Decision pursuant to 6.1, 2021 OIC 21
Date: July 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 emails and other records of communication of any employee, during a specified timeframe, that contain a specific phrase - constitutes an abuse of the right of access.
The Commissioner found that the institution not only did not fulfil its duty to assist obligations under subsection 4(2.1) of the Act, but it further failed to establish that the request is an abuse of the right of access. In addition, it was not apparent that the application for approval to decline to act was submitted in a timely manner.
The Commissioner denied 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 asked the requester to narrow the scope of the request to a specific branch or group within the institution because, in the institution’s view, the request as written would be extremely labour intensive. The requester maintained that, while the request may require time and effort and result in the institution deciding to take an extension of time under subsection 9(1), the request is clear and specific and should be processed accordingly. However, the requester agreed to narrow the scope of the request to a specific location.
The institution seemingly disregarded this revision to the scope. The institution did not further communicate with the requester in an effort to assist the requester in connection with the request. Instead, it proceeded to seek approval to decline to act on the request under section 6.1.
As the institution failed to make every reasonable effort to assist the requester in connection with the request, it was not in a position to seek the Commissioner’s approval to decline to act under section 6.1.
Does the request amount to an abuse of the right to make a request for access to records?
Although the institution’s failure to fulfill its duty to assist obligations is a sufficient basis for the Commissioner to reject its application, in the present instance the institution in no way established that the request constitutes an abuse of the right of access.
An "abuse" is usually understood to mean a misuse or improper use. While a request that affects an institution's ability to perform its other duties and responsibilities may in some instances amount to an abuse of the right of access, the evidence adduced in support of such a claim must be clear and compelling.
The institution did not offer any evidence, much less clear and compelling evidence, of the request's impact on its ability to perform its other duties and responsibilities. Instead, the institution merely asserted that the request would unreasonably overburden the institution and interfere with its operations, because individual employees would need to be tasked.
The institution’s submissions did not take into account the narrowed scope of the request and/or explain, much less establish, how the tasking would unreasonably overburden and/or interfere with its operations, particularly given the specificity of the phrase sought.
Timeliness of the application
In addition, it was not apparent that the institution’s subsection 6.1(1) application was submitted “in time”.
As explained in the OIC’s Procedure: Seeking the Information Commissioner’s Approval to Decline to Act on an Access Request, institutions must submit an application for approval to decline to act on an access request within the 30-day period to initially respond to the request, or within a validly taken extension period. Accordingly, applications submitted after these periods would normally not be accepted.
In the present instance, on its face, the institution’s section 6.1 application was submitted more than 30 days after its initial receipt of the request and there is no indication of it having claimed an extension of time. Although, according to the institution, on two occasions it put the request “on hold”, it is not apparent that this was for the purpose of seeking necessary clarifications (i.e., based on section 6), as opposed to merely seeking to try to narrow the scope of the request. Therefore, it is not clear that the institution was authorized to suspend its processing of the request and, in turn, whether its subsection 6.1(1) application appears to be out of time.
The Commissioner denied the application.