Decision pursuant to 6.1, 2025 OIC 8

Date of decision: February 2025

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. In the institution’s opinion, the access requests constitute an abuse of the right to make a request.

The Commissioner finds that the institution did not establish that the access requests are an abuse of the right to make a request.

The application is denied.

Application

Under subsection 6.1(1) of the Access to Information Act, 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 head of the institution’s opinion, the request is one or more of the following:

• vexatious
• made in bad faith
• an abuse of the right to make a request for access to records.

Institutions may not decline to act on access requests for the sole reason that the requested information was already proactively published under Part 2 of the Act (subsection 6.1(1.1)).

The institution bears the burden of establishing that the access request meets one or more of the requirements under subsection 6.1(1).

If the institution establishes that one or more of the requirements of subsection 6.1(1) apply, the Commissioner must exercise her discretionary power to either grant or refuse the application.

In exercising her discretion, the Commissioner will consider all relevant factors and circumstances, including:

• The quasi-constitutional nature of the right of access;
• The public interest in the records sought;
• Whether the institution met its obligations under subsection 4(2.1) to make every reasonable effort to assist a requester in connection with their request.

Access requests at issue

A-2024-00006:

A-2024-00068:

We are requesting access to all records associated with [the institution]'s response to [the requester’s] access to information request (File No: A-2024-0006) indicating that it will require an extension of time in the amount of 3720 days to respond to 16 of [the requester’s] access to information request items as set out in your letter dated May 27, 2024.

In particular, we request the disclosure of any and all documentary material, regardless of medium or form, that relates in any way to [the institution]'s efforts, reasoning, estimation, calculation or analysis used to assess the required length of time needed to review and provide the corresponding records to the 16 access to information request items that [the institution] has required a 3720 day extension to obtain. Our request includes, but is not limited to, opinions or analyses conducted with respect to such extension. For certainty, our request also includes any and all internal and external correspondence relating to this issue.

According to the institution, the access requests are an abuse of the right to make an access request.

Are the requests 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 abusive or inappropriate manner.

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

In its application, the institution made three main arguments to support the claim that the requests constitute an abuse of the right of access, each of them being potentially sufficient to demonstrate the abuse:

1. the requests would overburden the institution, hinder other requesters’ right of access and unnecessarily increase the costs and time spent by the institution to meet its statutory obligations;
2. the requests are repetitive;
3. the requests are directed towards a purpose other than obtaining documents or information.

1. Burden on the institution and other requesters’ right of access

The institution explained that the initial wording of the first access request was extraordinarily broad in scope and sought access to 29 different categories of records most of which related to the requester’s political risk insurance policy and two legal proceedings related to the policy. The requester also sought access to information about other customers, and the institution’s policies, procedures and other records over a period of approximately twenty years.

The institution explained that it made many suggestions to the requester to reduce the scope of the access request, including the following:

• Using language to describe the requested records that is as specific as possible;
• Minimizing the date range of the requested records;
• Avoiding the phrase “all records related to…”;
• Naming the specific records or specific types of records sought but keeping the list as short as possible;
• If known, naming the person or department that is believed to possess the records, or the corporate function, line of business or project to which the records relate;
• In a multi-part request, avoiding language that would result in overlapping or repetitive sets of records.

The institution also demonstrated that it made specific suggestions to the requester to address the large scope of the request, including the following:

• Item 17 was originally requesting all records related to the requester and another named company. The institution suggested limiting its scope to records relating to these entities in the context of the second legal proceeding.

The institution further explained that it made efforts to satisfy its duty to assist the requester, including the following:

• It advised the requester from the outset that the volume of records requested in the first request is extraordinarily large and the response to some items would be time consuming;
• It advised the requester that it had limited resources available to respond to the first request and noted that time-consuming requests hinder response times to other access to information requests;
• It provided estimates of the number of pages likely to be reviewed based on the scope of the request and updated it as more information became available;
• It invited the requester to continue to further narrow the broad (and often vague) items listed in the first request to shorten the anticipated response time of ten years;
• It provided suggestions for alternate means through which the requester may be able to access the information sought within a shorter timeframe;
• It provided interim releases for the records that the institution could retrieve and process within a reasonable amount of time; and
• It suggested, by way of compromise, that the requester withdraw the remaining items of the first request pending completion of the document production process of the second legal proceeding, which should yield similar records. In the event that the requester’s requests for information were not satisfied in the course of the document production process in the second legal proceeding, the institution invited the requester to submit a new request for access to specific and identifiable records not already in its possession.

