Privacy Commissioner - Te Mana Matapono Matatapu

Official Information Act

Submission by the Privacy Commissioner to the Law Commission in relation to a "fine tuning" review of the Official Information Act 1982

CONTENTS

1.0 Introduction
2.0 Reference 1: Constitutional conventions and conduct of public affairs
3.0 Reference 2: Broadly defined requests and requests for large amounts of information
4.0 Reference 3: Time limits
5.0 Reference 4: Ability to charge to recover costs in deciding whether or not to release information
6.0 Reference 5: Transfer of requests
7.0 Reference 6: Refusal of requests
8.0 Reference 7: Compliance with the requirements of Ombudsman
9.0 Reference 8: Order in Council procedure
10.0 Reference 9: Diplomatic documents
APPENDIX 1: Suggested supplementary terms of reference
APPENDIX 2: Submission of 14 June 1994
APPENDIX 3: British Columbia decisions authorising a public body to disregard requests

1.0 Introduction

1.1 The Privacy Act 1993, with its broad application to information handling in both the public and private sectors, must interact with a variety of other laws. Amongst those other laws, the Official Information Act 1982, and its local government equivalent, stand out as being the most important. Therefore I welcome the Law Commission's "fine tuning" review of aspects of the Official Information Act as it may provide an opportunity to enhance the interaction between these laws following three and a half years' experience of the Privacy Act.

1.2 I also welcome the review since it touches upon privacy issues - although that is not the intended focus of most of the terms of reference. I have taken the opportunity to describe and comment on privacy issues where I have observed them.

1.3 The personal information access and correction regime which currently resides in the Privacy Act is largely derived from provisions which formerly appeared in the Official Information Act. In the transition to the Privacy Act the access and correction rights were extended to include the private sector. Many of the provisions that you have under review in respect of the Official Information Act have a direct equivalent in the Privacy Act. Also amendments were made to the Official Information Act to make some grounds for withholding consistent with the Privacy Act. An inference may be drawn from any recommendation to change such provisions, that similar change should follow in the Privacy Act. In many cases, such an inference will be justified. As the Commission is not undertaking a review of the Privacy Act it is desirable that implications for that Act be borne in mind. As you know I am currently reviewing the operation of the Privacy Act after its first 3 years. For these reasons, I have felt it desirable to express opinions on some issues which might at first glance appear to be unrelated to privacy.

1.4 I provided some preliminary comment in June 1994 and this is appended to this submission. Once the review was effectively placed in abeyance I did not devote further resources to it. However, from time to time I have enquired when the project might be resurrected. In late 1996 I suggested that while keeping the review in the nature of "fine tuning", rather than a comprehensive examination, some additional terms of reference might usefully be added to address issues which had arisen since 1993, particularly with the enactment of the Privacy Act. Having had some indication that the review would be recommenced I suggested some possible further terms of reference of a technical "fine tuning" nature in February 1997. These are also appended. In February 1997 I attended the Legal Research Foundation seminar on the Official Information Act in which the Commission's provisional recommendations were re-released together with, for the first time, a brief summary of submissions received.

1.5 In this submission I have started from scratch and provided comment on each of the terms of reference. Appended to this submission is a list of suggested terms of reference touching upon other technical issues. I have deliberately avoided suggesting more radical or substantive terms of reference and have instead tried to keep to the "fine tuning" brief. This submission does not touch upon any of my suggestions for additional terms of reference (except as relevant to existing references) since I yet have no indication as to whether any or all of my suggestions will be the subject of Commission examination.

2.0 Reference 1: Constitutional conventions and conduct of public affairs

2.1 The first term of reference for the review is to:
Examine sections 9(2)(f) and 9(2)(g) of the Official Information Act 1982, in particular the provisions relating to the confidentiality of advice (section 9(2)(f)(iv)) and the free and frank expression of opinion (section(2)(g)(i)), with a view to ascertaining whether it is possible to define more precisely the interests that are to be protected.

Incidental privacy protection for officials

2.2 The provisions under examination are grounds for withholding official information which is the subject of a request. They have no direct equivalent in the Privacy Act. Nor are they designed particularly to protect privacy although sometimes by enabling officials and others to speak freely and frankly, and to communicate confidentially, the privacy of those officials is a consideration as the information conveyed may well concern identifiable individuals and therefore be "personal information" in terms of the information privacy principles.

2.3 Indeed, orthodox interpretation of New Zealand information statutes would seem to be that expressions of personal opinion by an individual amount to information "about" that individual and therefore will be "personal information" in relation to that individual. That of itself does not necessarily mean that the privacy interest will be high and I believe it would be fair to say that the provisions under examination are there primarily to encourage open and robust debate within the higher echelons of public policy making rather than to protect the privacy of the participants in that process.

2.4 However, it may be useful to note that the grounds for protection of "the effective conduct of public affairs", and to a lesser extent "constitutional conventions", may be seen to relate in some manner to matters of privacy. The sections seem to implicity acknowledge the role of the individual in public administration and the vulnerability of the whole process when individuals are affected by the disclosure of official information. That is to say, although in each case it is the large public policy interest which the section seeks to protect, Parliament has appeared to acknowledge that the factors affecting the small personal interests of the participants can influence the achieving of that objective.

2.5 The preceding comment depends upon the assumption that the effective conduct of public affairs as a whole can be influenced by the impact of disclosure of information on individual officials. Protecting, in some way, the sensibilities of those individuals lies at the root of section 9(2)(g). This interest is akin to types of interests recognised in the encompassing notion of "privacy".

2.6 It does not appear to me that privacy arguments push in any particular direction with respect to reform of this section. I note that in some cases the privacy of participants will be enhanced by the existence of this ground for withholding. However, even if this section were to be repealed (a prospect which has not been advanced and which I would not support) the privacy of participants could, in appropriate cases, still arguably be adequately protected through section 9(2)(a) of the Act. However, the absence of section 9(2)(g) would require a new broader approach to be taken to the interpretation of section 9(2)(a).

Office of the Privacy Commissioner

2.7 The Privacy Commissioner is subject to the Official Information Act. I might be considered to be an "official" for the purpose of these provisions. I need to protect the "political neutrality" of my office (the subject of paragraph (f)(iii)) and, on occasion, the advice tendered by me to a Minister may be confidential (paragraph (f)(iv)). In terms of the interest protected by paragraph (g) it is also necessary to have a free and frank expression of opinions within my office and to protect employees from improper pressure or harassment.

2.8 My office, like others, uses contractors and consultants. Their position does not seem totally clear in relation to either paragraphs (f) or (g). It is probably desirable that their position be clarified one way or the other. This issue has already been identified by the Commission and others have already provided comment to you. The issues do not particularly revolve around privacy issues and therefore I will not discuss the matter in detail. However, I have some concern about the proposal to delete the words "or to" in section 9(2)(g)(i) ("by or between or to..."). The deletion of those words would seem to have the effect of removing protection of information provided by consultants, contractors, and members of the public in circumstances to which the provision applies. Although I have few concerns about consultants and contractors who have commercial imperatives for the on-going delivery of robust comment, it would seem possible that individuals unfamiliar with the processes of government might unexpectedly find their opinions released to their discomfort thereby discouraging further participation.

