harass, embarrass or cause discomfort, Justice Stratas in Canada v. Olumide, 2017 FCA 42, noted that when defining “vexatious” it is best not to be overly precise.

What is “vexatious” may come in all shapes and sizes, and must therefore be assessed on a case-by-case basis.

Factors that may support a finding that a request is vexatious include:

1. excessive volume of access requests;
2. a request that is submitted over and over again by one individual or a group of individuals working in concert with each other;
3. a history or an ongoing pattern of access requests designed to harass or annoy a public body;
4. the timing of access requests.

These factors and all other relevant factors must be considered collectively when determining if a request is vexatious or not.

A request is not “vexatious” simply because a public body is annoyed or irked because the request is for information the release of which may be uncomfortable for the public body. (See for example: Saskatchewan (Advanced Education) (Re), 2010 CanLII 28547 (SK IPC); Insurance Corporation of British Columbia (Re), [2002] B.C.I.P.C.D. No. 57 (BC OIPC), at para 4). Conversely, a request will be considered “vexatious” if it is established that the primary purpose of the request is not to gain access to the information sought, but instead is to continually or repeatedly harass.

To support its allegation that the access requests are vexatious, the institution stated that the requester submitted a large volume of requests over a 13‑month period, and that by refusing to narrow the scope of their requests, the requester showed disregard for their requests’ impact on the diversion of public resources for personal gain. According to the institution, this is part of a pattern of conduct intended to harass the Department and target specific individuals, and proves that the requester does not truly wish to obtain the requested information.

The institution also alleges that the cumulative effect of all these requests has placed a significant burden on the institution and is negatively impacting access requests from other requesters. Furthermore, the COVID‑19 pandemic impacted processing times and created a backlog of access requests. The institution claims that the requester’s behaviour is obliging the institution to divert resources that could be used to respond to other requests.

The institution’s claims that the requests are vexatious, however, were not supported by clear and compelling evidence.

Furthermore, the Commissioner concluded that the institution did not establish that the volume of requests or the requester’s refusal to narrow the scope was meant to harass the institution or target specific individuals. Nor did the institution establish that the requester is diverting public resources for personal gain or does not truly wish to obtain the information. The evidence provided by the requester clearly refuted the institution’s claim that the requests were personally motivated and that the requester was not interested in obtaining the requested information.

Apart from summary data on an approximate number of resources and an amount representing the total cost of responding to the numerous requests submitted by this individual, the institution has not submitted evidence demonstrating how the two requests in and of themselves constitute a burden for the institution or have an impact on the rights of other requesters.

Lastly, the Commissioner notes that the requester had indicated that the scope of their requests could be narrowed if the institution could provide titles of briefing notes or lists of subjects, which does not seem to have been done in this case. This could have reduced the impact of the requester’s requests on workloads and therefore on lead times.

The requester is well within their right to make these requests. Given the institution’s important role and large size, the number of requests submitted over a 13‑month period does not prove that this individual demonstrated vexatious behaviour. The representations and evidence submitted by the requester clearly support this point.

The Commissioner concluded that the two requests were not vexatious.

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

“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. 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.

To support its position that the access requests are an abuse, the institution alleged that the multiple requests submitted within a short period of time, as well as several unfounded complaints made to the OIC, clearly indicate that the requester has no real interest in exercising their right of access. The institution also alleged that, even after having been informed of the work overload being experienced by internal resources, the requester remains convinced that they have the right to make such requests without reducing the scope. Lastly, the institution alleged that this individual’s communications with the institution were often intimidating and threatening.

The requester denies that the requests are an abuse of the right to make a request. This claim is clearly underpinned by the supporting representations and evidence. The requester holds that the Act does not place a limit on the number of access requests that can be submitted, and affirms that their requests are consistent with the purpose of the Act. Furthermore, as briefing note titles and numbers are not published by the institution within the time frames established in the Act, the requester was unable to specify subjects of interest in their requests.

The requester also holds that the request processing delay accrued during the pandemic and the work overload being experienced by the institution’s employees cannot justify a limitation of their rights. Regarding the argument that the requester behaved in an intimidating or threatening manner, the requester explained how, in context, their comments could not be considered as such. Indeed, the requester demonstrated that speaking out against the institution’s non‑compliance with the procedures for access established in the Act constitutes a matter of public interest in and of itself.

The Commissioner concluded that the institution failed to establish that the requests constituted excessive or inappropriate use of the Act. No information was provided as to the impact, the time and the resources involved in processing the two requests for which the institution is requesting authorization not to act.

The fact that the requester submitted several requests and several complaints to the OIC does not in any way indicate that the requester does not wish to obtain the requested information.

Furthermore, the institution did not demonstrate how the requester’s refusal to narrow the scope of their two requests or provide subjects was an abuse of the right to make a request. Nor did the institution establish that the requests are undermining other requesters’ right to access and/or affecting the institution’s capacity to fulfill its other obligations and responsibilities. The Commissioner concluded that the institution failed to establish, on a balance of probabilities, that the access requests are an abuse as a result of intimidating and threatening communications.

The Commissioner concluded that the requests were not an abuse of the right of access.

The Commissioner wishes to remind institutions that, given the nature and importance of the right to access, for an application under section 6.1 to be approved, an institution must provide solid arguments supported by clear and compelling evidence. General allegations are not sufficient.

Result

The Commissioner denied the applications. The institution is required to act on the access requests.