Decision pursuant to 6.1, 2021 OIC 24
Date: August 2021
An institution submitted an application to the Information Commissioner for approval to decline to act on four requests for information under section 6.1(1) of the Access to Information Act. The head of the institution was of the opinion that it had met its duty to assist the requester in connection with the requests, and that the requests are an abuse of the right of access because the requester does not have a right of access to the information.
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 requests amount to an abuse of the right of access.
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 attempted to “clarify” the requester’s right of access with them. However, this “clarification” request also served as notice to the requester that the institution was seeking approval to decline to act under section 6.1. The institution did not attempt to clarify the situation before submitting their application to the Information Commissioner to decline to act.
As the institution failed to make every reasonable effort to assist the requester in connection with the requests, it was not in a position to seek the Commissioner’s approval to decline to act under section 6.1.
Do the requests 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 requests constitute an abuse of the right of access.
The term “abuse” is usually understood to mean a misuse or improper use.
Generally, an abuse of the right of access diminishes the rights of other requesters (Crocker v. British Columbia (Information and Privacy Commissioner), 1997 CanLII 4406 (BC SC), “Crocker”).
In Crocker, the request at issue, in conjunction with other requests from the requester and other related individuals, was used as a “weapon of information warfare”. In combination, the requests affected the institution’s ability to perform its other duties and responsibilities.
In the present application, the requester is a Canadian citizen working outside of Canada. The requests were submitted via email. Each request was attached as a separate document absent any branding or letterhead, and signed by the requester. The covering email was submitted using the requester’s professional email account and signature block.
The institution did not take issue with the validity of the requester’s citizenship. Rather, it submitted that the covering email suggested that the requests were made in the requester’s professional capacity, and not in their personal capacity. It took the position that the incidental fact that the individual making the requests in question in their professional capacity is a Canadian citizen would not be sufficient for a foreign‐based organization to have a right of access under the Act. As such, the institution concluded that the requests constitute an abuse of the right of access.
Section 4 of the Act prescribes that a Canadian citizen can request access to information. In this situation, the requester submitted that they are a Canadian citizen and offered evidence to this effect.
The institution is making assumptions, based on the requester’s use of their professional account, about the requester’s motives, i.e., that these requests were submitted in in their professional capacity as an employee of a foreign-based organization.
The institution did not offer any evidence, much less clear and compelling evidence, of the abusive nature of the requests. It did not demonstrate, for example, that the requests were being used as a “weapon of information warfare”, nor that the requests affected the institution’s ability to perform its other duties and responsibilities. Instead, the institution merely asserted a policy argument that the requests are abusive because the requester works for a foreign‐based organization, which does not itself have a direct right of access.
The Commissioner found that the institution did not establish on a balance of probabilities that the requests are an abuse of the right of access.
The Commissioner denied the application.