Harassment of non-officials

2.9 Consideration should be given to modifying the section to enable the protection of individuals who may be the subject of harassment if they are identified in information released. This would extend the protection that is accorded officials and others in the service of the Crown. In making this suggestion I wish to make several things plain:
 the protection in section 6(d) enabling the withholding of information the release of which would be likely to "endanger the safety of any person" is not the same as a risk of harassment. Although harassment can sometimes give rise to a fear of violence this is not always a component of it.
I do not suggest that a perceived risk of harassment should always lead to information being withheld. The withholding must be "necessary" to protect the individual from harassment. Furthermore, the information would nonetheless be released where there is a countervailing public interest favouring disclosure which outweighs the need for protection.
I am interested in protecting individuals from harassment - I have no concerns for corporate bodies.

2.10 This is very much a privacy issue. The government is the custodian of personal information. It collects the information from individuals, or obtains it from third parties, for particular purposes. Use for those purposes does not usually cause major privacy problems. However problems can arise when the information is used or released for incompatible or unanticipated purposes such as placing it in the hands of a person who will use it to harass the individual. However, section 9(2)(a), which relates to the privacy of individuals, does not really get to the heart of the harassment issue.

2.11 It might well be argued that my suggestion does not fit comfortably in a provision directed towards the need to maintain the "effective conduct of public affairs". I concede that sometimes the protection of individuals named in documents will have little to do with public affairs. However, in general I think it does fit as citizens need to be confident that dealing with government agencies is not going to rebound on them at some later stage through harassment by third parties.

2.12 I note that the Commission's provisional recommendations (February 1997) propose locating present subparagraph (g)(ii) into a separate paragraph since it "is not directly concerned with the subject matter of other paragraphs". My suggestion could fit quite well with separating out that paragraph.

Identity of requester - likelihood of harassment

2.13 I will digress at this point to suggest that one might identify the likelihood of harassment sometimes from the identity of the requester or the circumstances surrounding the request. Although some classes of information might be thought capable of attracting harassment regardless of the requester, I expect that in many cases it is the nature of the request that gives rise to a suspicion of harassment. Giving the name of the doctor who carried out a termination of pregnancy to a medical researcher may not give rise to the same suspicion that a request by an anti-abortion group might. In this context, and generally in some other contexts, I would question the often expressed view that release of information to one requester must always be judged in a manner which ignores the identity of the requester or the purpose of the request. From my experience in consultations it is these factors which most often define the public interest elements which need to be weighed. While in many cases the release to one requester is appropriately treated as if request to the world at large, I believe that variation in approach should be possible within the mechanisms of the Act.

2.14 If appropriate, a new approach would be facilitated by the inclusion of a mechanism for imposing enforceable conditions on the release of information in some circumstances. A straightforward example outside the context of harassment would be where a family member requests a personnel record, or an extract from a personnel record, in relation to, say, a deceased serviceman. This request for personal information raises privacy issues but it does, to me, seem absurd to judge that request no more favourably than a request made by any other person. Similarly, I do not believe it is sensible to conclude that if that file were to be released to that family member that it therefore follows that it should also be released to anybody else who might wish to ask for it. I have already suggested that an additional term of reference for review ought to be whether a more explicit and enforceable mechanism should be adopted for release of information on conditions. In those circumstances the identity of the requester is likely to be a key determinant to making the information available. Conditions may be required to prevent foreseeable misuse which otherwise could only be addressed by withholding the information.

3.0 Reference 2: Broadly defined requests and requests for large amounts of information

3.1 The second term of reference is to:
Examine the adequacy of section 12(2) and 18(f) of the Act with particular reference to broadly defined requests and requests for large amounts of information.

3.2 Section 12(2) provides in relation to requests that: The official information requested shall be specified with due particularity in the request.

3.3 Section 18(f) provides as a reason for a refusal of a request: That the information requested cannot be made available without substantial collation or research.

Privacy Act approach

3.4 There is no direct equivalent to either provision in the Privacy Act. However, some related provisions have a similar, although not identical, effect in relation to access to personal information. First, the right of access to information contained in information privacy principle 6 is stated to apply to: personal information held in such a way that it can readily be retrieved.

3.5 The right of access contained in principle 6 is subject to the provisions of Parts IV and V of the Act setting out good reasons for refusing access and procedural provisions. Under Part IV an agency may refuse a request for access if the information requested is not "readily retrievable" or "does not exist or cannot be found".

3.6 There is no equivalent of the "substantial collation or research" ground. Although not directly equating, a provision directed towards a similar concern allows agencies to make information available in a way other than the way preferred by the requester where to do otherwise would "impair efficient administration". This enables cost to be considered in some cases.

3.7 Also note the definition of "personal information". This is defined in the Privacy Act to mean "information about an identifiable individual...". When compared with the vast range of "official information" the linking of information to an individual (identified normally by name) is a step towards specifying a request with some degree of "particularity". However it is easy to imagine cases where simply identifying the subject by name will not amount to specifying a request with due particularlity.

3.8 It may be theoretically possible for a large problem to arise under the Privacy Act in relation to broadly defined requests and requests for large amounts of information given the omission of a requirement to frame requests "with due particularity" and to allow refusal of a request where that would require "substantial collation or research". However, that has not yet been my experience of the personal information access regime. It is certainly the case that some individuals do not frame their requests with the degree of particularity that would ease agencies' compliance costs in retrieving the information. It is also the case that some requests require some considerable collation. Requests for information held only in the memories of individuals raise particular difficulties. In the review of the Privacy Act that I will be conducting this year I will examine whether there are better administrative provisions that could be allowed for in the Act to address that problem without diminishing the important access rights. The solution, if change is warranted, which might fit the Privacy Act may differ to that designed for the Official Information Act regime.

Overseas approaches

3.9 Nonetheless, I have noted some models which appear in some overseas statutes which mix both "official information" and "personal information" access requests which may be instructive.

3.10 In both British Columbia and Alberta there is an Information and Privacy Commissioner. That Commissioner has jurisdiction over the provincial public sector and is the review body for both personal information access requests (as carried out by the Privacy Commissioner in New Zealand) and official information requests (the Ombudsman's function in the New Zealand context). Although the powers granted to these Commissioners, that I refer to below, are not specifically directed towards broadly defined requests and requests for large amounts of information, they do relate to the sort of concerns to which this term of reference is directed.

3.11 Section 43 of the Freedom of Information and Protection of Privacy Act (British Columbia) states:

Power to authorise a public body to disregard requests.

43. If the head of a body asks, the Commissioner may authorise the public body to disregard requests under section 5 that, because of their repetitious or systematic nature, would unreasonably interfere with the operations of the public body.

3.12 The Freedom of Information and Protection of Privacy Act of Alberta, which was enacted after the British Columbia statute, provides in section 53:

Power to authorise a public body to disregard requests

53. If the head of a public body asks, the Commissioner might authorise the public body to disregard requests under section 7(1) that, because of their repetitious or systematic nature, would unreasonably interfere with the operations of the public body or amounted to abuse of the right to access.