Following these efforts, the requester agreed to re-scope the first access request but refused to abandon it entirely. Instead of the 29 items, the final version of the first access request comprised 19 items. The institution explained that it responded to 5 out of these 19 items.

The institution noted that there were 14 remaining items from the first request, which are more extensive than the 5 items answered to date and will require considerably more time and effort to process than those already completed. The institution estimated the 14 remaining items of the first request to involve a review of more than 1 million pages.

The institution also explained that the scope of the first request is large for a number of reasons, including:

• the breadth of information requested which does not always lend itself to specific search terms;
• the period covered by the records which spans twenty years in many instances;
• the volume of separate items requested is high.

The institution argued that the review process is expected to be complex as a number of the records are located on electronic storage devices and involve, at minimum, a review of an estimated 465 GB, as well as the review of at least 75 boxes of hard copy material located in off-site storage.

According to the institution, the breadth of the review also poses logistical, resourcing and technological problems. In particular, there are special software requirements for accessing a large quantity of the electronic records, which the institution does not currently use and for which it will need to obtain access. In general, this data constitutes an estimated 800,000+ pages and is not organized in any way that will allow for efficient processing by the institution.

The institution also mentioned that its access to information team consists of only two senior advisors who also respond to access requests for another institution. In addition to these resources, the institution’s Director, Ethics, Privacy & Information Risk, two junior resources from the Privacy & Information Risk team, the institution Legal Services, and external counsel have all allocated significant amounts of time to managing the first request and time extension, exemption, reasonable search and refusal to process complaints by the requester.

The institution explained that it provided a reasonable estimate of time needed to process the various items within the first request. The estimate was based on the number of records sought, the technical challenges of acquiring the software to access historical records and boxes in off-site storage, and the time needed to process such a large volume of paper and electronic records. According to the institution, responding to the first access request will require approximately 10 years, even with the institution acquiring additional personnel. Otherwise, the length of the time extension would have been approximately doubled.

As to the second request, the institution explained that it had already spent approximately 50 hours working on the file, with approximately 1500 pages of records identified for review (after excluding duplicates and irrelevant retrievals).

The institution argued that to allow access requests from only one party to consume nearly a decade of the institution’s resources is, by definition, an abusive and/or improper use of the access to information process and stated that the Information Commissioner has recognized that there must be a reasonable limit on how much time and effort institutions dedicate to responding to one request. Such an allocation of the institution’s resources will necessarily hinder its ability to review and respond to access requests from other requesters. Moreover, it impacts the institution operationally as resources outside of the access to information team are extensively involved in supporting the response, thereby shifting priorities from other access requests and operational obligations to accommodate requests from a single requester.

2. Repetition

The institution argued that it is an abuse of the right of access to file duplicative and repetitive requests. The institution explained that many of the items of the first request are overlapping and duplicative in nature and that much of the documentation is, or was previously, in the requester’s possession, such as the following:

• documents that were obtained during the document production process of the first legal proceeding; and
• documents that originated from the requester and that were provided to the institution in connection with the policy.

The institution claimed that the abusive nature of the two requests is further underscored by the fact that the requester has alternative channels available pursuant to which it has already obtained much of the requested information. More specifically, the institution argued that the requester obtained some records at issue through the first legal proceeding with the institution, and has an opportunity to request further documents in the document production phase of the second legal proceeding, which was set to happen shortly after the institution submitted the present application.

Finally, the institution argued that while, by itself, it is not necessarily an abuse of the right of access for the requester to seek this information through two separate channels simultaneously, this practice becomes abusive in these particular circumstances, as the two requests are voluminous, cover a twenty-year timeframe in most instances and seek a myriad of different types of records for each category of information sought.

3. Purpose of the requests

Finally, the institution argued that an abuse of the right to make an access request may also occur when the request is directed towards a purpose other than obtaining documents or information. The institution explained that the vast scope of the two access requests is troubling and, when seen in the context of the ongoing second legal proceeding, strongly suggest that the requests are, in significant part, intended to overwhelm the institution’s resources and thereby providing the requester with an advantage in the second legal proceeding.

Discussion

The Commissioner will now examine whether any of the institution’s arguments are sufficiently convincing to conclude that the access requests constitute an abuse of the right of access.

