The Yukon’s information and privacy commissioner has given a Yukon government department permission to disregard seven out of 30 access-to-information requests filed by a single person within the span of a year, finding the requests were “systematic.”
Diane McLeod-McKay released her 64-page decision on the case July 31.
It’s believed to be the first decision from the Yukon Information and Privacy Commissioner’s office that deals with section 43 of the territory’s Access to Information and Protection of Privacy Act.
The section allows for public bodies to ask the commissioner to allow them to disregard requests that “would unreasonably interfere with the operations of the public body” due to the “repetitious or systematic nature of the requests” or because the requests are “are frivolous or vexatious.”
According to the decision, the department requested relief from the commissioner under that section on Nov. 9, 2018, after receiving a total of 30 access-to-information requests from a single applicant over the period of a year.
The majority, if not all, of the applicant’s requests appear to be related to the applicant’s employment and probationary period within the department.
The applicant’s name and other identifying details, including his job title, have been redacted from the decision.
The department’s name, the subject of some of the applicant’s requests, are also redacted.
In an interview Aug. 1, McLeod-McKay said she removed those details because they could potentially identify the applicant, and because they were not relevant as to how she arrived to her conclusion.
While copious, the applicant’s requests were not systematic until the 22nd request.
“This Access Request and those that follow demonstrate the Applicant was of the view that the Department was withholding records, altering them prior to release, destroying them, or improperly applying exceptions to them or the information therein,” the decision says.
“This is despite a finding by my Office that the same allegations made by the Applicant in respect of (nine pervious access requests) were unfounded.”
The 22nd to 30th request, which included the seven requests the department wanted to disregard, “all contain information that suggest the Applicant was in fact combing through information received from prior access requests made to the Department or other public bodies to identify other information or records to request,” the decision continues.
Taken with evidence provided by the applicant and the timing of their filings, the requests “demonstrate a pattern of conduct that is regular and deliberate.”
In their submissions, the applicant denied the requests were systematic and that “any burden on the Department was caused by its own doing.”
Among the department’s submissions was that the single employee tasked with processing access-to-information requests had spent approximately 40 per cent of their year just working on the applicant’s requests, excluding the seven the department was seeking to disregard.
That time, if translated to salary, represented about $35,000, the department said, adding that the applicant’s requests made up more than 50 per cent of all access requests received by the department over a redacted timeframe.
“The volume and detail associated with the Applicant’s Access Requests has already had a significant impact on the Department’s resources,” the decision says, adding that processing the seven requests would hinder the department’s ability to process requests from other applicants.
McLeod-McKay ultimately concluded that the department had the right to disregard the seven requests.
In the interview, McLeod-McKay said she wasn’t concerned about public bodies abusing section 43 in order to maliciously withhold information.
“The way I would describe it is, there are limits and where there is what I would describe (as) sort of an abuse of process, then the act actually allows public bodies in very limited and specific circumstances to refuse to process access to information requests, but that’s of course only with commissioner oversight,” she said.
“And even if I determine, let’s say for example, that it did meet one of the circumstances that they’re authorized to disregard, I can still exercise my discretion … We are talking about removing someone’s access to information rights so it should be narrowly interpreted and high thresholds and lots of evidence and good facts.”
The decision also noted that while there was not enough evidence to make a concrete finding, there may have been opportunities for the department’s record manager to work more closely with the applicant on narrowing or clarifying his requests that could have alleviated the situation.
“I think there needs to be a lot more training that needs to occur,” McLeod-McKay said in the interview.
“And that’s one of the things I identified when they reappointed me, is that I needed to focus on the access-to-information system, because the way it’s being administered I think is problematic, there is not enough training being provided. I also think there’s some challenges with records management in government and they need to manage their records more effectively, which would certainly facilitate better access to information — less having to search, less having to go through the records.”
Contact Jackie Hong at firstname.lastname@example.org