Formal request for information already received in response to a request not made under the Act –Vexatious, abusive or made in bad faith? (6.1-0002)
An institution made an application to the Information Commissioner for approval to decline to act on an access request under subsection 6.1(1) of the Access to Information Act.
The institution explained that, in response to a request not made under the Act (the “informal request”), it had already disclosed to the same requester some of the information sought in an access request (the “formal request”).
The institution sought the Commissioner’s approval to exclude the informally released records from the scope of the formal access request.
Does the application meet the criteria set out in subsection 6.1(1)?
Subsection 6.1(1) of the Act 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 submits that it received an informal request for information, and forwarded the informally requested information to the requester. The institution subsequently received a formal request by the same requester. The institution alleges that the formal request, which covers a broader timeframe than the informal request, includes a portion of records that were released in response to the informal request. According to the institution, processing the formal request would be, in part, duplicative.
The institution sought the Commissioner’s approval to limit the scope of the formal request by excluding the time period covered by the informal request.
The institution did not explain how or why the records would be duplicates. The Commissioner found that the information sought in the two requests appeared to be different in terms of the breadth of the subject matter and type of record requested. Therefore, it is possible that the formal request would result in a different response record than the record provided for the informal request.
As well, the Commissioner noted that the institution did not provide any details with respect to the informal release. The requester had asked informally for records that had been processed and released in response to an access request made under the Act by another individual a few years earlier. If exemptions had been applied at the time of the original release, the requester could, by submitting a formal request for the informally released information, be seeking a present-day review of the redactions to determine whether more information may be released today.
Finally, the Commissioner noted that the institution’s application does not state which one or more of the criteria listed in subsection 6.1(1) of the Act the institution is relying on to seek the Commissioner’s approval to limit the scope of the formal access request. In addition, the institution did not provide submissions as to how the alleged duplication meets the criteria set out under subsection 6.1(1) of the Act.
The Commissioner found that the institution did not establish on a balance of probabilities that the request, or part of the request, is vexatious, made in bad faith, or an abuse of the right of access under subsection 6.1(1) of the Act.
Was the application complete?
As stated in the OIC’s Guidance document, Seeking the Information Commissioner’s approval to decline to act on an access request, the OIC may decline an application when it does not contain all of the required information and enough detail such that the Commissioner can make an informed decision. Institutions have one opportunity to explain why the Commissioner should or should not grant approval to decline to act on the access request.
The institution did not provide a complete application as it failed to provide the required documents, and, more importantly, it did not provide sufficient submissions and supporting evidence to demonstrate that the access request meets the relevant criteria set out in subsection 6.1(1) of the Act.
The Information Commissioner denied the application and the institution is required to process the request.