3.13 You will note that Alberta enables the Commissioner to authorise a public body to disregard repetitious or systematic requests where they amount to an "abuse of the right to access" in addition to the alternative ground for authorisation, which appears in the British Columbia statute, which is where such a request "would unreasonably interfere with the operations of the public body". It therefore attempts not only to consider the pragmatic effect of such a pattern of requests but also allows their genuineness to be considered.

3.14 I append several of the decisions that the British Columbia Information and Privacy Commissioner has given. I raise the possibility of such a power in order to invite consideration of alternative means to deal with broadly defined requests, requests for large amounts of information and related problems such as systematic or repetitious requests. Each can cause significant problems and may undermine the workability of, and respect for, a freedom of information law. So far discussion in terms of addressing broadly defined requests and requests for large amounts of information have generally been considered in terms of:

administrative provisions in the Act addressing how a request must be framed or may be handled;
the grounds for withholding information or refusing to collate and supply it; whether the true cost can be fully recovered.

3.15 There may be an additional mechanism to deal with the problems, namely in exceptional cases to allow an application (to an Information Commissioner in the Canadian context or the Ombudsman in the New Zealand context) for a discretion to treat that exceptional case in a different way. In the case of repetitious or systematic requests which "unreasonably interfere" with the operations of an agency, or which "amount to an abuse of the right to access" the Canadian response has been to authorise a body to disregard requests. Alternatives might include allowing the Ombudsman to determine that requests are able to be disregarded until a precisely defined request (perhaps to the satisfaction of the Ombudsman) is received, or to allow a deposit to be taken to cover the anticipated extraordinary costs.

3.16 The proposal has some similarities in respect of the law concerning vexatious litigants. When declaring a litigant vexatious, a court may require that that person must apply to the court before issuing any further proceedings. Perhaps the suggested power could be supplemented by a further requirement that the Ombudsman can direct the individual to lodge no further Official Information Act requests during a period except with permission of the Ombudsman. This would be particularly relevant where the Ombudsman had prohibited an individual or organisation from lodging systematic, repetitious or ill defined requests to a particular agency, but was concerned that an obsessive requester might transfer his or her attentions to another agency which was either unaware of the Ombudsman's determination or to which the determination did not apply. Under that scenario the Ombudsman could authorise a named agency to disregard further requests from an individual or organisation (or perhaps requests of a particular type) and issue a prohibition on the named individual from lodging requests elsewhere except through the Ombudsman's office. This constraint goes beyond the authorisation to disregard requests and would not be an essential feature of such a regime. However, it may be a useful power to vest in the Ombudsman nonetheless.

Large amounts of personal information

3.17 The second term of reference requires consideration of "requests for large amounts of information". The comments thus far have focused upon the burden to the agency in processing such requests. However, where the request contains personal information there is also a special privacy concern. Release of large amounts of personal information by government agencies poses a privacy risk. Typically, the information is being sought for purposes other than that for which it was obtained. Also release under the Official Information Act may not have been contemplated by the individuals concerned and any disclosure will be likely made without reference to those people. Since the government is the repository of vast amounts of personal information which could not otherwise be obtained the risk is compounded. Much government information is obtained through statutory authority and therefore the source, whether it be the individual concerned or a third party, has no choice but to provide the data.

3.18 Supply of large amounts of information is not always an expensive or difficult proposition. If the information is stored in a computer it may be possible to print the information out relatively cheaply or simply provide it on computer disk. Therefore, the privacy risk is compounded by the fact that the departmental reluctance to supply vast quantities of personal information directly from files dissipates when the officials can simply hand over a computer disk. It would, for example, probably not be a hugely difficult or expensive exercise to supply information touching upon all adult New Zealanders through supply of data on computer tape from, say, the electoral roll or the motor vehicle register. Departments might even find it cheaper to supply complete records than to select or isolate information requested.

3.19 I do have significant concerns about the supply of large quantities of personal information. Even if the administrative convenience and cost issues are overcome, there remains a significant privacy concern where the release of information in large quantities concerns personal information.

4.0 Reference 3: Time limits

4.1 The third term of reference is to:

Consider the appropriateness of the time limits set in sections 15(1) and 29A(1) of the Act.

4.2 Section 15(1) imposes time limits on making of decisions on requests, the transfer of requests, and the making available of information. Section 29A(1), on the other hand, imposes time limits for complying with requirements of the Ombudsman on a review. Both subsections have an equivalent in the Privacy Act. I deal with each in turn.

Section 15(1)

4.3 Section 15(1) requires agencies to whom an Official Information Act request is made to deal with that "as soon as reasonably practicable" and in accordance with certain statutory deadlines. The most important basic requirement is that a request should normally be dealt with within 20 working days. However, there is also a 10 working day time limit for transfer of requests, a time limit for the making of decisions on requests, and a procedure for extending time limits. The equivalent provision in the Privacy Act is section 40(1). There are similar provisions for extension of time limits and transfer of requests.

4.4 The question is whether the existing time limits are "appropriate". Any change to these time limits may raise an expectation that similar time limits in the Privacy Act may warrant alteration. That is not necessarily the case.

4.5 I believe there is no case for lengthening the time limits that have already been set. I do not believe the time limits are excessively tight in either case. When longer is required to reach a decision the limits can be extended in suitable cases. Instead, I think examination should be directed towards whether the case is yet made out for shortening the time limits.

4.6 In this context, I would like to note the comments of the Australian Law Reform Commission in a review of the Australian Freedom of Information Act 1982. It stated in respect of time limits of standard requests that:

For the past nine years, the time limit for processing FOI requests has been 30 days. It has been suggested that recent advances in information technology and records management mean that it should be now easier for agencies to identify and retrieve information and that, consequently, the time limit for processing a request should be reduced. The review agrees that it is reasonable to expect agencies to take advantage of technological developments to improve their FOI administration. However, it considers that it would be premature to reduce the 30 day period immediately because some agencies do not yet have the facilities to store all documents electronically. Instead, it recommends that in three years the time limit should be reduced to 14 days.

It was proposed that agencies should use the 3 years to adapt and improve their practices in readiness for the new time limit.

4.7 In principle, a case can be made for the time limits to be progressively reduced if access to information really is to be improved over the years rather than remain static with what was acceptable in 1982 (or 1987 or 1993). However, I am not sure that the time is ripe for significantly dropping the time limits to the extent proposed (but not yet implemented) in Australia. I remain somewhat sceptical as to whether technological developments are yet at a stage to significantly enhance the ability to make most information available more quickly. Technology is certainly moving in that direction and access rights could be enhanced in due course to take account of that. Where agencies hold records in computerised form, or some other readily accessible form, they should be making information promptly available and not awaiting the end of the 20-working day limit. Certainly, the law is drafted in such a way that their duty is to make the information available "as soon as reasonably practicable" or "without undue delay" and this will often be sooner than 20 working days. It is of concern that information which does not need collation and which is readily available should be withheld. Perhaps some onus could fall on the agency to show that more than 10 days is as soon as practicable.

