Decision pursuant to 6.1, 2021 OIC 20
Date: June 2021
An institution submitted an application to the Information Commissioner for approval to decline to act on a request for information under subsection 6.1(1) of the Access to Information Act. The head of the institution was of the opinion that the request - for all internal correspondence of the institution over a period of seven years - constitutes an abuse of the right of access.
The requester declined to make submissions in relation to this application.
The Commissioner found that the institution met its burden of establishing that the access request is an abuse of the right of access. Specifically, the overbroad scope of the request, in combination with the small size of the institution, its limited resources, and the impact upon the institution’s ability to fulfill its mandate all weigh in favour of finding that the request is an abuse of the right of access.
The Commissioner granted the application.
Did the institution fulfil its duty to assist?
As explained in the Commissioner’s Guidance document, “Seeking the Information Commissioner’s approval to decline to act on an access request,” an institution should only seek approval to decline to act on an access request after having made every reasonable effort to assist the requester with the request, as is required under subsection 4(2.1).
The institution made a number of efforts to communicate with the requester in order to clarify and/or target the request; however, in doing so, this resulted in the requester expanding the scope of the request and otherwise making clear that the requester had no interest in further communicating with the institution regarding the scope or clarity of the request.
The requester claimed in correspondence with the institution that the purpose of the request was to understand its administration and culture. The institution pointed out that this understanding could be gained from a narrower request, and suggested ways in which the request could be tailored to meet that purpose. Despite these numerous attempts to assist the requester in clarifying and/or targeting the request, the requester refused to do so.
The institution’s efforts to clarify and/or target the request, to ensure that the requester would be provided with the information sought while avoiding an undue burden being placed on the institution, were reasonable.
The Commissioner was satisfied that the institution fulfilled its duty to assist obligations under subsection 4(2.1) prior to seeking approval to decline to act on the request.
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. 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.
The institution claimed that the request for all internal correspondence of the institution over a period of seven years constitutes an abuse of the right of access because:
- the request encompasses an inordinately large number of records;
- given the institution’s very small size and limited funding, the processing of this request would
- negatively and unreasonably interfere with its ability to attend to its responsibilities and meaningfully fulfill its legislated mandate; and
- impede its ability to respond to other prospective access requests, so as to interfere with the legitimate rights of other requesters.
The institution applied two different methodologies to estimate the number of records responsive to the request: i) a desktop exercise to estimate the number of emails responsive to the request sent by an average employee per day; and ii) a digital analysis of the institution’s database to determine the volume of emails and attachment.
The first of these methodologies resulted in a conservative estimate of 700,000 email records, without attachments, while the second (which was considered to be more accurate) resulted in an estimate of at least 81 GB of records, equating to more than 5 million pages.
The institution indicated that its has fewer than one full-time equivalent employees to process its access requests. Based on the above estimates, it would take this employee, if dedicated exclusively to reviewing the responsive records based on a rate of less than one minute per page, between 12 and 43 years to complete the review.
This estimate did not factor in the time needed for all employees to identify and retrieve responsive records. These additional resources needed to meaningfully fulfill the request would need to be reallocated from core program areas to an extent that would severely compromise the organization’s ability to fulfill its legislated mandate.
The requester declined to make any submissions as to why the institution should not decline to act on the request, despite repeated invitations by the OIC to do so.
A broad request, generally, does not in itself amount to an abuse of the right of access. However, given the institution’s size and limited resources, the extraordinarily broad request would have long-term negative repercussions on its ability to fulfill its mandate and/or meet its obligations with respect to others seeking access to records under the Act.
As noted in provincial jurisprudence, “[…] All rights come with responsibilities […]. By overburdening a public body, misuse by one person of the right of access can threaten or diminish a legitimate exercise of that same right by others […]. Such abuse also harms the public interest, since it unnecessarily adds to public bodies' costs of complying with the Act. […]" (British Columbia (Children and Family Development) (Re), 2020BCIPC 17 (CanLII), citing Auth. (s.43) 99-01, at p.7)).
A statutory scheme of access is only going to work if common sense and responsible behaviour prevail on both sides. (See decision 6.1-0005 on the OIC’s website).
Taking into consideration all of the above, the Commissioner found that the institution established on a balance of probabilities that the request is an abuse of the right of access.
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.
The Commissioner also noted that that this case emphasizes the importance of good information management, inviting institutions to review “9 Tips for ATIP‐Friendly Email Management from the OIC” to help with the management of emails of business value.