Decision pursuant to 6.1, 2023 OIC 49

Date of decision: October 2023

Summary

An institution submitted an application seeking the Information Commissioner’s approval to decline to act on three access requests under subsection 6.1(1) of the Access to Information Act. In the institution’s opinion, these requests are made in bad faith and are an abuse of the right to make a request. The institution further claims that it met its duty to assist the requester prior to seeking approval to decline to act.

The Commissioner finds that the institution did show that it had fulfilled its duty to assist the requester prior to seeking approval to decline to act. She also finds that the institution established that the access requests are an abuse of the right to make a request.

The application is granted.

Application

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 one or more of the requirements under subsection 6.1(1).

The right of access to information under the control of a government institution has been recognized as quasi-constitutional in nature (Blood Tribe (Department of Health) v. Canada (Privacy Commission), 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, approval to decline an access request will only be provided if there is clear and compelling evidence to support the institution’s position that the access request is vexatious, made in bad faith or is otherwise an abuse of the right to make a request for access to records. (See, for example: Saskatchewan (Advanced Education) (Re), 2010 CanLII 28547 (SK IPC) at paras. 43-47; Northwest Territories (Public Body) (Re), 2017 CanLII 73304.)

If the institution does establish that one or more of the requirements of subsection 6.1(1) apply, the Commissioner must further determine whether the circumstances warrant exercising her discretionary power to grant the institution’s application to decline to act on the request.

On July 11, 2023, 2023, the institution sought the Commissioner’s approval to decline to act on three access requests it received on June 5, 2023. The access requests are for the following information:

According to the institution, the access requests are made in bad faith and amount to an abuse of the right to make a request for access to records.

Did the institution meet its obligation to assist the requester?

Before seeking the Commissioner’s approval, institutions should normally make every reasonable effort to help requesters with the access request, as per their responsibilities under subsection 4(2.1).

Subsection 4(2.1) sets out a general duty to assist requesters. The scope of the duty to assist is broad and extends as far as it would be reasonable for the institution to provide assistance. 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.

Having considered the email exchange between the institution and the requester, dated June 23^rd, 2023, the Commissioner is satisfied that, in the circumstances, the institution has established that it met its duty to assist as required by subsection 4(2.1).

Is the request 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 abuse or inappropriate manner.

This may be the case when a request is directed towards a purpose other than obtaining documents or information. It also may 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.

Among other things, the institution maintains that the primary purpose of the access requests is not to seek to enhance accountability and transparency of the institution but is instead aimed at embarrassing or discrediting the employees and / or veteran clients.

In demonstrating why it viewed the requests as an abuse of the right of access, the institution explained that prior to seeking approval to decline to act on the requests, it communicated its concerns to the requester, outlining why in its view the requests fall outside the purpose of the Act, are vexatious and / or made in bad faith. It also provided the requester with an opportunity to reconsider the requests, as framed. In particular, the institution emails the requester the following:

The requester responded:

The Commissioner notes that even though the requester mentioned that they were “possibly” only interested in government employees use in their internal communications, they still wanted their ATIP requests processed as written. When the requester was given the opportunity to respond to the 6.1 applications, they responded again that their intention was aimed at internal employees’ communication, but would not confirm whether they had any correspondence with the institution confirming that they only wanted those communications. 

Accordingly, the Commissioner must determine whether the three requests, as written, are an abuse of the right of access as argued by the institution.

The institution notes that the requests contain vulgar, offensive and insulting language, which many individuals are not comfortable to write or use. The institution explained that while it explored using an Artificial Intelligence (AI) search tool in order to avoid requiring that individual employees conduct searches on the keywords listed, this proved problematic and inefficient as it resulted in the retrieval of non-relevant records.

According to the institution, the requests would therefore require that each of its 4,068 employees search the keywords individually, by manually entering each word in their search tools. The institution’s Human Resources (HR) office, meanwhile, has expressed concern regarding the negative impact on employees of requiring that they conduct searches on the words used.

The institution showed that the number and the nature of the key words listed in the request would yield in many records. This is so because according to the institution many of the words are used in communications from clients: "[The institution’s] clients with significant health challenges may not always be careful in their choice of language when corresponding with the Department." The institution further explains that after making preliminary researches, "these requests will return thousands of non-relevant records overburdening our institution to the extent that it will threaten and diminish the legitimate exercise of the right of access by others as they will affect our ability to process other requests and respond to those requests on time."

The institution explained that its Access to Information and Privacy (ATIP) team, responsible for processing requests under the Act, is made up of four full-time officers. According to the institution, in fiscal year 2022 the institution received a total of 69 access to information requests. For fiscal year 2023, as of the date of the institution’s application for approval to decline to act, it had received 75 requests, 42 of which were made by the current requester. These 42 requests were also submitted over a 28 working day timeframe.

As mentioned above, the requester, in response, simply stated that although they understand the requests “appear irregular at face value”, “the nature and quality of language that [government] employees use in referring to each other, […] clients and third parties is well within the scope of the Access to Information Act.” While the requester also cited three file numbers of requests allegedly processed by other departments, no information or documentation was provided regarding those other similar requests.

Having considered the parties’ submissions, the Commissioner is satisfied that the cumulative nature and effect of the requests sufficiently evidence that the requests are an abuse of the right to make requests.

The Commissioner accepts the institution’s explanation as to why, in the present instance, the only practical means by which it could conduct a search for responsive records would be to task individual employees to conduct keywords searches on the terms identified in the request.

While the requester maintains that the requests are directed at seeking information regarding the nature and quality of language used by government employees and / or the institution’s clients, and that the requests are for a legitimate purpose, this is not how the requests are framed. In the Commissioner’s view, the following factors, establish on a balance of probabilities that the requests should be allowed not to proceed:

• the breadth of the requests would require a search through all communications over a three-year period with no limits in terms of the types of records sought or from whom or to whom they were directed;
• the volume of requests submitted over a relatively short timeframe (42 requests in 28 workdays); and
• the requests do not accord with the public interest in that they overburden the institution and hinder other requesters’ rights of access.

Given the Commissioner’s conclusion that the requests are an abuse of the right to make requests, it is not necessary for her to consider whether the requests were also made in bad faith.

Decision

The institution has established that the access requests are an abuse of the right of access and met the requirements of subsection 6.1(1).

The circumstances warrant that the Commissioner provides her approval to the institution to decline to act on the access requests at issue.

Therefore, the application is granted.