1. Burden on the institution and impact on other requesters’ right of access

Whether an access request would overburden an institution depends on an objective assessment of the facts. The assessment depends on the nature of the access request, the size and type of operations, the work required to act on the access request and the impact on operations. In some cases, acting on an access request that overburdens the institution will interfere with the ability of others to legitimately exercise their right of access. In those instances, the institution must also demonstrate the link between the burden of processing the access request and the interference with others’ right of access.

Having considered all the representations and evidence submitted by the institution and the requester, the Commissioner finds that the institution did not provide sufficient evidence to allow her to conclude that acting on the two access requests would overburden its operations and hinder other requesters’ right of access.

The institution’s contention that the first access request would yield one million pages is not sufficiently supported by evidence. The institution has not explained in a satisfactory manner how it reached that number, nor why the access request would yield that number of records.

Comparatively, in 2024 OIC 62, the Commissioner granted her approval as the institution sufficiently explained how it reached the estimated number of records and why the request would yield as many records as it claimed. The institution was able to provide an estimate for most of the items of the access request, and to explain how that estimate was reached, following an initial search for records. The institution also explained that two items, for example, were particularly broad, as they would encompass all records related to some of the institution’s principal functions and covered a period of 14 years.

In another application in which the Commissioner granted her approval, 2024 OIC 60, the requester made an access request for all records related to neonicotinoids since 1991. The institution explained that neonicotinoids include at least one of six active ingredients (clothianidin, dinotefuran, imidacloprid, acetamiprid, thiacloprid, thiamethoxam) and that it found 15,407 applications linked to at least one of these ingredients. The institution also explained that the 15,407 applications represented 227,375 MB of records, and based on the hypothesis that 1 MB should contain 15 pages, that they would yield 3.4 million pages.

While it is not necessary for an institution to retrieve all responsive records prior to making a 6.1 application to  the Office of the Information Commissioner, the institution must explain, in a convincing manner supported by relevant evidence, how it calculated the volume of records. In the present case, the institution has provided no explanation as to how it reached the estimate of one million pages. That said, the institution did provide some explanation as to why the request is broad: it said that the request covers a period of 20 years and comprises 14 different items. The institution also explained that the request concerns a political risk insurance policy, two legal proceedings, as well as information about other customers. This, however, has not convinced me that the access request would yield the estimate of one million pages. Although the access request spans 20 years, comprises 14 items and concerns a large company, it nevertheless focusses primarily on a single policy and two related legal proceedings. The institution has not explained why this policy and these legal proceedings have generated so many records, which is far from obvious to an outsider.

In its response to the institution’s application, the requester claimed that its requests are specific and targeted and provided item 6 as an example, which is seeking “[a]ll underwriting records with respect to [a specific PRI policy].” The requester explained that “[t]his is a specific and targeted request for a narrow set of documents related to a single insurance policy that is specifically identified.”

The Commissioner agrees with the requester that certain items of the first request are specific and targeted. While the institution claimed that items 4 to 7 “remain exceptionally broad and highly complicated to process,” the institution has not sufficiently explained this point. More specifically, the institution has not sufficiently explained how the items that specifically identify a single insurance policy may result in an exceptionally large volume of records or may be so complex to process that they warrant being labelled an abuse of the right to make an access request. This is contrary to the situation in 2024 OIC 62, where the Commissioner was satisfied by the institution’s arguments and evidence in support of the assertion that specific items of the request were exceptionally broad.

As to the second request, the Commissioner also finds that the institution has not sufficiently explained how it reached the estimate of 1,500 pages, nor why the access request would yield so many records. This estimate strikes her as very high for an access request seeking all records related to a time extension claimed to process an access request. Moreover, mere provision of an estimated number of records is far from sufficient to justify the claim that the access request constitutes an abuse of the right of access.

The Commissioner also finds that the institution did not sufficiently explain how the offices of primary interest (OPIs) and its access to information and privacy (ATIP) office would be affected if required to process the two access requests.

The institution did not provide any information regarding the number of OPIs and/or employees that would be affected by the processing of the access requests, nor did it provide sufficient information regarding the expected work needed to process the requests. The mere assertion by the institution that the review process for the first access request is expected to be complex on the basis that a number of records are located on electronic storage devices and in boxes is not, in and of itself, sufficient evidence. Furthermore, the institution did not demonstrate that it had considered the normal workload of the OPIs, and how searching for, retrieving, and reviewing records, as well as providing recommendations on these records would affect the OPIs’ normal workload and undermine their work objectives.