4.8 If the time limits were significantly reduced in a premature fashion it might lead to more extension of time limits. This in itself may in some cases slow the making available of information. It might also mean that if time limits are more frequently missed the law itself will be brought into disrepute. These possible detriments need to be set against the advantages in sending a message that more prompt compliance is now expected in standard cases.

4.9 If a reduction in the time limits was to be proposed I think this should be accompanied by a delayed implementation of a year (or if a drastic shortening is anticipated, 3 years as proposed in Australia).

4.10 The matter of time limits will be considered in the review of the Privacy Act. I have yet to examine that issue carefully in depth and take submissions on the subject, but my tentative view is that it may be too soon, after only three and a half years of the Privacy Act, to start tightening time limits for compliance in the private sector at least. Perhaps personal information requests more often involve identifying personal information with documents than will occur with Official Information Act requests. Whether the case is stronger in respect of public sector bodies who have had a similar law to deal with for at least nine, and in some cases 15, years remains an open question. However, set against this is the desirability of a simplified law with seamless application across the public and private sectors. Although more may be expected from the public sector given its longer experience, the case for consistency of standards may well be compelling.

Section 29A(1)

4.11 Under section 29A(1) the Ombudsman can, during the course of an investigation, require agencies to furnish or produce information or documents and the agencies are required to deal with such requests "as soon as practicable" and in no case later than 20 working days. A similar provision exists in section 92 of the Privacy Act.

4.12 There may well be scope for improving this provision with a view to enhancing the speediness of complaints resolution. However, there is a need to avoid undermining the rights of agencies or imposing undue compliance cost. One risk of the existing provision is that it can be used by recalcitrant agencies to spin out proceedings for a minimum of 20 working days but in many cases for far longer than that. A recalcitrant agency may, for example, fail to deliver documents "as soon as reasonably practicable" and instead await the full 20 working days. Following the expiry of the period, except in circumstances of some importance, such agencies can count on getting away with further delay notwithstanding that they might fall short of the requirements of the law. In this context it should be noted that no automatic penalty is visited upon an agency by failure to meet such a time limit (although adverse comment exists as a possible, if remote, sanction). Having received documents during or after the prescribed period, it is quite possible that the Ombudsman may need to seek additional documents from an agency if a response has been incomplete or the request to the agency has not framed broadly enough. Another 20 working days may have to be allowed.

4.13 It may be desirable for a shorter period to be substituted for 20 working days, such as 15 working days. I would not advocate any shorter than this for although urgency may suggest more rapid action in some cases, the general balance of convenience should permit a reasonable period for compliance with a request. It should be remembered that such requests from the Ombudsman do not come "out of the blue". They follow through from requests that have already been made by the individual concerned. There should be little difficulty in most cases for agencies which have already complied with the law to lay their hands upon the requested documents. They ought to have been assembled in order to consider the individual request in any case.

4.14 As an alternative, or as a supplement, to a proposal to reduce the general period from 20 to 15 working days, consideration could be given to, say:

enabling the Ombudsman to require documents within, say, 10 working days, "in cases of urgency";
for the Ombudsman to make requests specifying a shorter time limit, not shorter than 10 working days, for a supplementary or clarifying request; or
to drop the 20 working day limit altogether, leave the obligation generally as being "as soon as reasonably practicable", and allow the Ombudsman to specify a period for each such demand (with the Ombudsman developing his own processes as to what will be the normal period allowed and the circumstances in which compliance within a shorter time limit will be required)
placing an onus on agencies in appropriate cases to show reasons why supplying the information within a shorter period is impracticable.

Urgent requests

4.15 I have earlier suggested to the Commission that it might consider amending its terms of reference to:

Consider whether section 12(3) of the Act should be supplemented to make it clear what must be done when a requester substantiates a request for urgency, and in particular, whether there ought to be an obligation on organisations to make reasonable endeavours to treat such a request urgently.

4.16 Both section 12(3) of the Act, and section 37 of the Privacy Act, indicate that if a requester asks that his or her request be treated as urgent, that that requester must give reasons why the request should be so treated. However, neither Act spells out what is to happen where a request has been identified as urgent. Neither Act imposes more restricted time limits. Neither Act indicates that any consequences will be visited upon an agency where the regular time limits are missed even for an urgent request.

4.17 Failure to spell out the consequences of labelling a request "urgent" is probably less profound in respect of the Privacy Act than for requests under the Official Information Act. If an Official Information Act request is not delivered in a timely fashion, the most that will happen on review is that the documents ultimately are required to be handed over. Under the Privacy Act regime this also will ultimately happen but the Complaints Review Tribunal might also award damages for any harm suffered through "an interference with the privacy of an individual". It might therefore be possible for the individual requester in due course to receive both the information to which he or she was entitled together with damages caused by the delay in supplying it. In cases of urgency it would presumably be more straightforward for an individual to show damage and more difficult for the agency concerned to show it mitigated the damage given that it knew that the request was truly urgent.

4.18 I imagine that there would be disadvantages in too precisely spelling out the consequences of identifying a request as urgent. For instance, it may be inappropriate to simply substitute a 10-working day time limit in place of the 20-working day time limit when the urgency of the case may require same day action. If the regime for dealing with urgent requests was made too rigid it might encourage false claims of urgency to be placed on the "fast track". On the other hand, it seems unsatisfactory for section 12(2) and the equivalent Privacy Act provision to set up a process for identifying urgent requests and then to remain silent on how those must be dealt with.

4.19 My suggestion is that section 12(3) of the Act should make it clear that in cases where a request for urgency has been substantiated, an organisation is obliged to make reasonable endeavours to process the request with priority. In terms of review by the Ombudsman this would give scope for considering whether "reasonable endeavours" were undertaken. It terms of the Act as a code, it makes clear what is intended to happen when a requester asks for a request to be dealt with urgently. However, the suggested approach avoids the problem of creating arbitrary deadlines being placed on urgent requests which might create as many problems as it solves. Perhaps an onus could be placed on agencies to show on review that the information was supplied "as soon as practicable".

5.0 Reference 4: Ability to charge to recover costs in deciding whether or not to release information

5.1 The fourth term of reference is to: Consider whether there should be an ability under section 15 of the Act to charge for time spent and expenses incurred in deciding whether or not to release information.

5.2 Section 15 of the Act has an equivalent in section 35 of the Privacy Act. Accordingly, if the Commission were to recommend change the same issues would need to be addressed in the Privacy Act. It would probably be desirable to have identical wording of the statutory provisions.

5.3 I note that the Law Commission's provisional recommendations (February 1997) indicate a preference for the status quo, that is that departments should not be able to charge for time spent and expenses incurred in deciding what information to release. Although there may be room for improvement on the existing statutory wording to improve clarity, I would tend to support retention of the current approach whereby no charge can be made for such costs.

5.4 It must be acknowledged that there is some cost on agencies in deciding what information to withhold and what information to release. This cannot be avoided but I believe it probably makes more sense for those costs to be borne by the agencies concerned than to be loaded on to individual requesters. The incentive will remain with the agency or department to carry out those exercises in an efficient and cost effective way. If all such costs were loaded on to requesters it would be possible for agencies to seek to create barriers to access. It would also be difficult to charge the cost to a requester, and to recover that charge, in cases where information is not made available. Any proposal to expand the ability of agencies to charge for information would undermine the democratic objectives of the Act and fail to recognise that freedom of information is one of the costs of public administration.

