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Report 26 - Access to Information Review Task Force
ACCESS TO INFORMATION ACT -
REVIEW OF ADMINISTRATIVE LIMITS
Published: June 2002
Table of Contents
PURPOSE
EXECUTIVE SUMMARY
PRINCIPLES AND OBLIGATIONS OF FREEDOM
OF INFORMATION
NATURE OF LIMITS
ADMINISTRATIVE REASONS FOR REFUSING
ACCESS
SOME DIFFICULTIES EXPERIENCED
HIGHLIGHTS OF COMMONWEALTH LEGISLATION
Purpose
The scope of this paper is to examine the nature of administrative limits
that have been placed on the right of access in FOI legislation in some
other countries.
The purpose of this paper is to provide a framework for issue definition
and for formulating improvements to the Act and its administration.
The administrative principles of Freedom of information legislation and the obligations of government institutions and requestors are summarized.
The nature of administrative limits on the right of access and the reasons for them and the harms they are intended to prevent are extracted from the legislation in Canada and other commonwealth countries.
A summary is presented of some of the difficulties that have been reported in processing certain kinds of requests where the disclosure of information does not result in any of the harms covered by the exemptions to the general right of access provided in the Act. Some examples of these difficulties might be:
- A request is for a very large volume of documents, and requires a substantial diversion of resources,
- Responding to the request will impair the ability of the institution to operate,
- The request is part of a pattern of requests intended to harass the institution.
The paper outlines some of the approaches taken in some other jurisdictions.
Executive summary
1. Most legislation places some limits on the right of access even in cases where no identifiable harm can be connected strictly to the release of the information. Some of the information in question falls outside the right of access because it has already, or is about to enter the public domain (i.e.: museum material, published material, material tabled before parliament), material available for sale, personal information, or trade secrets not belonging to the government.
In such cases the institutions may refuse, or defer access.
2. The right of access to information is generally limited to information in records that actually exist and can be found by experienced employees with a reasonable effort. There is no obligation to create new records with two exceptions. There is an exception made for persons with disabilities; they are to be given access to the record in a form that they can “read”, or given assistance in understanding their content. In Canada, a parallel requirement may also arise where records are not available in the language of the requester. In Canada there is an obligation to create a record where the information resides in machine-readable form and can be created with the means normally available to employees of the institution.
3. There is a requirement that requests clearly identify the information requested and the nature of the records being sought. This is accompanied with an obligation upon the institution to describe in some detail the nature of its record collection and to provide general information about the information contained therein. In some cases, before an institution is entitled to deny a request it is required to give assistance in reformulating the request so as to remove the grounds for refusal.
4. Some limits can also be placed on the effort that an institution is obliged to expend in order to respond to a request. In Australia, New Zealand, Ireland, and the UK, government institutions may deny a request when they can demonstrate substantial and unreasonable interference with their operations or the diversion of their resources. Australia may also refuse a request if it would cause substantial and unreasonable interference with the performance of a minister’s functions. In the UK, there are also provisions for refusing requests the cost incurred in processing them would exceed a certain limit prescribed by regulation.
5. A frivolous and vexatious request can also be denied. There are explicit provisions for this in some FOI legislation, but not in Canada’s ATI Act. In Canada, a refusal on these grounds would have to be based on more general legislation regulating administrative processes. While this language is well established in law, it has practical application only in unusual and particular circumstances. It is difficult to give general guidance for the use of such provisions, because its application depends entirely upon the circumstances surrounding the case.
6. Generally, there are no limits upon the number of requests that can be made by one person, or upon the volume of documents that can be requested without also having to demonstrate some injury to the institution. It is therefore the injury to the institution that provides the grounds for refusal, not the number of requests made or the volume of records involved. Of the legislation examined for this paper, only in the UK can a request be denied if the cost of processing the request exceeds “the appropriate limit” (...of processing costs). For the purpose of this provision, several requests can be considered as one under some circumstances. Thus it appears that, bona fide requesters could still request access to a large volume of records if they are prepared to pay the fees and/or negotiate reasonable time delays with the institution. Similarly, requesters are not limited in the number of requests that they are entitled to make, unless a pattern of harassment is demonstrated. Finally, neither the identity of the requesters nor the intended use of the information is to be a consideration in the decision as to whether or not to grant access. However, the intended or proposed use of the information can be an important consideration in the assessment of fees.
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