Report 26 - Access to Information Review Task Force

ACCESS TO INFORMATION ACT -
REVIEW OF ADMINISTRATIVE LIMITS

Published: June 2002

Robert Jelking

ADMINISTRATIVE REASONS FOR REFUSING ACCESS

This section summarizes the administrative reasons that have been used for refusing to disclose the records requested. In these cases, the injury justifying a refusal results from the processing of the request itself rather than from the release of any information. They are therefore not normally covered by any of the other exemptions to the right of access. They are drawn from the legislation which has been examined, and while they vary in their exact wording from one Act to another, they cover similar ground.

In general, they place a limit on the right of access or provide a reason for refusing in order to protect the effective functioning of the government institution.

1. The request is frivolous.

The dictionary definition of frivolous is …of little value or importance, trifling; trivial; not properly serious or sensible; silly and light minded.

This is a difficult idea to work with largely because it requires some consideration of the intended use of the information by the requester, and the legislation which exists does not require requesters to indicate the purpose of the request as a precondition for being granted access. One example of a frivolous request might be a request for information that the requester already has. Most FOI legislation intends to enhance access to government records and does not allow a government institution to consider the motive of the requester. Proving that a request is frivolous is possible under some circumstances but is almost certainly an onerous task in practice.

2. The request is vexatious

The dictionary definition of vexatious is… giving trouble to, especially in a petty or nagging way; disturbing annoying or irritating.

Note that vexatious refers to the request not the requester even though the conduct of the requester is not entirely irrelevant in considering whether the request itself is vexatious. A pattern of behavior by the requester(s) needs to be established in order to demonstrate that a subsequent request is frivolous or vexatious. Thus a requester would have to be considered to be patently abusing the rights granted by the legislation. The phrase frivolous or vexatious has a well-established track record in striking out legal proceedings. In general, a proceeding can be declared frivolous or vexatious only if no reasonable person could properly treat it as bona fide.

3. Capping the cost of complying with a request

In the UK, an institution may, but is not obligated, to comply with a request if the cost of complying would exceed a limit prescribed by regulation. This unique mechanism looks like two-tiered FOI. One fee structure is applied below an “appropriate limit” and separate provisions can be made to establish another fee structure for requests above the limit. In addition, several requests can be treated as one for the purpose of establishing whether a request would exceed the limit. This approach appears to be aimed at enabling relatively smaller requests to be assessed lower fees. In the Canadian structure, the five hours of search and preparation time that are provided free of charge were also intended to provide relatively low-cost access for small requests. However, the fee schedule that accompanies it covers only search and preparation time and does not cover other more significant costs that may be associated with processing a request.

4. There will be substantial and unreasonable:

• interference in the work of the agency
  
• diversion of resources from other operations
  
• interference with the performance of a minister’s functions

The Australian legislation may best demonstrate this basis for refusal. The operative words here are substantial and unreasonable. It would seem plainly wrong that requests be allowed to inundate an agency and waste public resources. This line of defense is of little use however, when only reasonable or minor interference or disruption occurs, as the legislation could not be put into effect without some use of resources and some impact on the operations of government institutions.

5. The information requested cannot be made available without substantial collation or research.

Taken by itself, this ground for refusal is another form of capping used in the New Zealand legislation. Refusal on these grounds may be effective for dealing with unusual circumstances. It probably needs to be considered in conjunction with the preceding grounds for refusal dealing with substantial and unreasonable interference with the work of the institution or the diversion of resources. It takes the place of the UK provision for an “appropriate limit” on costs. At the moment there is no effective cap placed on the extent to which Canadians can decide to make use of the legislation, the government is therefore expected to fund it to the extent it is necessary to meet the demand. Collation or research includes the effort needed to find the records which contain the information requested as well as the effort needed to assemble them. It does not cover the effort needed to review the records for the purpose of deciding what will be made accessible, or the effort required to consult with others. Review and consultation probably represents at least half of the effort required to process the majority of requests. In the Australian legislation, the effort needed for consultation and reviewing the records may also be considered.

6. The ability of officials to give balanced and impartial advice is impaired.

The advice of officials is already covered with exemptions to the right of access similar to those contained in Canada’s legislation. (advice, accounts of consultations, Cabinet documents, etc.). Thus, it is difficult to conceive what additional material might come under such a provision that is not already covered in the existing legislation.

Some difficulties experienced

This section lists some of the difficulties that some departments report to have experienced in processing some requests within the time frames provided in the Access to Information Act. They are presented here for the record.

The existing and past Information Commissioners have suggested that institutional culture can be an additional cause of delays.

Difficulties in processing certain kinds of requests:

• The request is for a large number of records.
• The request requires the review of a large number of documents, or documents need to be reviewed by experts which are not available.
• The request is vaguely worded.
• The requester is making a large number of requests.
• The request itself or the information requested is frivolous.
• The request is vexatious.
• The requester is abusive.
• A sudden increase in the volume of requests has temporarily overwhelmed the capacity of the institution to respond.
• The records requested are dispersed in several offices or in more than one department.
• The records requested are also required in connection with ongoing or impending litigation.
• Similar requests have not resulted in the release of information that is relevant to the request.

Consequences in processing some requests:

• The legal timeframes cannot be met.
• Time extensions cannot be negotiated to the satisfaction of the requester
• The personnel assigned to process the request are insufficient to keep up with the work
• Processing the request interferes substantially with the work of the agency
• Processing the request incurs substantial costs and greatly exceed the fees that can be collected.
• The requester is using the government institution as a cheap research service for commercial gain.
• Litigants obtain information that they could not otherwise obtain through a normal legal discovery process.

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