5.5 In terms of the Privacy Act equivalent, it does seem to me that in most cases the costs are relatively minor compared with, for example, the costs of making information and documentation actually available (the cost of which can be recovered in the private sector). For many agencies requests are relatively infrequent. Where requests, and the consequent deliberation on those requests, is frequent it is likely that handling of personal information is a significant feature of that industry's business and therefore allowance should be made for the costs of dealing appropriately with the information entrusted to the industry's care.

5.6 Notwithstanding the comment just made, I would of course wish to emphasise that everything possible should be done to enable agencies to keep the amount of time spent processing access requests to a reasonable level depending upon the nature of the department or business. Charging for time spent may not be the only, or even most effective, response to such issues. Law reform exercises, such as the one you are currently engaged in, play a valuable role in attempting to keep the law current, precise, and clearly expressed so as to make it easier to work with. The use of guidelines as to how general classes of requests might suitably be dealt with are also of assistance, and I particularly commend the Ombudsman's practice guidelines in this context. Review authorities, such as the Ombudsman and myself, have an obligation to make agencies aware of the sort of approaches that we are taking to reviews of requests. Both the Ombudsman and my Office issue case notes.

5.7 Perhaps if more is needed to be done in the Official Information Act area there may be a case to consider the functions formerly conferred upon the Information Authority. Elsewhere I suggest reconsidering whether an Information Authority or some such body is desirable in the current environment. It may well be that a body of that sort, may enable advice to be given to public sector bodies so as to enable them to minimise some of the time spent on deciding what information to release in difficult cases. Clearly there are a variety of responses to the issue which do not necessarily involve the levying of charges, which some would believe would be intended as a crude means to establish a financial barrier as a disincentive to the exercise of access rights.

6.0 Reference 5: Transfer of requests

6.1 The fifth term of reference is to:

Consider the appropriateness of the rules set out in sections 15(4) and (5) of the Act.

6.2 Sections 15(4) and (5) of the Act make clear that the permanent head of department, or an authorised officer or employer, is to take the decision to transfer any Official Information Act request and to make clear that the responsible Minister can be consulted in respect of the proposal to transfer a request. The Commission in its provisional recommendations (February 1997) recommends the repeal of the two subsections.

6.3 I have no objection to the repeal of these provisions. Sections 15(4) and (5) of the Act have an equivalent in sections 40(3) and (4) of the Privacy Act. If there is a desire to spell out such matters I wonder whether the Ombudsman might wish to issue practice guidelines to fill the void following repeal or to substitute something better in place of the repealed sections? Although I expect that many departments do not need any such direction it may be that the issues which motivated the Danks Committee to suggest such provision may nonetheless warrant being set out in some authoritative, but not binding, form.

6.4 However, I might add in the context of transfer of requests a suggestion that the Commission consider whether the procedure established in section 14 of the Act should be amended so that a department is prohibited from transferring a request in circumstances where it has good reason to believe that the individual does not wish the request to be transferred. If the law was to be so modified the change would need to be accompanied with an obligation to promptly notify the requester that the request will need to be resubmitted to the correct agency. This would address the privacy issue which occasionally arises whereby an individual deliberately chooses to ask one agency for information knowing that another agency has the same information but not wishing it to be known to that second agency that the request is being made. An example would be where the requester is an employee of an agency and fears that he or she might be labelled a "trouble-maker" if known to be seeking out information about the activities of his or her own employer.

7.0 Reference 6: Refusal of requests

7.1 The sixth term of reference is to: Consider whether some or all of the grounds for refusal set out in section 18(d) - (f) of the Act should apply in relation to requests for personal information.

7.2 In the Law Commission's provisional recommendations (February 1997) the Commission notes:

The three reasons in section 18(d),(e) and (f) should not be applied to personal information. For consistency the Privacy Act provisions should be aligned by the repeal of section 29(2)(b). (Paragraph (a) could also be repealed since it is redundant, repeating a requirement of principle 6(1).) An alternative and probably preferable approach would be to replace the requirement of "ready retrievability" of personal information in section 24(1)(b) by the general requirements of paragraphs (e) and (f). That approach should also apply to the Privacy Act 1993.

7.3 In summarising the consultation on that provisional recommendation it is stated in the Commission's provisional recommendations (February 1997) that: There were inconsistencies between departments as to whether the reasons in section 18(d) - (f) should be applied to personal information. Nor was there agreement as to the appropriateness of retaining the requirement of ready retrievability of personal information either in section 24(1)(b) of the Official Information Act or under the Privacy Act 1993. Some felt that this requirement added nothing to section 18(e) and (f).

7.4 Although the provisional recommendation is dated February 1997 I believe this simply relates to the time the document was updated to include a summary of submissions made preparatory to distribution of the Legal Research Foundation seminars. I understand that the provisional recommendation is that that the Commission circulated in December 1993 and on which you have had my comments in 1994. Those 1994 comments also touched upon the more detailed discussion appearing in the draft report you also circulated at that time. My 1994 submission is attached to this document and you will see that I took issue with some of the analysis and recommendations.

7.5 It may be noted that the term of reference is ambiguous. Any person could apply under the Official Information Act for official information which might include personal information. However, I understand that the reference is not intended to be taken in that broad sense and the Law Commission has not so treated it. Instead, the phrase "requests for personal information" is taken to mean requests for personal information which are made by the person to whom that information relates. Most such requests are handled under the Privacy Act which deal with requests by living individuals for information held about themselves. However, the Official Information Act continues to provide special personal access rights in respect of personal information held about bodies corporate. These matters are dealt with under Part IV of the Official Information Act.

7.6 The access rights granted to bodies corporate are akin to the special access rights given to individuals but they have remained in the Official Information Act as it is perceived that artificial entities do not truly possess privacy rights or interests. They do possess special needs, but these are in part more akin to property rights and rights to commercial confidentiality.

7.7 Greater rights of access to personal information exist for the person concerned than exist generally under the Act for third parties. In so far as Parliament has shown its intention to continue this distinction in respect of bodies corporate, there would seem to be a good case in limiting the grounds for withholding to those which would be seen as appropriate for a personal access request under the Privacy Act (although there may be a case for departing from that if a distinction can be observed between bodies corporate and natural individuals). It is true that there is no equivalent of paragraphs (d), (e) and (f) of the Act in the grounds for withholding information under the Privacy Act. Prima facie there would appear to be good reason therefore to consider deleting those grounds for withholding.

7.8 I have no objection to deletion of paragraphs (d) and (f) of section 18 in order to more closely align the provisions with the Privacy Act. However, as the repeal of those sections would also have the effect of removing them as reasons under Part II of the Act, it may be that a more appropriate way of achieving consistency with the Privacy Act is to simply amend section 27(1) of the Act by removing reference to those sections as being available to refuse requests for corporate personal information.