In contrast, in 2024 OIC 62, the Commissioner granted her approval as the institution sufficiently explained how the OPIs would be affected. The institution explained that one item of the access request, which was seeking “all records related to the interpretation of any guideline, rule, policy, or recommendation,” had the potential to impact the full staffing complement of the institution, given that all employees are routinely required to develop and act upon recommendations in the course of their day-to-day activities. The institution also provided an estimate of the number of hours that would then be required for all of the employees to retrieve these records.

Similarly, in 2024 OIC 60, the Commissioner was satisfied by the institution’s explanation that as neonicotinoids, the subject matter of the request, are the most popular class of insecticides, the OPI responsible for regulating pesticides would be particularly affected.  The institution determined that the access request would impact the work of the majority of this OPI’s employees (around 550 employees). The institution also explained that each OPI employee would have to perform a keyword search in their email account and that 16,000 keywords would have to be used. In addition to this email search, the institution specified that the OPI’s scientific advisors would have to review the records over a significant period of time to determine context, triage sensitive information and flag risks associated with disclosure. The institution argued that retrieving and reviewing the records would require the OPI to reassign a significant portion of its staff, including a significant portion of its experienced scientific advisors, preventing it from fulfilling its regulatory mandate to process pesticide applications and thereby protecting the health of Canadians and the environment. In addition, the introduction of new products to the market and the withdrawal of others could be delayed, which would also have a negative impact on the agricultural industry.

The Commissioner also finds that the institution did not provide sufficient explanation about how the two access requests would affect the operations of its ATIP office. The institution explained that the first access request would affect two junior employees, two senior advisors, one director, its legal services and external counsel. The institution also explained that it would have to acquire additional personnel resources to process the first access request, and that with all of these resources it expects to take approximately 10 years to respond to the first request. Finally, the institution explained that it had already spent 50 hours working on the second access request.

The Commissioner recognizes that 10 years to process one request is very long. That said, it is unclear to her how the institution determined that it would require 10 years to process the first request. The institution provided no information regarding the capacity of its ATIP office or the backlog of access requests it may have. Comparatively, in 2024 OIC 60, the institution provided detailed representations addressing these points. That institution convincingly explained how responding to the access request would affect its already diminished capacity.

As to the second request, the Commissioner finds that spending 50 hours on it is not a sufficient ground to conclude that it would overburden the institution.

Based on the above, the Commissioner concludes that the institution has not demonstrated that acting on the two access requests would overburden operations of the institution.

2. Repetition

The Commissioner turns now to the question of whether the two access requests constitute an abuse of the right of access given their allegedly repetitive nature.

The institution has provided no representations regarding the second access request being repetitive. As to the first access request, the institution argued that the items are overlapping, that much of the documentation is, or was previously, in the requester’s possession and that the requester has alternative means to access the information, such as the document production phase of the second legal proceeding.

In previous decisions (2020 OIC 17, 2021 OIC 30, 2024 OIC 63), the Commissioner found that an access request is vexatious or an abuse of the right to access records when it is repetitive, that is, when no new records are being sought. In the present case, the issue does not appear to be that no new records are being sought. 

In another decision (2024 OIC 64), the Commissioner found that repetitively seeking the same type of exempted information, with no reason to expect that the new access request would yield a different response, is vexatious. Again, the issue in the present case does not seem to be that the requester is repetitively seeking the same type of exempted information.

The present case resembles a case the Commissioner had examined in which she concluded that the requester had made overlapping access requests (2023 OIC 47). Although this was not sufficient to conclude that the access request constituted an abuse of the right of access in and of itself, the Commissioner concluded that it contributed to the request being an abuse. The reason was that the overlap between the access requests increased the burden on the institution, which had to provide the same records on many occasions, without providing any added value to the requester.

In the present case, the institution argued that the items within the first access request overlap. The Commissioner finds that this is not sufficient to conclude that the access request constitutes an abuse of the right of access. Moreover, the Commissioner also finds that it does not contribute to the request being an abuse the way it did in 2023 OIC 47. Even if the items of the first request overlapped, the institution would be under no obligation to provide the same records more than once given that they would all concern the same access request. Thus, the overlap between the items should not increase the burden on the institution.

The institution’s second argument is that much of the documentation is, or was previously, in the requester’s possession either because it was provided by the requester to the institution or because the requester obtained it during the document production phase of the first legal proceeding. In 2022 OIC 35, the Commissioner examined a similar situation:

• Most of the access request concerned records the requester had provided to the institution;
• The rest of the requested records had already been provided to the requester, with the exception of the information that could have been created between the last completed access request and the one for which the Commissioner’s authorization was sought;
• The requester rejected the institution’s proposition to modify the timeframe of the access request to specifically capture the time period between the last completed access request and the one for which the Commissioner’s authorization was sought.

