Decision pursuant to 6.1, 2020 OIC 17

January 2020

Summary

An institution made an application to the Information Commissioner for approval to decline to act on an access request under subsection 6.1(1) of the Access to Information Act (the Act). The institution alleged that the access request is both vexatious and an abuse of the right to make a request.

The institution explained that the requester was displeased with how the institution handled his affairs and that in the 17 years since, has submitted a total of 893 requests, many of which are closely related.

Is the request vexatious?

The term “vexatious” is not defined in the Act. This word is generally understood to mean with intent to annoy, harass, embarrass or cause discomfort. However, as noted by Justice Stratas in Canada v. Olumide, 2017 FCA 42, 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. Further, when assessing whether an access request is “vexatious” so as to justify an institution declining to act on a request, information commissioners in other Canadian jurisdictions have determined that to be vexatious, the request must rise above being an annoyance or inconvenience to an institution (see Insurance Corporation of British Columbia (Re), [2002] B.C.I.P.C.D. No. 57 (BC OIPC), at para 4). The Commissioner agreed with this interpretation.

The Commissioner explained that while she is not bound by decisions from her provincial counterparts, she found them instructive as they have provided further guidance as to the meaning of vexatious in the context of access rights. In BC Transit, Order F19-44, dated December 10, 2019, former British Columbia Information and Privacy Commissioner David Loukidelis provided a non-exhaustive list of factors to consider whether a request was frivolous or vexatious under its governing legislation. From that decision, the Information Commissioner found the following to be of note:

a frivolous or vexatious request is one that is an abuse of the rights conferred under the Act;
the determination of whether a request is frivolous or vexatious must, in each case, keep in mind the legislative purposes of the Act; and
the fact that one or more requests are repetitive may, alongside other factors, support a finding that a specific request is vexatious.

Similarly, in Edmonton Police Service, Alberta OIPC File #3448 and #3449, the following factors were identified at paragraph 28, which may support a finding that a request is vexatious:

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

Repetitiveness: The institution identified 15 prior access to information requests that they claimed were either duplicative or substantially similar to the access to information request at issue. Upon review, the Commissioner found 11 of these access to information requests to be duplicative or substantially similar.

The Commissioner was not persuaded by the requester’s argument that the repeated access to information requests are necessary because of alleged changes in terminology used by the institution, or that different records are being sought as a result of differences in wording. Based on the evidence before her, the Commissioner was satisfied that all information currently requested is encompassed by at least one previous access to information request submitted by the requester to the institution.

In some cases, a change in circumstances or loss of records already obtained may create a situation where a duplicate or substantially similar request is warranted. The requester did not provide a circumstance that warranted duplicate or substantially similar requests.

The Commissioner found that the institution established on a balance of probabilities that the request is vexatious.

Does the request 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. The volume of access to information requests submitted does not alone substantiate a finding of abuse. However, the volume, along with other factors, may support a finding of abuse of the right of access ( see London Police Services Board (re) (1995), Order M-618 (Ontario IPC)).

In Saskatchewan (Advanced Education) (Re), 2010 CanLII 28547 (SK IPC), former Saskatchewan Information and Privacy Commissioner Gary Dickson identified some of these factors. He found that the repetitive nature of the requests, combined with the cyclical manner in which both access requests and request for review were submitted, amounted to a finding of abuse of process.

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.

The institution claimed that the request amounts to an abuse of the right of access because:

the requester has submitted a large number of requests (893), and over 1000 complaints with the Office of the Information Commissioner;
the requester has demonstrated a pattern of submitting access to information requests for information already received or for which they have been advised that no records exist; and
the requester has demonstrated a pattern of behaviour intended to harass the institution in retribution for the handling of his case.

While the Commissioner did not agree with all of the assertions put forward by the institution, she was satisfied that the institution did demonstrate that the request amounts to an abuse of the right of access in the circumstances of this case. Specifically, she found that the large volume of access to information requests submitted by the requester, the repetitive nature of the 11 requests, particularly despite the institution advising the requester that in some cases no documents exist, and the recurring complaints to the Office of the Information Commissioner of Canada about these requests, amount to an abuse of the right of access.

Result

The Commissioner granted the application. The institution is required to advise the requester of its decision whether to decline to act on the access to information request, and its reasons.