7.9 I am a little concerned about the proposal to remove the application of section 18(e) to such requests since the Commission's provisional recommendations would, in seeking to align those provisions with the Privacy Act, then require a follow up amendment to the Privacy Act to repeal section 29(2)(b) of the Privacy Act and possibly also section 29(2)(a). Those issues I believe should be separately addressed in the review of the Privacy Act. I am not necessarily hostile to such changes but will need to consider them further and these may be matters that people will wish to make submissions on in that review. As my 1994 submission indicated, I do not necessarily agree with the Commission's approach in this matter but remain open to be convinced.

7.10 If changes are required, there are alternatives to what the Commission proposed in its draft report. In the Privacy Act context, it may be preferable to consider removing the "readily retrievable" condition precedent to the access rights in information privacy principle 6 than removing the corresponding reason for refusal. This would have the effect of removing any redundancy without reducing individual rights. Removal of the ground for withholding information without amendment to the principle would leave it open to a private sector agency to claim that because the information is not readily retrievable, the request failed to qualify as a valid request under the Act. This would arguably not be reviewable under the Act and would involve potentially time consuming challenges to my jurisdiction. Removing the same words from the principle while retaining the reason for refusal, would on the other hand mean that I could investigate a complaint and conclude that the respondent had a valid ground for refusing the request. Consistency with the Official Information Act could be achieved by removing the same conditions precedent from section 24.

8.0 Reference 7: Compliance with the requirements of Ombudsman

8.1 The seventh term of reference is to:

Consider, with particular reference to section 29A of the Act, what the responsibilities of decision makers should be vis-a-vis the Ombudsman, where the decision maker's actions are subject to a review by the Ombudsman.

8.2 I understand from the Law Commission's provisional recommendations (February 1997) that this reference has been considered not only in relation to section 29A of the Act but also in respect of sections 19 and 20 of the Ombudsman Act 1975. I have already commented in respect of the time limits in section 29A(1) and the only other issue I wish to mention concerns section 19(5) of the Ombudsman Act.

8.3 Section 19(5) of the Ombudsman Act provides that: Every person shall have the same privileges in relation to the giving of information, the answering of questions, and the production of documents and papers and things as witnesses have in any court. There is similar provision in section 94(1) of the Privacy Act which states: Except as provided in section 119 of this Act, every person shall have the same privileges in relation to the giving of information to, the answering of questions put by, and the production of documents and things to, the Commissioner or any employee of the Commissioner as witnesses have in any court.

8.4 In other contexts I have argued the case for change in respect of the provision in the Privacy Act and I will mention it briefly here. However, it is conceivable that the problem of respondent agencies refusing to cooperate with the Ombudsman is less of a problem, given the public sector jurisdiction, than is conceivably the problems I face with the sometimes less cooperative private sector. However, there is an amendment to the Ombudsmen Act presently before the House.

8.5 Access reviews which the Ombudsman carries out under the Official Information Act, and which I carry out in respect of information privacy principle 6, involve viewing documents which have been withheld and expressing an opinion as to whether there was a proper basis for withholding that information. Prior to expressing a formal opinion the Ombudsman's office and my own often seek to achieve a resolution of complaints through encouragement, explanation and negotiated release. The creation of the review function by both the Ombudsman and myself has been an attempt to find a nonjudicial means for resolving disputes of this kind. That has meant that both our procedures are more inquisitorial than the traditional adversarial approach taken in courts. The benefits of this approach are, I believe, profound, although I will not outline them here. However, the essential point is that I need to see documents even if there may be a ground on which they are legitimately withheld from the individual. This can include where an assertion of legal professional privilege is made out. Accordingly, I take the view that it is desirable for the Ombudsman to be able to assess claims of privilege under their jurisdiction and for me to do the same in mine.

8.6 An issue of considerably lesser importance, but nonetheless worth mentioning in this context, is the fact that the legislation is drafted by reference to "the same privileges...as witnesses have in any court". In my submission to the Law Commission in respect of the privilege against self incrimination I suggested that while the shorthand drafting is convenient for the drafter of the law:

it is not as helpful as it might be to the user of the information statute and, for example, if the only privilege intended to be referred to is the privilege against self incrimination, then this should be specified so as to avoid assertion of other privileges such as legal professional privilege, spousal privilege and the many others that may exist;
that the relevance of privileges, developed for an adversarial court-based process, should be reassessed in the context of an inquisitorial system (although I would certainly accept that the privilege against self incrimination in respect of a breach of the Privacy Act in my case, or a breach of the Official Information Act in the case of the Ombudsmen, may well be appropriate privileges to retain even in our inquisitorial type processes).

9.0 Reference 8: Order in Council procedure

9.1 The eighth term of reference is to: "Consider the appropriateness of the Order in Council procedure prescribed by sections 32-34 of the Act and whether there should be any change to those provisions."

9.2 There is no equivalent of the Order in Council procedure prescribed by sections 32, 33A, 33B and 33C of the Act in the Privacy Act, nor am I aware of any particular privacy issues arising from the process. Accordingly, I have no general comments to make.

9.3 I note in passing that sections 33 and 34 mentioned in the term of reference do not really seem to relate to the Order in Council procedure at all. Section 33 does have an equivalent in section 75 of the Privacy Act, although that provision is modelled upon the Human Rights Commission Act 1977 rather than the Official Information Act. I have no comment to make on it. Section 34 has no direct equivalent and again I have no comment.

10.0 Reference 9: Diplomatic documents

10.1 The ninth term of reference is to:

"Consider whether there should be special rules governing the treatment of some or all classes of diplomatic documents."

10.2 In the Law Commission's provisional recommendations (February 1997) it is suggested that sections 6(a), 6(b), 7, 10 and 31 of the Act and section 20 of the Ombudsman Act were the relevant provisions. Most of these provisions have equivalent in the Privacy Act. See particularly sections 27 and 32.

10.3 If the outcome of your review is likely to recommend the repeal or amendment of these sections I would appreciate the opportunity to discuss the matter with you. This is because there are similar provisions in the Privacy Act which may require consideration and I have not yet formed any firm views on these matters.

10.4 It is also possibly the case that repeal of the grounds for withholding information where its release may prejudice international relations and such like may lead, on some occasions, to reliance on the privacy withholding ground on a case-by-case basis. This is because sometimes diplomatic documents will refer to individuals and therefore an access review would need to be considered in those terms. However, I expect that total repeal is unlikely to be recommended as most such access laws around the world allow for withholding on these grounds and a change of practice may be viewed unfavourably by jurisdictions which transfer information to us. Nonetheless, there may be a case for reform of the sections, involving more clarity, or even moving them into the part of the Act having a public interest override. On those proposals I have no comment as there is no particularly distinctive privacy perspective on the issue.

BH Slane
Privacy Commissioner

14 April 1997

APPENDIX 1: Suggested supplementary terms of reference
APPENDIX 2: Submission of 14 June 1994
APPENDIX 3: British Columbia decisions authorising a public body to disregard requests

March 31, 1994

Ms. Cynthia Bowen
Manager, Communications
British Columbia Lottery Corporation
10760 Shellbridge Way,
Richmond, BC.V6X 3H3

Dear Ms. Bowen

RE: SECTION 43 APPLICATION

I have had the opportunity of reviewing your request under section 43 to disregard the section 5 requests made by the respondent, on the grounds that, because of their repetitious or systematic nature, they would unreasonably interfere with the operations of the public body, in this case the British Columbia Lottery Corporation (BCLC).

