Decision pursuant to 6.1, 2023 OIC 50
Date of decision: October 2023
Summary
An institution submitted an application seeking the Information Commissioner’s approval to decline to act on two access requests under subsection 6.1(1) of the Access to Information Act (the Act). The institution argued that the access requests were made in bad faith and were an abuse of the right to make a request. The institution further submitted that it had fulfilled its duty to assist the requester.
The Commissioner found that the institution did not show that it had fulfilled its duty to assist obligations under subsection 4(2.1) prior to seeking approval to decline to act on the requests. As a result, it is not necessary to determine whether the access requests were made in bad faith or were an abuse of the right to make a request.
The application is denied.
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 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 of 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 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, approval to decline to act on 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 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 show that one or more of the requirements of subsection 6.1(1) apply, the Commissioner must determine whether the circumstances warrant her exercising her discretionary power to grant the institution’s application to decline to act on the request.
First request: Any records, regardless of their nature or format, from another institution related to a specific subject.
Second request: Any records (without limiting the generality of the foregoing), including emails and Teams messages, concerning any access to information requests received by the institution concerning the subject in question. Include any records concerning the processing of or follow-ups to the request. Request for access to my personal information: Any personal information held on me, including any emails that mention my name or title (requester, complainant, etc.).
According to the institution, the duty to assist the person who made the access requests was fulfilled. The institution further stated that the access requests were made in bad faith and were 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 make every reasonable effort to help the requester 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, requiring that an institution make “every reasonable effort” to assist a requester with their request. This duty extends as far as it would be reasonable for the institution to provide assistance. The duty to assist may include helping the requester to clarify their access request, narrow its scope in order to facilitate a more timely response to records sought or provide information needed to enable the institution to identify requested record(s).
What constitutes “every reasonable effort” to assist a requester with their request in a given case depends on the relevant facts and circumstances. In turn, whether an institution has met its obligations under subsection 4(2.1) depends on the facts and must be assessed on a case-by-case basis.
Before determining whether the institution has fulfilled its duty to assist the requester, the chronology of events should be considered.
| Date | Chronology of events |
|---|---|
| January 10, 2022 | The requester presents their first access request: Any records, regardless of their nature or format, from another institution related to the subject in question. |
| February 10, 2022 | The institution made an initial 6.1 application concerning this access request. |
| April 21, 2022 | The Commissioner declined the 6.1 application. The institution indicated that it was continuing to process the access request. |
| May 13, 2022 | The requester made two new requests:
|
| June 14, 2022 | The institution informed the requester that it was taking a 1,095-day extension to respond to the second access request. |
| July 12, 2022 | The records in response to the personal information request were forwarded to the requester (1,052 pages). |
| July 14, 2022 | The requester asked that the records be translated into French. The institution did not respond to this request because of the costs and resources involved. |
| August 5, 2022 | The institution asked the requester to formally confirm that he was requesting translation of the records under paragraph 17(2)(b) of the Privacy Act. |
| August 17, 2022 | The institution followed up with the requester. |
| August 17, 2022 | The requester replied, confirming that he wanted the records translated. |
| August 17, 2022 | Second email from the requester making various proposals, including that of abandoning the first access request in exchange for financial compensation. |
| November 2022 | The requester requested an update on his requests. |
| November 24, 2022 | The institution offered the requester an initial disclosure concerning the first access request by mail and asked him to confirm his address. No further communication has taken place between the institution and the requester regarding the second access request after the complaint was submitted in June 2022. |
| January 24, 2023 | The requester followed up on the first disclosure regarding the first access request. |
| February 10, 2023 | Second follow-up from the requester about the first disclosure regarding the first access request. |
| July 5, 2023 | The institution contacted the Office of the Information Commissioner to submit its second 6.1 application concerning both access requests. |
First access request
This is the second application for approval to decline to act on this access request. The institution first applied on February 10, 2022. The application was denied in part because the Commissioner concluded that the institution did not show that it had fulfilled its duty to provide assistance.
With respect to this application, the institution indicated that it had suspended regular communication with the requester since his email of August 17, 2022, as it felt that the requester was acting in bad faith with respect to his access to information and privacy requests.
Although the Commissioner accepts that the requester’s email of August 17, 2022, triggered this second application from the institution, she finds it difficult to understand why the institution waited 11 months to submit the application. She also notes that, contrary to its assertion regarding bad faith and the termination of communication, the institution did in fact contact the access requester in November 2022, not to inform him that his email was inappropriate, but rather to tell him that an initial disclosure would be sent to him. The Commissioner notes that, having had another opportunity to provide new information concerning its duty to provide assistance, the institution failed to do so.
Considering that the institution communicated with the requester for purposes other than to terminate communication or to fulfill its duty to assist, the Commissioner concludes that the institution did not convince her that this new application for approval to decline to act on the first access request has merit.
Second access request
As for the second access request, unlike the previous one, this is the first application. However, the institution did not submit any representations enabling the Commissioner to conclude that the duty to provide assistance has been fulfilled.
The Commissioner concludes that the institution did not show that it had fulfilled its duty to provide assistance under subsection 4(2.1) before applying for approval to decline to act on the access request. The application is therefore denied.
Additional comments
[16] That being said, the Commissioner cannot ignore the fact that, in this instance, the requester attempted to negotiate a sum of money in exchange for abandoning the first access request, during the processing of one of the requests for access to personal information. The requester explained that he proposed this as a result of being frustrated and exhausted with the institution’s procedures. He said that he did not think it through and was impulsive at a time when he was tired and frustrated, and that he regrets it.
The Commissioner feels it is necessary to remind the requester that this type of bargaining with institutions in the context of an access request is totally unacceptable and inappropriate. The right of access is a quasi-constitutional right whose importance should not be minimized or abused. The federal government’s access system faces enough challenges and is often criticized. Like institutions, requesters must respect their obligations and the right of access, so as to not jeopardize the credibility of the system. The Commissioner recommends that the requester ensure that he is genuinely and fully interested in receiving a complete response to his access requests. Finally, she encourages the requester to work with the institution to ensure that his access needs are understood and addressed as quickly as possible.
Decision
The institution’s application for approval to decline to act on both access requests is denied.
The institution is required to act on the access requests.