The duty to assist – an important step before an application to decline (6.1-0004)

March 2020

Summary

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 it had met its duty to assist and that the access request is an abuse of the right of access. The requester took the position that the institution should process the access request and indicated a willingness to work with the institution to find a solution.

The Commissioner found that the application was premature. The institution did not satisfy her that, in keeping with its duty to assist, it was unable to find reasonable ways to continue working with the requester in order to process the access request. As a result, the Commissioner did not make a finding on whether the access request is an abuse of the right of access at this time.

The Commissioner denied the application. The institution is required to act on the access request.

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). 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. This includes helping requesters clarify their access request and, when appropriate, narrow its scope. When the Commissioner is not satisfied that the institution has fulfilled its obligation, she may find an application for approval pursuant to section 6.1 to be premature.

In this instance, the institution submitted that the access request was an abuse of the right of access because of its size and complexity. According to the institution’s preliminary searches and analysis, more than 2.3 million emails, among other documents, would be involved in processing the access request. The institution stated that it would take an unquantifiable number of hours to process and would paralyze its access to information office. The institution explained that, in light of this, it had communicated with the requester to discuss narrowing the request.

The institution claimed that it had fulfilled its duty to assist the requester; it tried to clarify the access request and provided the requester with alternative resources for obtaining some of the information. The institution stated that it had also contacted the requester by telephone three days prior to submitting its application for approval to decline to act on the access request and explained the time required to process the access request, given its broad scope.

The requester responded that he wanted the request to be processed, proposed interim disclosures and indicated a willingness to continue working with the institution.

The Commissioner found that some aspects of the interactions between the requester and the institution, and the resulting filing of this application, lacked clarity. The institution and the requester had engaged in some email exchanges. It appeared that the requester may have been willing to narrow the scope of the request.

The Commissioner explained that it was unclear why the institution did not attempt to confirm and/or further clarify the scope of the access request following receipt of the requester’s response, particularly in light of the requester’s explanation about computer problems rendering emails inaccessible.

The Commissioner also noted that it was unclear from the submissions provided what the institution meant when it referred to how it contacted the requester by telephone and “assisted” with the scope of the access request. It was also unclear from these submissions whether the requester remained unwilling to narrow the scope of the access request and whether options to narrow it were actually presented and discussed.

The Commissioner found that it appeared the requester was agreeable to re-scoping part of the access request, and may have been amenable to excluding part of it. Other than a delay in getting the last response from the requester, which was due to computer problems, there is no indication in the record that the requester was unwilling to work with the institution, nor did the institution argue that it was unable to have further discussions with the requester.

As such, in keeping with the spirit of the Act and the duty to assist, the Commissioner found that the institution should pursue its efforts in this regard, and that the application was premature. Accordingly, the Commissioner did not make a finding on whether the access request at issue is an abuse of the right of access at this time.

The Commissioner also strongly encouraged both the institution and the requester to continue to work together to find a reasonable way forward in relation to the access request, which appears to be quite broad. The Commissioner further noted that the requester could surely benefit from the expertise of the institution in finding a more precise formulation for requesting the information sought.

Result

The Commissioner found the institution’s application to be premature. The institution is required to process the access request.

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