As the purpose of the Freedom of Information and Protection of Privacy Act is to make government bodies more accountable to the public by giving the public a right of access to records, authorization to disregard must be given sparingly and only in obviously meritorious cases. Granting section 43 requests must be the exception to the rule, and not a routine option for public bodies to avoid their obligations under the legislation.

With respect to your application, however, I am satisfied that the respondent's requests are repetitious and systematic, and unreasonably interfere with the operations of the public body.  I am basing my decision on the following factors:

1. The respondent's 1,600 requests for records in a four month period constitute a repetitious request.
2. These requests are part of a systematic attempt by the respondent to cause problems for BCLC, as evidenced by the respondent's own statements.
3. The history of the relationship between the respondent and BCLC supports the argument that the respondent's requests are of a systematic nature.
4. The BCLC has spent over 200 hours responding to the respondent's requests, and estimates a further 7,000 hours will be needed to respond to the remaining requests.
5. The cost of responding to the remaining requests would likely exceed $200,000 and would unreasonably interfere with the operation of BCLC.
6. That every response given to the respondent by BCLC has a multiplying effect in that the responses generate volumes of new requests for records from the respondent on the same or related subjects.
7. It is unlikely that the respondent's concerns about BCLC, real or imagined, will ever be addressed through the disclosure of the records requested.
8. Of the 21 letters from the respondent requesting information, BCLC had responded in good faith to the first 13 before making application under section 43.

I do not believe that the respondent should have his/her access rights under the Act denied permanently. This would be an obvious breach of natural justice and an unreasonable curtailment of the respondent's information rights.

Therefore, I am granting authorization to BCLC to disregard the respondent's outstanding requests and to disregard any other request the respondent may make until September 31, 1994. Thereafter until March 31, 1995, the respondent will be restricted to requesting five records at any given time, and shall not request a further five records until such time as BCLC has responded to the outstanding requests. Of course, BCLC will be expected to respond to those requests within the 30 day time period, subject to the extensions as permitted in the Act.

Yours Truly

David H. Flaherty, Commissioner

c.c. the respondent

May 27, 1996

Karen McDonald
Freedom of Information Administrator
BC Hydro
333 Dunsmuir Street
Vancouver, British Columbia V6B 5R3

Dear Ms. McDonald

Re: Section 43 Application

I have had the opportunity of reviewing your request under section 43 for authorization to disregard the section 5 requests made by the respondent. Section 43 gives me the power to authorize a public body to disregard requests under section 5 that, because of their repetitious or systematic nature, would unreasonably interfere with the operations of the public body.

As the purpose of the Freedom of Information and Protection of Privacy Act is to make government bodies more accountable to the public by giving the public a right of access to records, authorization to disregard must be given sparingly and only in obviously meritorious cases. Granting section 43 requests must be the exception to the rule, and not a routine option for public bodies to avoid their obligations under the legislation.

I have carefully considered your submission as well as material provided to this Office by the respondent.

I am satisfied that the respondent's requests are repetitious and systematic and that responding to those requests unreasonably interfere with the operations of BC Hydro.

Therefore, I am granting authorization to BC Hydro to disregard the following requests made by the respondent:

All requests for records in any way relevant to the work the respondent performed for BC Hydro in 1993 and the respondent's subsequent small claims action, retroactive to April 24, 1996;

All requests for records regarding a company, retroactive to April 24, 1996;

All requests of any kind until May 27, 1997. I rejected BC Hydro's request for a three-year period, because I consider one year reasonable in the present circumstances.

Sincerely yours

David H. Flaherty Commissioner

Decision of 23 August 1996

In the Case of an Application for Authorization to Disregard Requests from a Respondent under Section 43 of the Freedom of Information and Protection of Privacy Act (the Act)

by Joan Hesketh, Assistant Deputy Minister, Ministry of Employment and Investment

I have had the opportunity of reviewing the application under section 43 of the Freedom of Information and Protection of Privacy Act (the Act) for authorization to disregard section 5 requests made by the respondent.

Section 43 gives me the power to authorize a public body to disregard requests under section 5 that, because of their repetitious or systematic nature, would unreasonably interfere with the operations of the public body, in this case the Ministry of Employment and Investment (the Ministry).

Since the purpose of the Act is to make government bodies more accountable to the public by giving the public a right of access to records, authorization to disregard must be given sparingly and only in obviously meritorious cases. Granting section 43 requests should be the exception to the rule and not a routine option for public bodies to avoid their obligations under the legislation.

Based on a detailed review of the submissions and the response of the respondent, the following factors have led me to decide that the respondent's access requests are repetitious, systematic, and unreasonably interfere with the operations of the Ministry:

1. The Reasons for Decision and Determination of the Chief Gold Commissioner in the dispute between [third parties] and [the respondent], dated November 25, 1994.

2. The Supreme Court of British Columbia's dismissal of [the respondent]'s petition to judicially review the order of the Chief Gold Commissioner,  [date].

3. The evidence that [the respondent] is trying to use the Act to prove that the determination made against [the respondent] by the Chief Gold Commissioner was wrong and that the Chief Gold Commissioner, along with other Ministry staff, were biased and acted improperly and criminally.

4. [The respondent] has made 43 percent of the total number of requests for records to the Ministry over the last 2.5 years for a total of 145 up to July 25, 1996. This includes 40 requests between June 13, 1996 and July 25, 1996.

5. The Ministry conservatively estimates that it has spent 500 hours responding to [the respondent]'s requests and that to answer [the respondent]'s outstanding requests would require an additional 120 hours.

6. The evidence that [the respondent] is habitually, persistently, and in bad faith making excessive and irrational requests and demands on the Ministry.

7. The evidence that responding to [the respondent]'s requests has dramatically limited the time that the Ministry's staff can devote to requests from other applicants.

8. The evidence that [the respondent] is not using the Act for the purpose for which it was intended and that any further continuations of these actions could place the Act in great disrepute.

9. The evidence that the Ministry has exercised considerable restraint and has made every effort to assist [the respondent] and to respond without delay to [the respondent] openly, accurately, and completely.

10. Finally, I reject the submission of [the respondent] that my Office is biased against [the respondent] in any way or in some kind of conflict of interest.

Therefore, I authorize the Ministry to disregard the following: 

1. All outstanding requests for records by [the respondent].

2. All future requests for records which relate to mineral claims of [the respondent], the dispute with [third parties], and the allegations of wrongdoing by the Ministry.

3. All requests for any kind for a period of one year by [the respondent].
The above apply to requests for records made by [the respondent], [four named parties associated with the respondent], or any other request in which [the respondent] is the "directing mind."

August 23, 1996

David H. Flaherty
Commissioner 
 

Decision of 30 August 1996

In the Case of an Application for Authorization to Disregard Requests from [a Respondent] under Section 43 of the Freedom of Information and Protection of Privacy Act (the Act) by the Vancouver School Board (VSB)

I have had the opportunity of reviewing the application of the Vancouver School Board under section 43 of the Freedom of Information and Protection of Privacy Act (the Act) for authorization to disregard section 5 requests made by [the respondent].