These three elements, taken together, allowed the Commissioner to conclude that the access request constituted an abuse of the right to make a request. The present case differs from the one discussed above in many respects.

First, while some records had been provided to the institution by the requester, this appears to be a marginal part of the access request. The institution did not explain which records exactly had been provided by the requester. That said, the requester recognized, in its response to the institution’s application, that item 7 seeks records provided by the requester.

The wording of item 7 states: “All records provided to [the institution] by [the requester] including …” The requester also recognized that items 5 and 6, which seek underwriting records, may partly seek records provided by the requester. That said, these three elements nevertheless appear to be a marginal part of the access request.

Second, the rest of the requested records had not already been provided to the requester under the Act. While some records may have been provided during the document production phase of the first legal proceeding, this is not equivalent to having the same records provided under the Act. As the requester mentioned, subsection 2(3) of the Act mentions that the Act is intended to complement and not replace existing procedures for access to government information. Thus, the requester may legitimately request the same information under the Act and during any legal proceeding.

Third, it seems like the institution has made no suggestion to the requester to exclude the records that the requester had provided to the institution. In its response to the institution’s application, the requester argued the following:

The institution has not assisted [the requester] in narrowing such request items. The institution is the only party with knowledge of the contents of its underwriting file. To the extent the institution wished [the requester] to narrow the request item pertaining to such records, it was obliged to provide suggestions or options for [the requester] to narrow the description.

This appears to be accurate. In a letter dated May 27, 2024, the institution invited the requester to “continue to refine and narrow its Request, in particular, items 4, 5, 6, 7 on Schedule A, which remain particularly broad and therefore highly complicated to process,” but made no specific suggestion to exclude the records that were provided by the requester.

For these reasons, and in keeping with the approach the Commissioner endorsed in 2022 OIC 35, the institution’s arguments on this point are not enough to establish the finding that the access request constitutes an abuse of the right of access.

Finally, the institution argued that the requester has alternative means of accessing the information, such as the document production phase of the second legal proceeding. As mentioned above, the Act is intended to complement and not replace existing procedures for access to government information. Thus, the requester may legitimately request the same information under the Act and during the second legal proceeding.

Based on the above, the Commissioner concludes that the institution has not shown that the two access requests constitute an abuse of the right of access given their repetitive nature.

3. Purpose of the requests

Finally, the Commissioner turns to the question of the purpose of the two access requests. The institution argued that the broad scope of the requests, when seen in the context of the ongoing second legal proceeding, suggests that they intended to overwhelm the institution’s resources and provide the requester with an advantage in the second legal proceeding.

The institution has not provided any concrete evidence to support its contention that the access requests are intended to overwhelm its resources. Comparatively, in 2024 OIC 69, the Commissioner was convinced by the institution’s argument that the primary purpose of a number of access requests was not to seek information, because it was supported by many communications with the requester and the requester’s representations.

Moreover, as the requester explained, the first access request was made in January 2024, well before the document production phase of the second legal proceeding, which was set to happen in November 2024. The Commissioner finds that the period separating the moment the first access request was made and the moment the second legal proceeding was set to happen suggests that the first access request was not made with the intent to overwhelm the institution during the second legal proceeding. As to the second request, the Commissioner finds that the estimated number of pages (i.e., 1500 pages), which is relatively low, does not suggest that the access request was intended to overwhelm the institution.

Based on the above, the Commissioner concludes that the institution has not shown that the two access requests are directed towards a purpose other than obtaining documents or information.

4. Conclusion

The Commissioner concludes that the institution has not demonstrated that the two access requests constitute an abuse of the right to make a request.

Despite her conclusion, the Commissioner acknowledges that the estimated number of records is high, and for that reason she encourages the two parties to continue their collaboration in an effort to reduce the volume of responsive records. Both parties would benefit by reducing the scope of the access requests: the requester would obtain the records faster and the institution would use less resources for the processing of the access requests. In its communication with the institution, the requester has shown a willingness to reduce the scope of the first access request once the document production phase of the second legal proceeding is done. This appears to be a good way to conciliate the interests of both parties.  

Decision

The institution has not established that the two access requests met one or more of the requirements of subsection 6.1(1).

Therefore, the application is denied.