The duty to assist – clarification of the request and collaboration of both parties (6.1-0005)
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 Act). The head of the institution was of the opinion that it had met its duty to assist the requester in connection with this request, and that the request is an abuse of the right of access.
The Commissioner found that the application was premature. The institution took issue with the clarity of the access request, in addition to other arguments, yet failed to seek clarification of the access request from the requester. The Commissioner also elaborated upon several important elements to an application: compelling evidence regarding the request at issue and the general overarching obligations of both parties to clarify the request under ss. 4(2.1) – responsibility of government institutions, and 6 – request for access to record.
The Commissioner denied the application.
Is the application premature?
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 Commission), 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 to act on an access 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).
In addition to the above, in keeping with the spirit of the Act, institutions have an obligation to assist requesters in connection with their requests as per subsection 4(2.1), which states the following:
The head of a government institution shall, without regard to the identity of a person making a request for access to a record under the control of the institution, make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely and, subject to the regulations, provide timely access to the record in the format requested.
As explained in the guidance and process documents issued by the Office of the Information Commissioner (OIC) 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 request. This includes helping requesters clarify their access request or when appropriate, narrow its scope. If the Commissioner is not satisfied that the institution has fulfilled its obligation under subsection 4(2.1), the Commissioner may find an application for approval pursuant to 6.1 to be premature.
Section 6 of the Act requires a requester to provide sufficient detail to enable an experienced employee of the institution to identify the requested record with a reasonable effort. In recognition of the inherent difficulties a requester may have in sufficiently describing records and knowing how institutions may classify those records, institutions have a duty to assist requesters in this regard (subsection 4(2.1)). Other provincial Commissioners have emphasized the obligations of both parties in this respect. Although the Commissioner is not bound by these decisions, they are instructive, particularly in light of section 6 and subsection 4(2.1) of the Act. (See Toronto District School Board (Re), 2015 CanLII 53492 at paras 99 to 101).
An application for approval to decline to act on a request for information under subsection 6.1(1) of the Act does not relieve requesters of their obligations under section 6, nor does it relieve an institution of its obligation under subsection 4(2.1) outlined above. When assessing 6.1 applications, these obligations and the efforts made by the parties are relevant factors to consider whether the application is premature or whether the request constitutes an abuse of the right of access.
When submitting a 6.1 application, institutions ought to provide compelling evidence regarding the access request at issue. Although contextual information may be helpful, it is unlikely to be a determinative factor when deciding whether an application meets the criteria under section 6.1.
The institution advanced multiple arguments that it alleged, collectively, constitute an abuse of the right of access. It relied heavily upon the requester’s behaviour in previous privacy requests and the total number of privacy and access requests to support its 6.1 application. The institution confirmed this had not been an issue with prior access requests, rather, it was concerned that the requester would now follow the same pattern of abusive conduct in the context of access requests that the requester had exhibited in privacy requests.
The requester provided lengthy submissions, denying the institution’s allegations. The requester further submitted that the institution filed a premature 6.1 application by failing in its duty to assist. The requester stated there had been no attempts to clarify the text of the request based on allegations of repetitiveness or lack of clarity prior to submitting a 6.1 application.
In its application, the institution took issue with both the scope and the clarity of the request. Yet, the institution only sought clarification from the requester regarding the scope of the request, to which the requester insisted that the request be processed as written.
The Commissioner explained that despite raising clarity as an issue in its application and seeking to confirm the scope of the request with the requester, at no time did the institution attempt to clarify the substance of the access request with the requester prior to submitting its 6.1 application. The Commissioner found that, while the institution claimed that several portions of the request would require subjective judgements by its Offices of Primary Interest (OPIs) in order to process the request, it never gave the requester the opportunity to clarify the request.
It appeared from the institution’s submission that it did not seek clarification from the requester in light of the requester’s history of refusing to clarify requests. However, the requester suggested that they had cooperated and clarified requests in the past.
Both parties have an obligation to collaborate. The requester has an obligation to provide sufficient clarity to the institution so it may process the request under the Act. If the institution requires further clarification in order to process the access request, it has an obligation in terms of duty to assist, to seek this from the requester. History between the parties does not lessen the institution’s obligation to attempt to clarify the request. The information related to previous privacy requests and past behaviour was not sufficient to be relied upon for a finding in this application.
In light of the importance for both parties to collaborate at the outset of the process, the Commissioner also strongly encouraged the requester to meaningfully work with the institution to find a reasonable way forward in relation to this request, as the request appeared quite broad. Ultimately, however, the Commissioner stated that it remains open to the institution to process the request as it sees fit, in accordance with the Act. It may assess whether the request or portions of it, do not satisfy the requirements of section 6 and cannot be processed, or it may process it and apply available exemptions. Similarly, the Commissioner reminded that nothing in her decision prevents the requester from filing a complaint in accordance with the Act.
The application was dismissed as premature.