Section 43 gives me the power to authorize a public body to disregard requests under section 5 that, because of their repetitious or systematic nature, would unreasonably interfere with the operations of the public body, in this case the Vancouver School Board.

Since the purpose of the Act is to make government bodies more accountable to the public by giving the public a right of access to records, authorization to disregard must be given sparingly and only in obviously meritorious cases. Granting section 43 requests should be the exception to the rule and not a routine option for public bodies to avoid their obligations under the legislation.

Based on a review of the submissions of the Vancouver School Board, its documentation of each access request made by [the respondent], and [the respondent]'s extensive response to the Vancouver School Board's submissions, the following factors have led me to decide that [the respondent]'s access requests are repetitious, systematic, and unreasonably interfere with the operations of the School Board:

1. The Vancouver School Board spent well over 100 hours responding to [the respondent]'s 21 requests in 1995, plus hours spent on mediation, and over 90 hours of staff time in participating in Order No. 110-1996, June 5-1996.

2. [The respondent]'s access requests comprised over 60 percent (21 of 34) of the formal requests to the Vancouver School Board in 1995 and 75 percent (9 of 12) of the requests received so far in 1996. The Vancouver School Board has already responded to 6 of the latter. Overall, [the respondent] has made 65 percent (30 out of 46) of the access requests to the Vancouver School Board in 1995-96. [The respondent] submitted another request on July 24, 1996.

3. My conclusion based on the evidence submitted by the Vancouver School Board and [the respondent] is that [the respondent] is not using the Act for the purposes for which it was intended and that [the respondent] is  not, indeed, acting in good faith. (See Order No. 110-1996, June 5-1996, pp. 5-6).

4. My conclusion based on the evidence submitted by the Vancouver School Board and [the respondent] is that [the respondent] is using the Act as a weapon against the Vancouver School Board after an episode in the workplace that has left [the respondent] unhappy and preparing to arbitrate a claim of unjust dismissal.

5. The evidence submitted by the Vancouver School Board is that the systematic and repetitious nature of [the respondent]'s requests to the Vancouver School Board and of [the respondent]'s appeals at its responses is unreasonably interfering with the operations of the Vancouver School Board.

6. My conclusion based on the evidence submitted by the Vancouver School Board is that [the respondent] is habitually, persistently, and in bad faith making excessive and irrational requests and demands on the Vancouver School Board. For purposes of this conclusion, I have adopted the tests of  reasonableness and abuse of process set out by Ontario Information and Privacy Commissioner, Tom Wright, in Order M-618, October 18-1995, involving the London Police Services Board.

7. The evidence submitted by the Vancouver School Board that responding to [the respondent]'s requests has dramatically limited the time that the Vancouver School Board's staff can devote to requests from other applicants under the Act.

8. My conclusion based on the evidence submitted by the Vancouver School Board and [the respondent] is that [the respondent] is not using the Act for the purpose for which it was intended and that any further continuation of these actions could place the Act in disrepute. The Act must not become a weapon for disgruntled individuals to use against a public body for reasons that have nothing to do with the Act.

9. The evidence submitted by the Vancouver School Board is that it has exercised considerable restraint and has made every effort to assist [the respondent] and to respond without delay to [the respondent] openly, accurately, and completely.

10. Finally, I reject the submission of [the respondent] that my Office has treated [the respondent] unfairly. On the basis of the materials submitted by [the respondent], I have concluded that my staff has acted appropriately and fairly in its administration of the application.

Therefore, I authorize the Vancouver School Board to disregard the following:

1. All outstanding requests for records by [the respondent].

2. All future requests for records which relate to the Carnegie Community Centre and the Carnegie Adult Learning Centre.

3. All requests of any kind by [the respondent] for a period of one year.

August 30, 1996

David H. Flaherty
Commissioner 
 

Decision of 31 October 1996

In the Case of an Application for Authorization to Disregard Requests from [two Respondents] under Section 43 of the Freedom of Information and Protection of Privacy Act (the Act) by B.C. Transit Corporation 

I have had the opportunity of reviewing this application under section 43 of the Freedom of Information and Protection of Privacy Act (the Act) for authorization to disregard section 5 requests made by [two respondents], who are both employees of B.C. Transit Corporation.

Section 43 gives me the power to authorize a public body to disregard requests under section 5 that, because of their repetitious or systematic nature, would unreasonably interfere with the operations of the public body, in this case the B.C. Transit Corporation.

Since the purpose of the Act is to make government bodies more accountable to the public by giving the public a right of access to records, authorization to disregard requests must be given sparingly and only in obviously meritorious cases. Granting section 43 requests should be the exception to the rule and not a routine option for public bodies to avoid their obligations under the legislation.

Based on a detailed review of the submissions of B.C. Transit and the reply submission of [the two respondents], the following factors have led me to decide that [the two respondents]'s access requests are repetitious, systematic, and unreasonably interfere with the operations of B.C. Transit in relation to both its Information and Privacy Office and its Customer Service operations:

1. B.C. Transit received 227 formal access requests under the Act between October 4, 1993 and June 13, 1996. [The two respondents] have been responsible for over one quarter of this total (58 requests). Seventeen of these requests were received during the sixty day period before June 13, 1996, when the head of B.C. Transit formally applied for a section 43 ruling. [The two respondents] accounted for 63 percent of all access requests to B.C. Transit during this sixty-day period.

2. The evidence submitted by B.C. Transit that [the two respondents] act in concert with respect to their access requests.

3. The evidence submitted by B.C. Transit that its Director of Information and Privacy is the only full-time employee dedicated to access and privacy activities, including promoting openness, applying fair information practices, and actively participating in ongoing policy development related  to access and privacy matters.

4. The evidence submitted by B.C. Transit that the requests made by [the two respondents] have had a significant negative impact on the operations of its Information and Privacy Office and significantly and unreasonably interfered with its Director's discharge of his access and privacy duties under the Act.

5. The evidence submitted by B.C. Transit that the requests made by [the two respondents] have had a significant negative impact on the operations of its Customer Service Department, which is responsible for running buses and other transit operations, the core of B.C. Transit's public mandate.

6. The submission of B.C. Transit that the requests made by [the two respondents] have the effect of using the Act as a weapon of information warfare, which has the consequence of undermining its legitimacy amongst the managers and other employees whose cooperation is required in order for its access and privacy regime to work properly.

7. The submission of B.C. Transit that the intention of the powers conferred upon the Commissioner under section 43 of the Act is remedial: “they are intended to allow the Commissioner considerable discretion in ensuring the access rights granted by the Act are not abused to the detriment of other access requesters or in a way that unreasonably interferes with the public interest in efficient public body administration."

Therefore, I authorize B.C. Transit to disregard all requests for access from either [of the two respondents] for a period of one year from and after June 13, 1996. After the year has elapsed, B.C. Transit is required to deal with only one request at any given time from, or on behalf of, each of the aforementioned persons for the period ending June 13, 1998.

October 31, 1996

David H. Flaherty
Commissioner