Decision pursuant to 6.1, 2022 OIC 38
Date of decision: August 2022
An institution submitted an application to the Information Commissioner, under subsection 6.1(1) of the Access to Information Act, for approval to decline to act on an access to information request. The institution submitted that the request is vexatious, made in bad faith, or constitutes an abuse of the right of access. The institution further submitted that it had met its duty to assist the requester in connection with the request.
The Information Commissioner found that the application was premature, as the institution did not establish that it fulfilled its duty to assist obligations under subsection 4(2.1) of the Act.
The Commissioner denied the application.
The Access Request
The institution received an access to information request for records related to the requester’s previous access to information request.
Subsection 6.1(1) provides that 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 opinion of the head of the institution, the request is vexatious, is made in bad faith or is otherwise an abuse of the right to make a request for access to records. The institution bears the burden of establishing that the request meets the requirements under subsection 6.1(1) of the Act.
The right of access to information to records under the control of a government institution has been recognized as quasi-constitutional in nature (Blood Tribe (Department of Health) v. Canada (Privacy Commissioner), 2006 FCA 334 at para 24; see also: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 at para 40). Bearing this in mind, authorization to decline a request will only be granted if the application is supported by clear and compelling evidence (see, for example: Saskatchewan (Advanced Education) (Re), 2010 CanLII 28547 (SK IPC) at paras 43-47; Northwest Territories (Public Body) (Re), 2017 CanLII 73304).
Institutions, pursuant to subsection 4(2.1), also have an obligation to assist requesters in connection with their requests. As explained in the Guidance and Process documents issued by the Office of the Information Commissioner regarding 6.1 applications, institutions should only seek the Commissioner’s approval to decline to act on an access request after having made every reasonable effort to help the requester with the access request.
Duty to assist
The institution indicated that it fulfilled its duty to assist obligations under subsection 4(2.1) by notifying the requester, “as soon as possible” that they were seeking the approval of the Commissioner to decline to act on their request.
The requester indicated that the institution did not attempt to contact the requester prior to seeking approval to decline to act under subsection 6.1.
The institution’s notice to the requester of its decision to seek approval to decline to act and intention to inform the requester of the outcome of that application are in keeping with their notice obligations under subsection 6.1 (1.3), as opposed to its obligations to make every reasonable effort to help the requester with the request pursuant to subsection 4(2.1).
Although the institution asserted that it was not in a position to provide the requester with any further assistance, it is the Commissioner’s view that they did not cogently explain why no efforts, much less reasonable efforts, could not have been made. This includes explaining why they could not reasonably have communicated with the requester regarding the request or information sought, and / or why responding to the request under the Act without revealing information upon which they were authorized to refuse disclosure was not reasonably possible.
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.
The Commissioner denied the application.